SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
March 31, 2016 (MMuñoz)
GUARDIANSHIP
As we know there are two (2) kinds of GUARDIANSHIP
PROCEEDINGS
1. FOR MINORS
2. FOR INCOMPETENTS
Guardianship over minors is governed by SPECIAL RULE AM
03-02-05-SC.
Guardianship over incompetents is governed by RULES 92-
97.
The remaining rules that were not amended were superseded
by the SPECIAL RULES on GURADIANSHIP over MINORS.
GUARDIANSHIP – The power of protective authority given
by law and imposed on individual who is free and in the
enjoyment of his rights, over one whose weaknesses on
account of his age or other infirmity renders him unable to
protect himself.
WHY DO MINORS AND INCOMPETENTS NEED GUARDIANS?
By reason of age or infirmity these render them unable to
protect themselves
For minors it is the age, they are too young.
For the incompetents it would be some sort of infirmity that
they are suffering that would render them unable to protect
themselves.
And because they are not in full capacity of their civil rights
they need somebody who can take care of them and handle
their affairs. That is why you have the concept of
GUARDIANDHIP.
Take note that Guardian -who is someone or an individual who
is free in the enjoyment of his rights. Therefore a guardian is
someone who is not suffering from any infirmity or from
minority. The guardian must be in his full enjoyment of his civil
rights.
WHAT IS THE NATURE OF GUARDIANSHIP?
A trust relation of the most sacred character in which one
person called the guardian acts for another called the ward,
whom the law regards as incapable o managing his own
affairs. A guardianship is designed to further the wards well-
being, not that of the guardian. It is intended to preserve the
ward’s property, as well as to render any assistance that the
ward may personally require. It has been stated that while
custody involves immediate care and control, guardianship
indicates not only those responsibilities, but those of one in
loco parentis as well.
So a guardian must be someone who looks for the interest of
the ward. So because of that the nature of the guardianship is
one of Trust relation, it is Fiduciary in nature.
WHO IS A GUARDIAN?
A guardian is a person in whom the law has entrusted the
custody and control of the person or estate or both of an
insane or other person incapable of managing his own affairs.
Kinds as to scope:
 GENERAL – those appointed by the court to have the
care and custody over the person of the ward or over
his property.
 LIMITED- over the property of the ward only
As to Constitution:
 GENERAL GUARDIAN
 LEGAL GUARDIAN – without judicial appointment
 GUARDIAN AD LITEM
LEGAL GUARDIANS is one who is considered as such
without judicial appointment.
Under the family code you have the parents as the legal
guardian of the minor children.
Now in the report, you have mentioned the natural guardian,
where did you get that natural guardian. There is no such
thing as natural guardian. It is LEGAL GUARDIAN, that is what
the law defines.
The law considers the parents as the legal guardian not natural
guardian, you mean there is unnatural guardian. There is no
such thing as natural guardian.
In so far as the person and property of the minor children
GUARDIAN AD LITEM is in essence a form of a limited
guardianship because the guardian here is appointed by the
court to prosecute or defend a minor, insane or a person
declared to be incompetent in that particular case or in that
particular action in court.
So very limited yung scope niya.
Ito yung LEGAL GUARDIANS na sinasabi natin, the father or
the mother, shall jointly exercise legal guardianship over the
person and property of their minor without a necessity of a
court appointment. In such case as AM 03-02-05-SC shall be
suppletory to the provisions of the Family Code on
Guardianship.
So this is what the law considers as legal guardian:
- The father
- The mother
In so far as the person and property over the minor children
are concerned.
Family Code. Art. 225. The father and the mother shall
jointly exercise legal guardianship over the property of the
unemancipated common child without the necessity of a court
appointment. In case of disagreement, the father's decision
shall prevail, unless there is a judicial order to the contrary.
Where the market value of the property or the annual income
of the child exceeds P50,000, the parent concerned shall be
required to furnish a bond in such amount as the court may
determine, but not less than ten per centum (10%) of the
value of the property or annual income, to guarantee the
performance of the obligations prescribed for general
guardians.
A verified petition for approval of the bond shall be filed in the
proper court of the place where the child resides, or, if the
child resides in a foreign country, in the proper court of the
place where the property or any part thereof is situated.
The petition shall be docketed as a summary special
proceeding in which all incidents and issues regarding the
performance of the obligations referred to in the second
paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory
except when the child is under substitute parental authority, or
the guardian is a stranger, or a parent has remarried, in which
case the ordinary rules on guardianship shall apply. (320a)
RIVERO vs CA: When Guardian Ad Litem is appointed by the
court, such guardian is considered as officer of the court, not
just a representative of the minor or the ward but also an
officer of the court.
So the office of GUARDIAN AD LITEM is to represent the
interest of the incompetent or the minor.
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Take note that the appointment of GUARDIAN AD LITEM is
discretionary by the court. Take into account the best
interest of the ward and the promotion of justice.
So in appointment a guardian ad litem the court will only
determine what are individual or whom the guardian is
imposed to those incapable of handling personal or financial
affairs as to warrant the need for appointment of a temporary
guardian.
Based on that a guardian is also considered as temporary, so it
is TEMPORARY IN NATURE.
WHO ARE THE SUBJECTS OF GUARDIANSHIP?
MINOR
o a person below 18 years of age
INCOMPETENTS (Sec. 2 Rule 92)
RULE 92. Section 2. Meaning of word "incompetent." -
Under this rule, the word "incompetent" includes :
- persons suffering the penalty of civil interdiction or
- who are hospitalized lepers,
- prodigals,
- deaf and dumb who are unable to read and write,
- those who are of unsound mind, even though they
have lucid intervals, and
- persons not being of unsound mind, but by reason of
age, disease, weak mind, and other similar causes,
cannot, without outside aid, take care of themselves
and manage their property, becoming thereby an
easy prey for deceit and exploitation.
So the enumerations are not exclusive, there are other
instance which are not mentioned that maybe allowed and
these person considered as incompetents.
In determining whether a person is incompetent there should
be CLEAR, POSITIVE AND DEFINITE EVIDENCE.
It cannot just be based on hearsay, cannot be based on
speculations, you have to have a clear, positive and definite
evidence for concluding that a person is incompetent.
Cases:
CATALAN vs. BASA
- The person here is suffering from Schizophrenia or a
Schizophrenic person (multiple personalities, it is a
form of psychosis)
- According to the SC the person suffering from
schizophrenia is NOT necessarily incompetent
- Why? Because it has been proven that the
administration of a correct medicine helps the patient,
antipsychotic medications help bring biochemical
imbalances closer to normal in a schizophrenic.
- Medications reduce delusions, hallucinations and
incoherent thoughts and reduce or eliminate chances
of relapse.
So because of modern science, because of advancement in
modern medicine certain cure or certain medications were
discovered and proven to be effective in persons suffering
from Schizophrenia that tend to balance their chemical
imbalances that would reduce their episodes of psychosis.
In that case the SC concluded that Schizophrenic person is not
necessarily incompetent.
Siguro kung hindi siya maka afford pambili ng gamut, that
would render him incompetent.
OROPESA vs OROPESA:
- Incompetent does not refer to a person who performs
on the average domains that were tested
- Is capable of mental calculations
- Can provide solutions to problem situations
So take note if your ground for having a person declared as
incompetent is insanity for instance or not of unsound mind
then there has to be a psychological test that will be
conducted and it must be proven in court.
But if the psychological test would show that the person that
was tested gets an average rating in the domains that were
tested or is capable of mental calculations or can provide
solutions to problem situations then that person is not
incompetent that is the ruling of the SC in the case of
OROPESA vs. OROPESA.
So if you have a client asking you to declare a person to be
incompetent or asking you whether or not he is incompetent
such that they need to petition in court for appointment of
guardian over person alleged incompetent, when you give that
person mathematical problems and see if he is capable of
mental calculations, if he is capable of providing solutions to
problem situations, because if he is, then forget about it, that
person is not incompetent.
EXAMPLES OF INCOMPETENT:
- Comatose
- Semi-comatose
- Victim of Stroke
- Cerebrovascular accident
- Without motor and mental faculties
- With the diagnosis of brain stem infarct
So yung nakaratay na, bedridden, vegetable, he is an
incompetent person, incapable of mental calculations, cannot
even wake up, he cannot even understand, he is not
conscious. So in that case that person is believed to be
incompetent.
Severe affliction of Diabetes Mellitus with complications with
atherosclerotic cardiovascular disease aggravated by obesity.
(HERNANDEZ vs. SAN JUAN) – The SC declared “Lulu” here
as incompetent.
WEAK MENTAL CONDITION
But take note a person who is alleged to be of weak mental
condition.
Does not require expert psychiatric opinion
Like I said kahit na ikaw you can ask questions, you can give
problems to that person and he is capable of mental
calculations or able to provide solution to problem situations,
you can readily conclude that that person is noti ncompetent
In the case of HERNANDEZ v SANTOS the SC said that if a
person alleged to be of weak mental condition it is not
imperative that you resort to expert psychiatric opinion to rule
that fact.
Under Section 50, Rule 130 of the Rules of Court:
RULE 130. Section 50. Opinion of ordinary witnesses. — The
opinion of a witness for which proper basis is given, may be
received in evidence regarding —
(a) the identity of a person about whom he has
adequate knowledge;
(b) A handwriting with which he has sufficient
familiarity; and
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
(c) The mental sanity of a person with whom he is
sufficiently acquainted.
The witness may also testify on his impressions of the
emotion, behavior, condition or appearance of a person. (44a)
Observation of trial judge coupled with evidence establishing
the person state of mental sanity would suffice.
(HERNANDEZ vs. SANTOS)
Even the court, the trial court judge could rely on his own
observations, as to the demeanor and behaviour of the person
alleged to be of weak mental condition during his witness in
court.
WHERE DO YOU FILE YOUR PETITION FOR GUARDIANSHIP?
INCOMPETENT:
RTC
- RESIDENT – PLACE OF RESIDENCE OF THE WARD
- NON RESIDENT – WHERE THE PROPERTY IS
LOCATED
MINOR:
FAMILY COURT
- RESIDENT – PLACE OF RESIDENCE OF THE MINOR
- NON RESIDENT – WHERE THE PROPERTY IS
LOCATED
*RESIDENCE HERE IS SIMILAR TO THE CONCEPT OF
DOMICILE.
Take note that you have two categories both in incompetents
and minors:
1. The resident; and
2. The non resident
If it is a non resident ward may it be an incompetent or a
minor then you have to file the petition in the place where the
property is located.
So if you are applying ONLY for GUARDIANSHIP OVER THE
PROPERTY OF THE WARD and NOT over his PERSON, still you
have to comply the requirement of VENUE.
If it is a MINOR, pero non-resident siya only properties niya
ang aalagaan mo but still you have to go to the FAMILY
COURT, you do not go to the RTC even if what is involved is
the property of the ward but you go to the FAMILY COURT,
because that is where the petition should be filed.
Same thing with INCOMPTENTS, if it is incompetent not a
minor and he is a non- resident incompetent then you go to
the RTC, and file your petition there, where the property is
located.
So that brings us to the question last report.
AS TO WHAT PROCEEDING WILL YOU RESORT TO IS
THE WARD IS BOTH AN INCOMPETENT AND A MINOR?
The answer of the group is file it with the RTC because he is
incompetent, that is wrong.
File it with the FAMILY COURT because the determining point
there is the MINORITY of the ward.
Eh ito nga property lang niya not over his person ang a-
applyan mo ng guardianship pupunta ka talaga ng FAMILY
COURT how much more if you are applying for guardianship
over the PERSON of the ward and the ward happens to be a
MINOR. You go to the Family Court.
Even a criminal case involving a minor, e di-dismiss yan ng
RTC ililipat sa FAMILY COURT, because ONLY FAMILY
COURTS HAS JURISDICTION OVER MINORS.
So there is no Ifs and BUTs about it, if what is involved is a
minor go to the family court. It is a no brainer for you
automatic dapat yan.
Although it is VENUE it maybe waived but in so far as the
JURISDICTION OF THE FAMILY COURT it is not a case of
venue. JURISDICTIONAL TALAGA YAN EH. YOU READ THE
FAMILY COURTS ACT. So automatic yan, go to the family
court.
SITUATION:
Both incompetent and minor
- you file it with Family Court
TRANSFER OF VENUE
- The Special Rules have no similar provisions on
transfer of venue.
- Therefore it would seem that the Rules of Court on
the transfer of venue governing incompetents would
apply only in cases of INCOMPETENTS.
GROUND: that the ward has transferred his bona fide
residence to a real property acquired by the ward in another
province or municipality.
Now take note that once there is transfer of venue or when
that happens or when there is transfer of residence by the
ward in another municipality or province the court can direct
the transfer of the proceedings to the place of residence of the
incompetent and there is no need of any payment of filing
fees, no additional court fees are required the new court has
jurisdiction to continue the proceedings in that new place
residence.
WHO MAY PETITION?
INCOMPETENT (Section 1 Rule 93)
- any relative
- friend
- other person on behalf of the incompetent without
parents or lawful guardians
- Director of Health in favour of an insane person
hospitalized or in favour of the isolated leper
RULE 93. Section 1. Who may petition for appointment of
guardian for resident. - Any relative, friend, or other person on
behalf of a resident minor or incompetent who has no parent
or lawful guardian, or the minor himself if fourteen years of
age or over, may petition the court having jurisdiction for the
appointment of a general guardian for the person or estate, or
both, of such minor or incompetent. An officer of the Federal
Administration of the United States in the Philippines may also
file a petition in favor of a ward thereof, and the Director of
Health, in favor of an insane person who should be
hospitalized, or in favor of an isolated leper.
MINOR (Section 2 of the Special Rules)
- Any relative
- Other person on behalf of the minor
- Minor himself if fourteen years of age or over
- Secretary of Social Welfare and Development and by
the Secretary of Health in the case of an insane minor
who needs to be hospitalized
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 2. Who may petition for appointment of guardian. – On
grounds authorized by law, any relative or other person on
behalf of a minor, or the minor himself if fourteen years of age
or over, may petition the Family Court for the appointment of a
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
general guardian over the person or property, or both, of such
minor. The petition may also be filed by the Secretary of Social
Welfare and Development and by the Secretary of Health in
the case of an insane minor who needs to be hospitalized.
So in this case you have several persons who can file.
NON-RESIDENT WARD
- Any relative
- Friend
- Anyone interested in the estate of the person liable to
be put under guardianship may file over the property
of such person
- The notice here shall be published in a newspaper of
general circulation in the province where the property
is located.
So you have to show interest in the estate of the ward if
you are going to file a petition for guardianship over the
estate of a NON-RESIDENT WARD.
MARRIED INCOMPETENT/ INCAPACITATED PERSON
WHO CAN PETITION? OR IS HE SUBJECT TO GUARDIANSHIP?
1. Article 124 of the Family Code
Which also deals with married incapacitated person
WHAT DOES IT SAY?
Family Code. Art. 124. The administration and
enjoyment of the conjugal partnership shall belong to
both spouses jointly. In case of disagreement, the
husband's decision shall prevail, subject to recourse
to the court by the wife for proper remedy, which
must be availed of within five years from the date of
the contract implementing such decision.
In the event that one spouse is incapacitated or
otherwise unable to participate in the
administration of the conjugal properties, the other
spouse may assume sole powers of administration.
These powers do not include disposition or
encumbrance without authority of the court or the
written consent of the other spouse. In the absence
of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of
the consenting spouse and the third person, and may
be perfected as a binding contract upon the
acceptance by the other spouse or authorization by
the court before the offer is withdrawn by either or
both offerors. (165a)
So you have a situation here, the proposed ward is
alleged to be incapacitated and he has properties left.
NOW DO YOU NEED A GUARDIANSHIP PROCEEDING
FOR THAT?
Now that was clarified in the case of:
UY vs. JARDELEZA: The situation contemplated
under Article 124 of the FC is where, where the
spouse is absent, or separated in fact, or has
abandoned the other, or consent is withheld or
cannot be obtained. So that is the situation that
obtains under Article 124 of the FC.
But is the incapacitated spouse or incompetent to
give consent then Article 124 will not apply rather
guardianship rules will apply, take note of that.
Article 124 only contemplates a situation where the
spouse is absent, separated in fact, or has abandoned
the other, or consent is withheld or cannot be
obtained.
2. GUARDIANSHIP PROCEEDING
But when the spouse is incapacitated or incompetent
to give consent then you need to institute
guardianship proceeding.
GROUNDS FOR PETITION
MINORS (SECTION 4, AM 03-02-05-SC)
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 4. Grounds of petition. - The grounds for the
appointment of a guardian over the person or property, or
both, of a minor are the following:
(a) death, continued absence, or incapacity of his parents;
(b) suspension, deprivation or termination of parental
authority;
(c) remarriage of his surviving parent, if the latter Is found
unsuitable to exercise parental authority; or
(d) when the best interests of the minor so require.
Even if the parents are still alive, even if there are person who
exercise parental authority over the minors, if it is for the best
interest of the child that guardianship be appointed then that
can be granted. You can apply for guardianship.
NONE PROVIDED FOR INCOMPETENTS – take note that in
so far as incompetents are concerned there is no specific
ground provided under the Rules of Court.
Same thing with QUALIFICATIONS OF GURADIAN there is no
specific enumerations or qualifications for guardians over
incompetents under the Rules of Court.
QUALIFICATIONS OF GUARDIAN
MINORS (SECTION 5, AM 03-02-05-SC)
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 5. Qualifications of guardians. – In appointing a guardian,
the court shall consider the guardian’s:
(a) moral character; (b) physical, mental and psychological
condition;
(c) financial status;
(d) relationship of trust with the minor; (e) availability to
exercise the powers and duties of a guardian for the full period
of the guardianship;
(f) lack of conflict of interest with the minor; and
(g) ability to manage the property of the minor.
NONE PROVIDED FOR INCOMPETENTS.
WHO MAY BE APPOINTED?
The Special Rules provide for an order of preference but no
such order of preference found under the Rules of Court.
MINORS (SECTION 6, AM 03-02-05-SC)
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 6. Who may be appointed guardian of the person or
property, or both, of a minor. – In default of parents or a
court-appointed guardian, the court may appoint a guardian of
the person or property, or both, of a minor, observing as far as
practicable, the following order of preference:
(a) the surviving grandparent and In case several
grandparents survive, the court shall select any of them taking
Into account all relevant considerations; (the first to enjoy
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
the order of preference)
(b) the oldest brother or sister of the minor over twenty-one
years of age, unless unfit or disqualified;
(c) the actual custodian of the minor over twenty-one years of
age, unless unfit or disqualified; and
(d) any other person, who in the sound discretion of the court,
would serve the best interests of the minor.
So the order of preference will only apply to the appointment
of guardians over minors.
INCOMPETENTS – NONE IN THE RULES OF COURT.
May NON-RESIDENTS be appointed GUARDIANS?
VANCIL vs. BELMES: The SC said NO court should not
appoint persons as guardians who are not within the
jurisdiction of our courts for they will find it difficult to protect
the minors.
The very essence of guardianship is for someone to take care
of the person or property or the affairs of the ward. If he is not
around to do that, what is the point of appointing him as a
guardian?
CONTENTS OF PETITIONS
MINORS (SECTION 7, AM 03-02-05-SC)
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 7. Contents of petition. – A petition for the appointment
of a general guardian must allege the following:
(a) The jurisdictional facts;
(b) The name, age and residence of the prospective ward;
(c) The ground rendering the appointment necessary or
convenient;
(d) The death of the parents of the minor or the termination,
deprivation or suspension of their parental authority;
(e) The remarriage of the minor’s surviving parent;
(f) The names, ages, and residences of relatives within the 4th
civil degree of the minor, and of persons having him in their
care and custody;
(g) The probable value, character and location of the property
of the minor; and
(h) The name, age and residence of the person for whom
letters of guardianship are prayed.
The petition shall be verified and accompanied by a
certification against forum shopping. However, no defect in the
petition or verification shall render void the issuance of letters
of guardianship.
INCOMPETENTS (SECTION 2, RULE 93)
RULE 93. Section 2. Contents of petition. - A petition for the
appointment of a general guardian must show, so far as
known to the petitioner:
(a) The jurisdictional facts;
(b) The minority or incompetency rendering the appointment
necessary or convenient;
(c) The names, ages, and residences of the relatives of the
minor or incompetent, and of the persons having him in their
care;
(d) The probable value and character of his estate;
(e) The name of the person for whom letters of guardianship
are prayed.
The petition shall be verified; but no defect in the petition or
verification shall render void the issuance of letters of
guardianship.
Just go over that.
The petition must be verified with certification against non-
forum shopping but any defect in the certification or
verification shall not affect, shall not bind or void the issuance
of letter of guardianship.
Now the Special Rules introduced an innovation as a
requirement in guardianship proceeding for minors you have to
have a CASE STUDY REPORT.
CASE STUDY REPORT
MINORS (SECTION 9, AM 03-02-05-SC)
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 9. Case study report. – The court shall order a social
worker to conduct a case study of the minor and all the
prospective guardians and submit his report and
recommendation to the court for its guidance before the
scheduled hearing. The social worker may intervene on behalf
of the minor if he finds that the petition for guardianship
should be denied.
And because there is a need to have a case study report, there
is a need for a social worker to conduct the study and the
study would be about the minor as well as the prospective
guardians. The Social Worker is required submit his report and
recommendation to the court for its guidance before the
scheduled hearing. The social worker may intervene on behalf
of the minor if he finds that the petition for guardianship
should be denied.
INCOMPETENTS - NO SIMILAR PROVISIONS IN THE RULES
OF COURT
After the petition has been filed then the court may issue:
NOTICE OF HEARING
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 8. Time and notice of hearing. – When a petition for the
appointment of a general guardian is filed, the court shall fix a
time and place for its hearing, and shall cause reasonable
notice to be given to the persons mentioned in the petition,
including the minor if he is fourteen years of age or over, and
may direct other general or special notice to be given.cr
RULE 93. Section 3. Court to set time for hearing. Notice
thereof. - When a petition for the appointment of a general
guardian is filed, the court shall fix a time and place for
hearing the same, and shall cause reasonable notice thereof to
be given to the persons mentioned in the petition residing in
the province, including the minor if above 14 years of age or
the incompetent himself, and may direct other general or
special notice thereof to be given.
So lahat ng parties should be given notice.
HOW ABOUT CREDITORS ARE THEY ENTITLED TO NOTICE?
ALAGAYRI vs. MABALE: The SC said NO. Creditors are not
entitled to notice.
Now the NOTICE OF HEARING generally need not be
published, not subject to publication.
GR: No need to publish
Except if:
- Non-resident ward
- Estate in the Philippines
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
o In which case you need to resolve to
PUBLICATION OF THE NOTICE OF
HEARING.
So once the NOTICE OF HEARING has been served or is
published as the case may be then that will be now give an
opportunity for an OPPOSITION to be filed.
OPPOSITION TO PETITION
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 10. Opposition to petition. – Any interested person may
contest the petition by filing a written opposition based on
such grounds as the majority of the minor or the unsuitability
of the person for whom letters are prayed, and pray that the
petition be denied, or that letters of guardianship issue to
himself, or to any suitable person named in the opposition.
RULE 93. Section 4. Opposition to petition. - Any interested
person may, by filing a written opposition, contest the petition
on the ground of majority of the alleged minor, competency of
the alleged incompetent, or the unsuitability of the person for
whom letters are prayed, and may pray that the petition be
dismissed, or that letters of guardianship issue to himself, or to
any suitable person named in the opposition.
HOW DO YOU FILE AN OPPOSITION?
- In writing
- Allege the grounds for opposing the petition
o For minors - you can allege that the minor is
no longer a minor he has already attained
the age of majority
o For the incompetent – he is not incompetent
o The unsuitability of the person for whom
letters are prayed
So there are TWO (2) BASIC POINTS you can raise as a
ground for INCOMPETENCY:
1. The condition of the ward is not true like minority or
incompetency
2. As to the fitness of the person to be appointed as
guardian – so you in effect impliedly admit that there
indeed the existence of minority and incompetency
but only your opposition is on the motion to be
appointed as a guardian so in which case you are now
going to prove the unsuitability of the person
nominated to be a guardian.
Now, is there a specific person who will oppose the petition?
Any interested person can oppose
WHEN YOU OPPOSE WHAT ARE THE PRAYERS, WHAT ARE
THE RELIEFS THAT YOU ARE ASKING BEFORE THE COURT?
1. Denial of petition for the letters of guardianship to be
issued to the oppositor or to any person named in the
opposition.
HEARING
Now, during the hearing the court will determine the fact of
minority or incompetency of the ward and also who is most
qualified to be appointed as guardian if there are several of
them applying.
Determine:
- Minority
- Incompetency
During the hearing if the incompetent if able to attend must be
present as well as the minor.
What to prove? PROOF PRESENTED DURING THE HEARING:
- Required notice has been given – COMPLIANCE WITH
THE NOTICE REQUIREMENT ESPECIALLY IF THERE
IS THAT PUBLICATION REQUIREMENT
- Proof of respective allegations of the guardians
- Take note that the hearing can be closed to the public
if the proceedings there are held strictly confidential
and the records will not be released without court
approval.
As we have said earlier that if we are trying to alleged the
incomptency of the ward the PROOF REQUIRED. Quantum of
Proof required: Clear, positive, definite evidence.
*Ma’am showing the FLOW CHART on the slides
Now, the order or decision of the court granting the petition
will have to be furnished:
SERVICE OF JUDGMENT
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 13. Service of final and executory judgment or order . –
The final and executory judgment or order shall be served
upon the Local Civil Registrar of the municipality or city where
the minor resides and the Register of Deeds of the place where
his property or part thereof is situated shall annotate the same
in the corresponding title, and report to the court his
compliance within fifteen days from receipt of the order.
RULE 93. Section 8. Service of judgment. - Final orders or
judgments under this rule shall be served upon the civil
registrar of the municipality or city where the minor or
incompetent person resides or where his property or part
thereof is situated.
- Civil Registrar where the minor or incompetent
resides or where the property situated shall be served
together with the judgment
- In case of the minor the judgment shall also be
served on Register of Deeds where his property is
located for purposes of annotating on the title of the
properties
- Both the Local Civil Registrar and Register of Deeds
shall enter the final and executor judgment in the
appropriate books in their offices. (Record in the
book)
Now, once there is a decision appointing a guardian the
guardian will be required to post a bond.
BOND OF GURADIANS
RULE 94. Section 1. Bond to be given before issuance of
letters. Amount. Conditions. - Before a guardian appointed
enters upon the execution of his trust, or letters of
guardianship issue, he shall give a bond, in such sum as the
court directs, conditioned as follows:
(a) To make and return to the court, within three (3) months,
a true and complete inventory of all the estate, real and
personal, of his ward which shall come to his possession or
knowledge or to the possession or knowledge of any other
person for him;
(b) To faithfully execute the duties of his trust, to manage and
dispose of the estate according to these rules for the best
interests of the ward, and to provide for the proper care,
custody, and education of the ward;
(c) To render a true and just account of all the estate of the
ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the
same, at the time designated by these rules and such other
6
 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
times as the court directs; and at the expiration of his trust to
settle his accounts with the court and deliver and pay over all
the estate, effects, and moneys remaining in his hands, or due
from him on such settlement, to the person lawfully entitled
thereto;
(d) To perform all orders of the court by him to be performed.
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 15. Where to file the bond; action thereon. – The bond
posted by a guardian shall be filed in the Family Court and, In
case of breach of any of its conditions, the guardian may be
prosecuted in the same proceeding for the benefit of the ward
or of any other person legally interested in the property.
Whenever necessary, the court may require the guardian to
post a new bond and may discharge from further liability the
sureties on the old bond after due notice to interested persons,
if no injury may result therefrom to those interested in the
property.
POST A BOND before the letters of guardianship be issued in
his favor. The bond here will be depending on the amount
determined by the court and it will be posted as a requirement
for the issuance of letter of guardianship. Before the appointed
guardian will enter upon the execution of his requests.
FOR MINORS
- The bond will be filed in the Family Court
FOR INCOMPETENTS
- File it with the RTC
Any breach in the condition will be prosecuted in the same
proceedings provided for the ward or any other persons
interested over the property in so far as the minor wards are
concern.
BOND OF PARENTS AS LEGAL GUARDIANS:
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 16. Bond of parents as guardians of property of minor. –
If the market value of the property or the annual Income of
the child exceeds P50,000.00, the parent concerned shall
furnish a bond In such amount as the court may determine,
but in no case less than ten per centurn of the value of such
property or annual income, to guarantee the performance of
the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be flied in the
Family Court of the place where the child resides or, if the
child resides in a foreign country, in the Family Court of the
place where the property or any part thereof is situated.
The petition shall be docketed as a summary special
proceeding In which all incidents and issues regarding the
performance of the obligations of a general guardian shall be
heard and resolved.
I noticed in the report there is a conclusion that is presented in
the report, take note that the parents are already legal
guardians if the minor has property, the report says the
parents will have to apply for guardianship which is wrong.
PARENTS ARE ALREADY LEGAL GUARDIANS the law considers
them as such. No need for the appointment of parent as legal
guardian even if their minor children have properties.
EH ANO ITONG BOND OF PARENTS AS LEGAL GUARDIANS?
NOW, TAKE NOTE KAILAN BA MAGPOPOST NG BOND ANG
PARENTS?
Diba after the decision.
In ordinary cases like incompetents or minor, when do you
require the posting of the bond is it prior to the appointment of
the guardian or after?
Diba after pag may decision na, bago ma-issuehan ng letters
of guardianship si guardian post muna siya ng bond
But in the case of PARENTS you are already considered by law
as guardians, legal guardians of the minor children over the
person and property of the minor children. So ano yung a-
apply-an nila? Bakit sila magpopost ng bond?
This is what is provided by the Special Rules and this is
pursuant to Article 224-225 of the Family Code.
Family Code.
Art. 224. The measures referred to in the preceding article
may include the commitment of the child for not more than
thirty days in entities or institutions engaged in child care or in
children's homes duly accredited by the proper government
agency.
The parent exercising parental authority shall not interfere with
the care of the child whenever committed but shall provide for
his support. Upon proper petition or at its own instance, the
court may terminate the commitment of the child whenever
just and proper. (391a)
Art. 225. The father and the mother shall jointly exercise legal
guardianship over the property of the unemancipated common
child without the necessity of a court appointment. In case of
disagreement, the father's decision shall prevail, unless there is
a judicial order to the contrary.
Where the market value of the property or the annual
income of the child exceeds P50,000, the parent
concerned shall be required to furnish a bond in such amount
as the court may determine, but not less than ten per centum
(10%) of the value of the property or annual income, to
guarantee the performance of the obligations prescribed for
general guardians.
A verified petition for approval of the bond shall be filed in the
proper court of the place where the child resides, or, if the
child resides in a foreign country, in the proper court of the
place where the property or any part thereof is situated.
The petition shall be docketed as a summary special
proceeding in which all incidents and issues regarding the
performance of the obligations referred to in the second
paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory
except when the child is under substitute parental authority, or
the guardian is a stranger, or a parent has remarried, in which
case the ordinary rules on guardianship shall apply. (320a)
Only if the minor children earn an annual income exceeds
50,000 saka sila magpopost ng bond, but as being legal
guardians, they are already guardians no need to petition in
court to be appointed as guardians of the children, the law
already considers them as such.
Magpopost lang ng bond, the law requires them to post a bond
where the market value of the property or the annual income
of the child exceeds P50,000. So may income yung bata more
than 50,000 divide by twelve, how much ang income kada
bata? (4,166 per month)
So if the child earn 4,500 a month required ka na magpost ng
bond as a legal guardian of the child.
Or walang income yung anak but may property siya, the
market value of which exceeds 50,000, then you are required
as legal guardian to post a bond.
7
 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
HOW MUCH ID THE BOND THAT YOU ARE REQUIRED TO
POST?
Not less than 10% of the value of such property or income
So for example 60,000, the 10% of that is 6,000, you go to
court and post that bond, because that is what the law
requires for you to post a bond as legal guardian but that
would be applied if the children has property the value of
which exceeds 50,000 or an income exceeds 50,000 in a year.
WHY DO THE PARENTS HAVE TO POST THIS BOND?
To guaranty the performance for general guardians
So there is no need for parents to apply for guardianship, if
their children earn income exceeds 50,000 a year or properties
worth more than 50,000 because they are already considered
by the law as legal guardians.
What they need to do is to file a:
- Verified Petition for approval of the guardianship bond
- Go to the Family Court where the child resides
- In case of non-resident where the property is situated
they will file there the petition for approval of the
bond
- The petition will be Summary in nature
- Section 16, AM 03-02-05-SC
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 16. Bond of parents as guardians of property of minor. –
If the market value of the property or the annual Income of
the child exceeds P50,000.00, the parent concerned shall
furnish a bond In such amount as the court may determine,
but in no case less than ten per centurn of the value of such
property or annual income, to guarantee the performance of
the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be flied in the
Family Court of the place where the child resides or, if the
child resides in a foreign country, in the Family Court of the
place where the property or any part thereof is situated.cralaw
The petition shall be docketed as a summary special
proceeding In which all incidents and issues regarding the
performance of the obligations of a general guardian shall be
heard and resolved.
So it is only for the purpose of posting a bond, nothing to do
as the appointment of the parents as guardians. That would be
a superfluity, the law already considers them as legal
guardians. The substantial basis is Article 225 of the Family
Code.
VERY CLEAR DO NOT CONFUSE.
- The filing of the bond (bond ng guardian)
- as against
- appointment of guardianship of parents
(application for guardianship)
- The parents are already legal guardians, parents sila
lang yung natatanging nag o-occupy ng ganyang
klaseng classification, as legal guardians without any
court appointment. No need to go to court. But in so
far as filing a bond when the children earn income
exceeding 50,000 a year or market value of the
property exceeds 50,000 then that is the time they
court not for appointment as guardians but for
approval of the bond which they are required to post
under Article 225 of the FC.
- Only for approval of the bond not for appointment of
guardianship
After the guardians posted the bond they will be issued
LETTERS OF GUARDIANSHIP.
BONDS OF GURADIANS, CONDITIONS
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 14. Bond of guardian; amount; conditions. - Before he
enters upon the execution of his trust, or letters of
guardianship issue, an appointed guardian may be required to
post a bond in such sum as the court shall determine and
conditioned as follows:
(a) To make and return to the court, within three months
after the issuance of his letters of guardianship, a true and
complete Inventory of all the property, real and personal, of
his ward which shall come to his possession or knowledge or
to the possession or knowledge of any other person in his
behalf;
(b) To faithfully execute the duties of his trust, to manage
and dispose of the property according to this rule for the best
interests of the ward, and to provide for his proper care,
custody and education;
(c) To render a true and Just account of all the property of
the ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the
same, at the time designated by this rule and such other times
as the court directs; and at the expiration of his trust, to settle
his accounts with the court and deliver and pay over all the
property, effects, and monies remaining in his hands, or due
from him on such settlement, to the person lawfully entitled
thereto; and
(d) To perform all orders of the court and such other duties
as may be required by law.
RULE 94. Section 1. Bond to be given before issuance of
letters. Amount. Conditions. - Before a guardian appointed
enters upon the execution of his trust, or letters of
guardianship issue, he shall give a bond, in such sum as the
court directs, conditioned as follows:
(a) To make and return to the court, within three (3) months,
a true and complete inventory of all the estate, real and
personal, of his ward which shall come to his possession or
knowledge or to the possession or knowledge of any other
person for him;
(b) To faithfully execute the duties of his trust, to manage and
dispose of the estate according to these rules for the best
interests of the ward, and to provide for the proper care,
custody, and education of the ward;
(c) To render a true and just account of all the estate of the
ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the
same, at the time designated by these rules and such other
times as the court directs; and at the expiration of his trust to
settle his accounts with the court and deliver and pay over all
the estate, effects, and moneys remaining in his hands, or due
from him on such settlement, to the person lawfully entitled
thereto;
(d) To perform all orders of the court by him to be performed.
- So actually here the conditions are similar to the
conditions of the bond of administrators in settlement
proceedings.
- You need to submit return and inventory of the
estate.
- You have to execute the trust
- To render accounting
- Perform all orders of the court
8
 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

- The court may in its discretion require the posting of

a new bond or additional bond RULE 95 ART. 124 OF THE FAMILY
CODE
WHERE TO FILE THE BOND?
GUARDIANSHIP PROCEEDING NOT APPLICABLE:
Office of the Clerk of Court (IN THE COURT THAT APPOINTED
THE GUARDIAN) - IF MARRIED SPOUSE
IS INCOMPETENT OR
SALE AND ENCUMBRANCE OF ESTATE INCAPACITATED-
which is why he is
Rule 95
incapable of giving his
Recall that in the settlement of estate you also have a special consent
rule on sale and encumbrance of properties of the estate and I APPLICABLE:
think if I am not mistaken Rule 87 or 89.
- ONLY IF ABSENT,
So if you intend to sell the property of the ward you cannot do SEPARATED IN FACT,
that even if you are the guardian without a court authority. REFUSES TO GIVE
CONSENT
You have to file in court a Petition for Leave to Sell or
encumber Estate So far as the desire to sell real property as administrator of
Grounds: conjugal property you have to observe the procedure of the
sale of the estate requiring judicial guardian under Rule 95.
RULE 95. Section 1. Petition of guardian for leave to sell or Because what is provided under Article 124 for the sale,
encumber estate. - When the income of an estate under authority to sell the property of an absentee spouse because
guardianship is insufficient to maintain the ward and his family, he refuses or does not give his consent it is summary in
or to maintain and educate the ward when a minor, or when it nature.
appears that it is for the benefit of the ward that his real
estate or some part thereof be sold, or mortgaged or But in this case since the reason for the lack of consent is the
otherwise encumbered, and the proceeds thereof put out at incapacity or incompetency of the spouse, then you have
interest, or invested in some productive security, or in the to resort to a guardianship proceeding and you have to follow
improvement or security of other real estate of the ward, the the procedure in Rule 95 of the Rules of Court.
guardian may present a verified petition to the court by which Take note also that there is a difference in authority granted
he was appointed setting forth such facts, and praying that an by the court for the sale and encumbrance of the property of
order issue authorizing the sale or encumbrance. the ward.

[GI APIL RA NKO NI NA SPECIAL RULES] - If it is an INCOMPETENT

o then you only need to acquire for petition for
SPECIAL RULES AM 03-02-05-SC (MINORS) authority to sell or encumber real properties
of the ward
Sec. 19. Petition to sell or encumber property. - When the
income of a property under guardianship is insufficient to o If it is a personal property, like a motor
maintain and educate the ward, or when it is for his benefit vehicle the guardian is clothed with power to
that his personal or real property or any part thereof be sold, sell personal property of the ward
mortgaged or otherwise encumbered, and the proceeds
invested in safe and productive security, or in the improvement - But if it is a MINOR ward even if it is a personal
or security of other real property, the guardian may file a property you have to petition for authority to sell.
verified petition setting forth such facts, and praying that an
order issue authorizing the sale or encumbrance of the INCOMPETENTS MINORS
property.
REAL PERSONAL REAL PERSONAL
SITUATION:
NEED TO IMPLIED NEED TO NEED TO
In a case of INCOMPETENT/ INCAPACITATED MARRIED PETITION FOR AUTHORITY PETITION FOR PETITION FOR
PERSON and the remaining competent spouse would require to AUTHORITY FOR THE AUTHORITY AUTHORITY
sell the property, DO YOU APPLY ARTICLE 124 OF THE FC OR TO SELL OR GUARDIAN TO TO SELL OR TO SELL OR
DO YOU APPLY THE SPECIAL RULES, RULE 95 FOR ENCUMBER IN SELL OR ENCUMBER IN ENCUMBER IN
INCOMPETENTS? COURT ENCUMBER COURT COURT
THE
UY vs. JARDELEZA: INCOMPETENT/ INCAPACITATED PROPERTIES
MARRIED PERSON OF THE SPOUSE OF THE WARD

ART. 124 OF THE FAMILY CODE:

REQUIREMENTS
NOT APPLY –
- VERIFIED PETITION OR MOTION;
IF MARRIED SPOUSE IS INCOMPETENT OR INCAPACITATED-
- NOTICE TO BE GIVEN TO THE NEXT OF KIN; and
which is why he is incapable of giving his consent
- HEARING TO SHOW CAUSE WHY PETITION SHOULD
APPLIES –
NOT BE GRANTED
ONLY IF ABSENT, SEPARATED IN FACT, REFUSES TO GIVE
NOTICE
CONSENT to the transaction.
THE NOTICE OF HEARING WILL ORDER THE NEXT OF KIN TO
In this case of the spouse is incapable of giving consent by
SHOW CAUSE WHY PETITION SHOULD NOT BE GRANTED
reason of his incapacity or incompetency then you need to
apply for guardianship. So the spouse will have to go to court CONTENTS
and petition for the appointment as guardian over the person
or estate of the incompetent. RULE 95. Section 4. Contents of order for sale or

9
 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
encumbrance, and how long effective. Bond. - If, after full
examination, it appears that it is necessary, or would be
beneficial to the ward, to sell or encumber the estate, or some
portion of it, the court shall order such sale or encumbrance
and that the proceeds thereof be expended for the
maintenance of the ward and his family, or the education of
the ward, if a minor, or for the putting of the same out at
interest, or the investment of the same as the circumstances
may require. The order shall specify the causes why the sale or
encumbrance is necessary or beneficial, and may direct that
estate ordered sold be disposed of at either public or private
sale, subject to such conditions as to the time and manner of
payment, and security where a part of the payment is
deferred, as in the discretion of the court are deemed most
beneficial to the ward. The original bond of the guardian shall
stand as security for the proper appropriation of the proceeds
of the sale, but the judge may, if deemed expedient, require
an additional bond as a condition for the granting of the order
of sale. No order of sale granted in pursuance of this section
shall continue in force more than one (1) year after granting
the same, without a sale being had.
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 22. Contents of order for sale or encumbrance and its
duration; bond. – If, after full examination, it is necessary, or
would be beneficial to the ward, to sell or encumber the
property, or some portion of it, the court shall order such sale
or encumbrance the proceeds of which shall be expended for
the maintenance or the education of the ward, or invested as
the circumstances may require. The order shall specify the
grounds for the sale or encumbrance and may direct that the
property ordered sold be disposed of at public sale, subject to
such conditions as to the time and manner of payment, and
security where a part of the payment is deferred. The original
bond of the guardian shall stand as security for the proper
appropriation of the proceeds of the sale or encumbrance, but
the court may, if deemed expedient, require an additional
bond as a condition for the sale or encumbrance. The authority
to sell or encumber shall not extend beyond one year, unless
renewed by the court.
Who is this NEXT OF KIN?
- Is someone who has a successional right over the
estate of the ward
- siya yung may interest over the property, siya yung
may interest over the estate ng ward
- so that what the law considers as the next of kin.
STORY
*She handled a guardianship proceeding the parents applied for the
guardianship over their comatose son, cardiovascular attack
somewhere abroad, the son has a real property. They wife was the
one who retrieve the body and took care of the husband, the wife was
the secretary of Ma’am T. The property was named to the husband
the issuance was during the existing of the marriage. Opposition to
guardianship. Nagkaubusan na ng pera so the wife filed a petition in
court for authority to sell the property and notify all including the
parents. The parents oppose to the petition to authority to sell.
Eventually it was granted. Humirit pa for public auction, but no
provisions that it has to be in public auction. To cut the long story
short namatay pa rin yung husband niya pero wala siyang guilt feeling
because she did everything she could. So ganyan ang nagyayari sa
guardianship proceeding. The quarrel is not who will take care of the
ward but as to who will keep the property. Diyan mo makikita ang
drama ng pamilya.
Take note that in the case of UY v JURDALEZA: The SC said
that even if you apply Article 124 of the FC of the summary
proceeding for the authority to sell the property, the SC said
that that will not suffice you should still comply to the
requirements of Rule 95.
So even if applicable, it is a hypothetical argument released by
the SC, even if Article 124 of the FC applies in a situation
where the spouse is incapacitated or incompetent still the
other spouse in order to validly sell, dispose or encumber the
property, must follow the procedure under Rule 95.
Meaning petition ka pa rin ang i-no-notify mo ang next of kin
and there will be hearing for the court to determine the
propriety of the issuance of such authority.
* Ma’am showing the flow chart
Take note the sale of property here is either private or
public.
If the court orders the sale or encumbrance of the property,
the order should state the reason for such authority and the
causes why the sale is necessary and would prescribe whether
the sale would be for public or private sale and any condition
that the court may attach to it or when the proceeds of the
sale is had the court can actually also impose conditions the
court can also require additional bond.
The authority to sell here is only valid for one year but
renewable.
SHOW CAUSE ORDER
RULE 95. Section 2. Order to show cause thereupon. - If it
seems probable that such sale or encumbrance is necessary, or
would be beneficial to the ward, the court shall make an order
directing the next of kin of the ward, and all persons interested
in the estate, to appear at a reasonable time and place therein
specified to show cause why the prayer of the petition should
not be granted.
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 20. Order to show cause. – If the sale or encumbrance is
necessary or would be beneficial to the ward, the court shall
order his next of kin and all person/s interested in the property
to appear at a reasonable time and place therein specified and
show cause why the petition should not be granted.
ORDER OF SALE OR ENCUMBRANCE
When we say conditions to the sale, the court can actually opt
to provide that the proceeds of the sale be invested, that is
one of the discretions of the court. This is both found in the
Rules of Court and the Special Rules.
INVESTMENT OF PROCEEDS
RULE 95. Section 5. Court may order investment of proceeds
and direct management of estate. - The court may authorize
and require the guardian to invest the proceeds of sales or
encumbrances, and any other of his ward's money in his
hands, in real estate or otherwise, as shall be for the best
interest of all concerned, and may make such other orders for
the management, investment, and disposition of the estate
and effects, as circumstances may require.
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 23. Court may order investment of proceeds and direct
management of property. – The court may authorize and
require the guardian to invest the proceeds of sales or
encumbrances, and any other money of his ward in his hands,
in real or personal property, for the best interests of the ward,
and may make such other orders for the management,
investment, and disposition of the property and effects, as
circumstances may warrant.
WHAT HAPPENS TO THE SALE WITHOUT COURT AUTHORITY?
LINDAIN vs CA: Sale is void if without authority
POWERS OR GUARDIANS
RULE 96. Section 1. To what guardianship shall extend. - A
guardian appointed shall have the care and custody of the
10
 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
person of his ward, and the management of his estate, or the
management of the estate only, as the case may be. The
guardian of the estate of a nonresident shall have the
management of all the estate of the ward within the
Philippines, and no court other than that in which such
guardian was appointed shall have jurisdiction over the
guardianship.
The main function of the guardian would be to take care, to
have the care and custody of the person of his ward, and the
management of his estate, if the ward has the estate obviously
the guardian is only to manage the estate of the ward.
So if the letters of guardianship allows the guardian to have
custody over the person and property of the incompetent with
full authority to take possession of the property that already
implies the power of the guardian to take possession of the
property, meaning if the possession is withheld unlawfully from
the ward he can file an action for unlawful detainer or forcible
entry. That is an implied power of the guardian.
CANIZA vs CA:
- Possession is withheld
- File an unlawful detainer or forcible entry
So the guardians have the duty:
- To care for ward’s person
- To make sure that the physical and spiritual needs
are met
- To have the custody of the person of the ward
- To have possessions of the properties of the ward
DUTIES OF GUARDIANS
If the wards have debts
- to pay off the debts
- settle all accounts of the ward
- manage the estate frugally and without a waste
- join in partition of real or personal estate held by the
ward jointly or common with others
- part of the duties would be conditions of the bond -
submit verified inventory within 3 months from
appointment
- the submission of the list of properties that were
discovered after the appointment
- rendition of accounting
RULE 96.
SECTION 2. Guardian to pay debts of ward. - Every guardian
must pay the ward's just debts out of his personal estate and
the income of his real estate, if sufficient; if not, then out of
his real estate upon obtaining an order for the sale or
encumbrance thereof.
SECTION 3. Guardian to settle accounts, collect debts, and
appear in actions for ward. - A guardian must settle all
accounts of his ward, and demand, sue for, and receive all
debts due him, or may, with the approval of the court,
compound for the same and give discharges to the debtor, on
receiving a fair and just dividend of the estate and effects; and
he shall appear for and represent his ward in all actions and
special proceedings, unless another person be appointed for
that purpose.
SECTION 4. Estate to be managed frugally, and proceeds
applied to maintenance of ward. - A guardian must manage
the estate of his ward frugally and without waste, and apply
the income and profits thereof, so far as may be necessary, to
the comfortable and suitable maintenance of the ward and his
family, if there be any; and if such income and profits be
insufficient for that purpose, the guardian may sell or
encumber the real estate, upon being authorized by order so
to do, and apply so much of the proceeds as may be necessary
to such maintenance.
SECTION 5. Guardian may be authorized to join in partition
proceedings after hearing. - The court may authorize the
guardian to join in an assent to a partition of real or personal
estate held by the ward jointly or in common with others, but
such authority shall only be granted after hearing, upon such
notice to relatives of the ward as the court may direct, and a
careful investigation as to the necessity and propriety of the
proposed action.
SECTION 6. Proceedings when person suspected of
embezzling or concealing property of ward. - Upon complaint
of the guardian or ward, or of any person having actual or
prospective interest in the estate of the ward as creditor, heir,
or otherwise, that anyone is suspected of having embezzled,
concealed, or conveyed away any money, goods, or interest,
or a written instrument, belonging to the ward or his estate,
the court may cite the suspected person to appear for
examination touching such money, goods, interest, or
instrument, and make such orders as will secure the estate
against such embezzlement, concealment or conveyance.
SECTION 7. Inventories and accounts of guardians, and
appraisement of estates. - A guardian must render to the court
an inventory of the estate of his ward within three (3) months
after his appointment, and annually after such appointment an
inventory and account, the rendition of any of which may be
compelled upon the application of an interested person. Such
inventories and accounts shall be sworn to by the guardian. All
the estate of the ward described in the first inventory shall be
appraised. In the appraisement the court may request the
assistance of one or more of the inheritance tax appraisers.
And whenever any property of the ward not included in an
inventory already rendered is discovered, or succeeded to, or
acquired by the ward, like proceedings shall be had for
securing an inventory and appraisement thereof within three
(3) months after such discovery, succession, or acquisition.
SECTION 8. When guardian's accounts presented for
settlement. Expenses and compensation allowed. - Upon the
expiration of a year from the time of his appointment, and as
often thereafter as may be required, a guardian must present
his account to the court for settlement and allowance. In the
settlement of the account, the guardian, other than a parent,
shall be allowed the amount of his reasonable expenses
incurred in the execution of his trust and also such
compensation for his services as the court deems just, not
exceeding fifteen per centum of the net income of the ward.
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 17. General duties of guardian. – A guardian shall have
the care and custody of the person of his ward and the
management of his property, or only the management of his
property. The guardian of the property of a nonresident minor
shall have the management of all his property within the
Philippines.
A guardian shall perform the following duties:
(a) To pay the just debts of the ward out of the personal
property and the income of the real property of the ward, If
the same is sufficient; otherwise, out of the real property of
the ward upon obtaining an order for its sale or encumbrance;
(b) To settle all accounts of his ward, and demand, sue for,
receive all debts due him, or may, with the approval of the
court, compound for the same and give discharges to the
debtor on receiving a fair and just dividend of the property and
effects; and to appear for and represent the ward in all actions
and special proceedings, unless another person is appointed
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
for that purpose;
(c) To manage the property of the ward frugally and without
waste, and apply the income and profits thereon, insofar as
may be necessary, to the comfortable and suitable
maintenance of the ward; and if such income and profits be
insufficient for that purpose, to sell or encumber the real or
personal property, upon being authorized by the court to do
so;
(d) To consent to a partition of real or personal property
owned by the ward jointly or in common with others upon
authority granted by the court after hearing, notice to relatives
of the ward, and a careful investigation as to the necessity and
propriety of the proposed action;
(e) To submit to the court a verified inventory of the property
of his ward within three months after his appointment, and
annually thereafter, the rendition of which may be required
upon the application of an interested person;
(f) To report to the court any property of the ward not
included in the inventory which is discovered, or succeeded to,
or acquired by the ward within three months after such
discovery, succession, or acquisition; and cralaw
(g) To render to the court for its approval an accounting of the
property one year from his appointment, and every year
thereafter or as often as may be required.cralaw
So the guardianship court, like a settlement court also
exercises limited jurisdiction, nevertheless it has certain power.
POWERS OF GUARDIANSHIP COURT
SPECIAL RULES AM 03-02-05-SC (MINORS)
Sec. 18. Power and duty of the court – The court may:
(a) Request the assistance of one or more commissioners in
the appraisal of the property of the ward reported in the initial
and subsequent inventories;
(b) Authorize reimbursement to the guardian, other than a
parent, of reasonable expenses incurred in the execution of his
trust, and allow payment of compensation for his services as
the court may deem just, not exceeding ten per centum of the
net income of the ward, if any; otherwise, in such amount the
court determines to be a reasonable compensation for his
services; and
(c) Upon complaint of the guardian or ward, or of any person
having actual or prospective interest in the property at the
ward, require any person suspected of having embezzled,
concealed, or disposed of any money, goods or interest, or a
written instrument belonging to the ward or his property to
appear for examination concerning any thereof and issue such
orders as would secure the property against such
embezzlement, concealment or conveyance.
- request assistance by commissioner in the appraisal
of the estate
- it can allow the reimbursement or reasonable
expenses incurred by the guardian in the execution of
his trust as well as payment of compensation for
services not exceeding 10% of the ward’s income
- the guardianship court can also require any person
suspected of having embezzled, concealed, or
disposed of any money, goods or interest, or a
written instrument belonging to the ward or his
property to appear for examination – this is the same
as the examination powers of the settlement court
TERMINATION OF GUARDIANSHIP
RULE 97.
SECTION 1. Petition that competency of ward be adjudged,
and proceedings thereupon. - A person who has been declared
incompetent for any reason, or his guardian, relative, or friend,
may petition the court to have his present competency
judicially determined. The petition shall be verified by oath,
and shall state that such person is then competent. Upon
receiving the petition, the court shall fix a time for hearing the
questions raised thereby, and cause reasonable notice thereof
to be given to the guardian of the person so declared
incompetent, and to the ward. On the trial, the guardian or
relatives of the ward, and, in the discretion of the court, any
other person, may contest the right to the relief demanded,
and witnesses may be called and examined by the parties or
by the court on its own motion. If it be found that the person
is no longer incompetent, his competency shall be adjudged
and the guardianship shall cease.
SECTION 2. When guardian removed or allowed to resign.
New appointment. - When a guardian becomes insane or
otherwise incapable of discharging his trust or unsuitable
therefor, or has wasted or mismanaged the estate, or failed for
thirty (30) days after it is due to render an account or make a
return, the court may, upon reasonable notice to the guardian,
remove him, and compel him to surrender the estate of the
ward to the person found to be lawfully entitled thereto. A
guardian may resign when it appears proper to allow the
same; and upon his resignation or removal the court may
appoint another in his place.
SECTION 3. Other termination of guardianship. - The
marriage or voluntary emancipation of a minor ward
terminates the guardianship of the person of the ward, and
shall enable the minor to administer his property as though he
were of age, but he cannot borrow money or alienate or
encumber real property without the consent of his father or
mother, or guardian. He can sue and be sued in court only
with the assistance of his father, mother or guardian. The
guardian of any person may be discharged by the court when
it appears, upon the application of the ward or otherwise, that
the guardianship is no longer necessary.
SECTION 4. Record to be kept by the justice of the peace or
municipal judge. - When a justice of the peace or municipal
court takes cognizance of the proceedings in pursuance of the
provisions of these rules, the record of the proceedings shall
be kept as in the court of first instance.
SECTION 5. Service of judgment. - Final orders or judgments
under this rule shall be served upon the civil registrar of the
municipality or city where the minor or incompetent person
resides or where his property or part thereof is situated.
THERE ARE TWO (2) KINDS OF TERMINATION OF THE
GUARDIAN
1. VOLUNTARY
o Resignation
o When the incompetent ward becomes
competent upon the instance or upon the
petition of the guardian
o Or upon the minor has attained the age of
majority and the guardian has notified the
court of such fact
o The ward has died and the guardian is the
one who notified also, it is voluntary on the
part of the guardian to inform the court on
the happening of this events – then you
consider them as voluntary termination
2. INVOLUNTARY
o Grounds for the termination is independent
of the will of the guardian
What are those?
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

 When the guardian himself

becomes insane
 Incapacitated to discharge the trust
 Becomes Unsuitable
 Guilty of mismanagement
 Failed to render an accounting after
it is due
 When the ward becomes
incompetent or has attained the
age of majority upon verified
petition other than the guardian
- In this case the involuntary termination must be
through a petition submitted in court and the
guardian himself will be notified of such petition
- Take note in involuntary termination of guardianship
cannot be absolve of his trust or his liability unless he
has render the proper accounting to the court and the
court has approve such accounting.
Other Grounds for TERMINATION
- Under the SPECIAL RULES
o the death of the ward
o the attainment of the age of majority of the
ward upon petition by any other person
o when there is conflict of interest

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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
ADOPTION
Adoption is also covered now by special set of rules
promulgated by the SC under AM 02-06-02-SC that took
effect on August 22, 2002.
Under these Rules we have TWO TYPES OF ADOPTION
promulgated:
1. DOMESTIC ADOPTION
o Covered by SECTION 1-25 of the Special
Rules
2. INTERCOUNTRY ADOPTION
DOMESTIC ADOPTION
CONCEPT OF ADOPTION
- The process of making a child, whether related or not
to the adopter, possess in general the right accorded
to a legitimate child.
- It is a juridical act, a proceeding in rem which creates
between two persons a relationship similar to that
which results from legitimate paternity and filiation.
WHAT ARE THE KEY WORDS HERE?
1. CREATION OR RELATIONSHIP of PATERNITY AND
FILIATION; and
2. The other important key word is LEGITIMATE
So it is not just a creation of any relationship of the child and
the parent but a LEGITIMATE RELATIONSHIP.
IN RE: ADOPTION OF STEPHANIE ASTORGA
- The SC said that the modern trend is to consider
adoption not merely as an act to establish a
relationship of paternity and filiation but also as an
act which endows the child with a legitimate status.
- The SC cited the UN Convention of the Rights of the
Child as well as RA 8552 and all of these BEST
INTEREST OF THE ADOPTED CHILD.
The Special Rules would enumerate under Section 5
WHO MAY BE ADOPTED?
- SECTION 5, AM 02-06-02-SC
SPECIAL RULES (AM 02-06-02-SC)
Section 5. Who may be adopted – the following may be
adopted:
(1) Any person below eighteen (18) years of age who has
been voluntarily committed to the Department under Articles
154, 155 and 156 of P.D. No. 603 or judicially declared
available for adoption;
(2) The legitimate child of one spouse, by the other spouse;
(3) An illegitimate child, by a qualified adopter to raise the
status of the former to that of legitimacy;
(4) A person of legal age regardless of civil status, if, prior to
the adoption, said person has been consistently considered
and treated by the adopters as their own child since minority;
(5) A child whose adoption has been previously rescinded; or
(6) A child whose biological or adoptive parents have died:
Provided, that no proceedings shall be initiated within six (6)
months from the time of death of said parents.
(7) A child not otherwise disqualified by law or these rules.
Take note that a parent can adopt his own child. When? When
the child is the illegitimate child of that parent.
That is why ang sinasabi ng atong Korte Suprema in the case
of ASTORGA adoption is not merely to establish a relationship
of paternity and filiation it is also to raise the status of the child
to that of a legitimate child.
So the only reason why a parent would adopt his own child,
his own illegitimate child, is to raise the status of the child
from illegitimate to illegitimate, kaya allowed yan kahit pa
meron na silang paternity and filiation relationship.
Person or legal age – kahit hindi ka minor pwede kang i-adopt.
Regardless of civil status, if, prior to the adoption, said person
has been consistently considered and treated by the adopters
as their own child since minority. You grew up under the care
and custody even if you already attained the age of majority,
you are no longer a child you can still be adopted under this
particular scenario.
STORY
*That was what happened in the case in court where --- story ni
ma’am --- usisera lang kami, we are not party to the case, we
are just waiting for our case to be called --- while waiting ---
here comes a case for correction of entries in the birth record of
a certain guy ---petitioner is on the witness stand and underwent
direct examination --- while testifying saka lang niya na
intindihan what the petition was all about he wanted to change
the name of the mother in his birth record to that of the person
other than his mother, ang reason niya, yung gusto niya i-
declare na nanay yun yung nag-alaga sa kanya since he was a
child yun ang kinilala niyang nanay. Lahat kami nagtinginan,
prosecutors and fellow lawyers --- pwede ba yun? Can you really
change thename of your mom to a person other than your mom
through a petition for correction of entry in the birth record? ---
lahat kami nagsitaasan ang kilay --- the judge notice as talking
(Sabi niya, I just took over this case, I did not file this case ) the
SG opposed --- the previous judged who retired denied the
opposition pianatuloy ang kaso --- case of gross ignorance of the
law of the retired judge.
Amicus curae mode --- ATTY. T. --- I said judge the petition is
wrong, it should be adoption if he really wanted to change the
name of his birth mother it should be through a petition for
adoption, not a correction, there is nothing to correct, siya lang
naman yung nanay na nagluwal sa kanya sa mundong ito, why
change? there is no error there. THE ONLY RECOURSE WOULD
BE ADOPTION . Sabi na ang tanda-tanda na niya he is already
48 years old --- but that is an exception to the rule judge --- if
you have been considered as the child of the adopter during
minority age then you can still be adopted even if you are
already of age. --- can we amend the petition? --- they were
trying to remedy the situation because it was apparently
defective --- so lucky na nagtuturo ako sa subject na ito, I was
able to give the right answer. --- Kahit yung judge hindi niya
alam, so nag recitation kami in court, buti na lang nakasagot ako
ng tama.
These are basic things that you should know, these are basic
concepts that you should be aware of, kahit na hindi mo kaso
yan, kahit nag o-observe ka lang sa korte pwede kang tawagin
anytime as amicus curae of the court or friend of the court to
enlighten the court on certain questions that were not really so
difficult kulang lang sa updating.
DEFINITIONS
SECTION 3, AM 02-06-02-SC
CHILD – is a person below eighteen (18) years of age at the
time of the filing of the petition for adoption.
Kahit pa above 18 ka na pagnahulog ka doon sa circumstance
that you have been treated as the child of the adopter since
your minority you can still be adoptd even if you are no longer
a child.
CHILD LEGALLY AVAILABLE FOR ADOPTION – refers to a
child who has been voluntarily or involuntarily committed to
the Department or to a duly licensed and accredited child-
placing agency, freed of the parental authority of his biological
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
parents, or in case of rescission of adoption, his guardian or
adopter(s).
Take note that a legally available for adoption child is someone
in the custody of the DSWD either voluntary or involuntary and
must have been freed of parental authority. Dapat wala nang
parental authority. Either DSWD, accredited child-placing or
child-caring agency.
VOLUNTARILY COMMITTED CHILD- is one whose parents
knowingly and willingly relinquish parental authority over him
in favour of the Department.
The parents voluntarily committed their child to DSWD, sila
mismo nag sign ng document that would place the child in the
care and custody of the DSWD.
INVOLUNTARILY COMMITTED CHILD – is one whose
parents, known or unknown, have been permanently and
judicially deprived of parental authority over him due to
abandonment; substantial, continuous or repeated neglect and
abuse; or incompetence to discharge parental responsibilities.
When a child is endorsed to the DSWD without participation of
the parents because whose parents, known or unknown, have
been permanently and judicially deprived of parental authority
over him due to abandonment; substantial, continuous or
repeated neglect and abuse; or incompetence to discharge
parental responsibilities.
FOUNDLING- refers to deserted or abandoned infant or child
whose parents, guardians or relatives are unknown; or a child
committed to an orphanage or charitable or similar institution
with unknown facts of birth and parentage and registered in
the Civil Register as a “foundling.”
Concept of foundlings, like we have now in the person of
GRACE POE, the foundlings are put in the limelight because of
GRACE POE. Although the issue is not so much on the welfare
of the foundling but on the issue of citizenship of the
foundlings. READ the SEPARATE OPINION of JUSTICE SERENO
because she delve more on foundlings in her opinion
Foundling refers to deserted or abandoned infant or child
whose parents, guardians or relatives are unknown; or a child
committed to an orphanage or charitable or similar institution
with unknown facts of birth and parentage and registered in
the Civil Register as a “foundling.”
ABANDONED CHILD – without proper parental care or
guardianship or whose parents have deserted him for a period
of at least six (6) months and, known or unknown, have been
permanently and judicially deprived of parental authority over
him due to abandonment, substantial, continuous or repeated
neglect and abuse; or incompetence to discharge parental
responsibilities .
So here you have reckoning period of six (6) months to
considered as child as abandoned. SIX (6) MONTHS from the
time the parents have deserted the child then you consider the
child as abandoned child.
Or even before that but there is permanently and judicially
deprivation of parental authority due to a finding of
abandonment, substantial, continuous or repeated neglect and
abuse; or incompetence to discharge parental responsibilities
DEPENDENT CHILD – refers to one who is without a parent,
guardian, or custodian or one whose parents, guardian or
other custodian for good cause desires to be relieved of his
care and custody and is dependent upon the public for
support.
So marami kayong makikitang dependent child sa daan,
STREET CHILDREN.
NEGLECTED CHILD – refers is one whose basic needs have
been deliberately not attended to or inadequately attended to,
physically or emotionally, by his parents or guardian.
A neglected child is someone under the custody of his parents
only is that his physical or emotional needs are inadequately
met.
WHO MAY BE DOPTED?
SECTION 4, AM 02-06-02-SC
SPECIAL RULES (AM 02-06-02-SC)
Section 4. Who may adopt. – the following may adopt:
(1) Any Filipino Citizen of legal age, in possession of full
civil capacity, of good moral character, has not been
convicted of any crime involving moral turpitude; who
is emotionally and psychologically capable of caring
for children, at least sixteen (16) years older than the
adoptee, and who is in a position to support and care
for his children in keeping with the means of the
family. The requirement of a 16-year difference
between the age of the adopter and the adoptee may
be waived when the adopted is the biological parent
of the adoptee or is the spouse of the adoptee’s
parent;
(2) Any alien possessing the same qualifications as
above-stated for Filipino nationals: Provided, that his
country has diplomatic relations with the Republic of
the Philippines, hat he has been living in the
Philippines for at least three (3) continuous years
prior to the filing of the petition for adoption and
maintains such residence until the adoption decree is
entered, that he has been certified by his diplomatic
or consular office or any appropriate government
agency to have the legal capacity to adopt in his
country, and that his government allows the adoptee
to enter his country as his adopted child. Provided,
further, that the requirements on residency and
certification of the alien’s qualifications to adopt in his
country may be waived for the following:
(i) A former Filipino Citizen who seeks to adopt
a relative within fourth (4th) degree of
consanguinity or affinity; or
(ii) On who seeks to adopt the legitimate child
of his Filipino spouse; or
(iii) One who is married to a Filipino citizen and
seeks to adopt jointly with his spouse a
relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino
spouse.
(3) The guardian with respect to the ward after the
termination of the guardianship and clearance of his
financial accountabilities.
Husband and wife shall jointly adopt, except in the
following cases:
(i) If one spouse seeks to adopt the legitimate
child of one spouse by the other spouse; or
(ii) If one spouse seeks to adopt his own
illegitimate child; Provided, however, that
the other spouse has signified his consent
thereto; or
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
(iii) If the spouse are legally separated from
each other.
In case husband and wife jointly adopt or one spouse adopts
the illegitimate child of the other, joint parental authority shall
be exercised by the spouses.
Filipino citizen
o Take note it is not just any Filipino Citizen:
 legal age,
 in possession of full civil capacity,
 of good moral character,
 has not been convicted of any crime
involving moral turpitude;
 who is emotionally and psychologically
capable of caring for children,
 at least sixteen (16) years older than the
adoptee, and
 who is in a position to support and care for
his children in keeping with the means of the
family.
The requirement of a 16-year difference between the age of
the adopter and the adoptee may be waived when the adopted
is the biological parent of the adoptee or is the spouse of the
adoptee’s parent;
- Alien
o possessing the same qualifications as above-stated
for Filipino nationals
o with additional requirements:
 that his country has diplomatic relations with
the Republic of the Philippines,
 hat he has been living in the Philippines for
at least three (3) continuous years prior
to the filing of the petition for adoption and
maintains such residence until the adoption
decree is entered,
 that he has been certified by his diplomatic
or consular office or any appropriate
government agency to have the legal
capacity to adopt in his country, and
 that his government allows the adoptee to
enter his country as his adopted child.
RESIDENCY REQUIREMENT:
o 3 years prior
o And must continue until the decree of adoption is
granted
o During the pendency of the petition he cannot leave
the country
o he has to maintain continuous residency until the
issuance of the decree of adoption.
RESIDENCY REQUIREMENT EXCEPTION, the ALIEN is:
o A former Filipino Citizen who seeks to adopt a relative
within fourth (4th) degree of consanguinity or affinity;
or –
 His own relative he seeks to adopt
o On who seeks to adopt the legitimate child of his
Filipino spouse; or
 He is married and he seeks to adopt the
legitimate child of his spouse
o One who is married to a Filipino citizen and seeks to
adopt jointly with his spouse a relative within the
fourth (4th) degree of consanguinity or affinity of the
Filipino spouse.
The three exceptions here if you want to summarize:
1. he is adopting a relative within fourth
(4th) degree of consanguinity or affinity
and he is a former Filipino
2. a relative of his spouse within the fourth
(4th) degree of consanguinity or affinity
sand he is adopting jointly with the
Filipino spouse
Take note ha, FILIPINO pa dapat yung
SPOUSE niya.
3. Regardless of he is a Filipino he is an
alien adopting the legitimate child of a
Filipino spouse.
The last two would pertain to an alien married to a
Filipino seeking to adopt the legitimate child of the Filipino
Spouse or the relative of the Filipino spouse within fourth (4th)
degree of consanguinity or affinity.
The first would pertain to the adopter himself seeking to
adopt his own relative within fourth (4th) degree of
consanguinity or affinity and he himself is a former Filipino.
Those are the instances were the exceptions to the residency
requirement is allowed.
REPUBLIC v ALARCON VERGARA
- The SC here denied the petition for adoption because
you have here an alien an American Citizen married
to a former Filipina naturalized as US citizens seeking
to adopted the relatives of the Former Filipino Citizens
within 4th degree of consanguinity yung mga kapatid
niya, the siblings.
- So the SC, no you are not qualified to adopt.
- Because the alien is no longer married to a Filipino
seeking to adopt a relative within the 4th degree of
consanguinity. He is married to a Former Filipino.
- Second, the former Filipino cannot adopt her siblings
because she is already married and the law mandates
that a MARRIED ADOPTER must jointly adopt, and
since the husband is disqualified they cannot obtain
the adoption.
- So what was recommended here is to go for
INTERCOUNTRY ADOPTION because both of them
are already US citizens.
COURT says: THE REMEDY IS INTERCOUNTRY ADOPTION
Atty. T: but there is another solution to that na hindi nila
nakita dapat si former Filipino, the wife should have
repatriated. Should have availed RA 9225 yung ginawa ni
GRACE POE, nagreacquire siya ng kanyang Filipino Citizenship
and in that case the husband would still be married to a
Filipino seeking to adopt a relative within the 4th degree of
consanguinity they don’t have to go through intercountry
adoption.
Pwede sana yun that is another option – (Repatriation –
mabalik ang Filipino Citizenship ni spouse)
CAN A GUARDIAN ADOPT the ward?
Yes, but there must be termination of guardianship first and
clearance of financial accountabilities.
Ito na yung sinasabi natin na that a MARRIED SPOUSE
SHOULD JOINTLY ADOPT WITH HIS OR HER SPOUSE it is
MANDATORY but there are exceptions to that.
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
WHAT ARE THE EXCEPTIONS?
Exceptions:
- SECTION 4, AM 02-06-02-SC
Husband and wife shall jointly adopt, except in the
following cases:
(iv) If one spouse seeks to adopt the legitimate
child of one spouse by the other spouse; or
 Anak na yan ng asawa mo so bakit
ka pa magjoi-jointly adopt. So ikaw
lang yung mag-e-establish ng
legitimate paternity and filiation
relationship with the adoptee
therefore ikaw lang dapat ang mag
adopt hindi mo na dapat isama ang
iyong spouse.
(v) If one spouse seeks to adopt his own
illegitimate child; Provided, however, that
the other spouse has signified his consent
thereto; or
 Ito na yung sinasabi natin, can you
adopt your own child? YES. If the
child is illegitimate and you want to
raise the status of the illegitimate
child to legitimate child you can
adopt.
 Now if you are married do you need
to join the spouse? NO. the spouse
will only have to give his written
consent but you don’t have to
implead the spouse as party
petitioner as a co-petitioner, ikaw
lang dapat ang mag-adopt. Why?
It’s only just that you should be the
one to adopt by yourself without
impleading your spouse. That’s the
consequence ng kalandian mo,
while you are still single nagkaroon
ka ng illegitimate child, wag mong
idamay ang spouse mo. Because
what is the implication if you
compel the spouse to jointly adopt
with you? You will be posting your
spouse to make your illegitimate
child as her legitimate child entitled
to inherit from the spouse that is an
unjust situation that the law will not
allow. Ikaw lang dapat ang mag-
adopt ng sarili mong illegitimate
child if only to raise the status of
the child from illegitimate to
legitimate. Hanggang doon lang
ang best interest of the child ang
kino-contemplate ng batas it does
not extend to compelling the
spouse to become the legitimate
parent of the adopted child. Besides
yung illegitimate child nay un may
nanay pa rin yun, hindi mo rin
basta basta ma deprive yung other
parent by compelling the spouse to
jointly adopt with the adopting
parent.
(vi) If the spouse are legally separated from
each other.
 When there is already a decree of
legal separation, kanya kanya na
sila, the party seeking to adopt
need not include the other spouse
as a co-petitioner.
 Take note than in legal separation
the marriage tie is not severed.
That is why you cannot remarry,
however when it comes to adoption
forget about the marriage ties ikaw
lang dapat ang mag-adopt, it is
your own responsibility.
WHY IS IT MANDATORY TO JOIN THE OTHER SPOUSE? WHY
IS IT MANDATORY THAT BOTH SPOUSES SHOULD ADOPT? IF
YOU ARE MARRIED WHY DO YOU HAVE TO JOINTLY ADOPT?
REASON FOR MANDATORY RULE
IN RE: PETITION FOR ADOPTION OF MONINA AND
MICHAEL LIM
- This is in consonance with the concept of joint
parental authority which is the ideal situation. As the
child to be adopted is elevated to the level of
legitimate child it is but natural to require both
spouses to jointly adopt, the rule also ensues
harmony between the spouses.
- So kapag married and it doesn’t fall on any of the
exceptions, the law considers joint as necessary and
natural consequence of the elevation of the child to
the adoption of the child as a legitimate child of the
parents and it also ensues the harmony between the
spouses it is but a consequence t the exercise of
parental authority over the adopted child.
WHERE DO YOU FILE THE PETITION? (VENUE)
SPECIAL RULES (AM 02-06-02-SC)
Section 6. Venue. – The petition for adoption shall be filed
with the Family Court of the province or city where the
prospective adoptive parents reside.
- FAMILY COURT in the province where the respective
ADOPTIVE PARENTS resides.
- Take note adoptive parents place of residence, in the
FAMILY COURT.
FORM OF PETITION
- Verified
- With certificate against forum shopping
- The peculiarity of this rule is that you have to be very
specific in the caption of your petition
Specifically states at the heading of initiatory pleading
where it include:
o Application for change of name
o Rectification of simulated birth
o Voluntary of involuntary commitment of
children
o Declaration of child as abandoned,
dependent or neglected child.
 All these must be reflected in your
caption, in the heading of the
petition
CONTENTS OF PETITION
SPECIAL RULES (AM 02-06-02-SC)
Section 7. Contents of the Petition. – The petition shall be
verified and specifically state at the heading of the initiatory
pleading whether the petition contains an application for
change of name, rectification of simulated birth, voluntary or
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
involuntary commitment of children, or declaration of child as
abandoned, dependent or neglected.
1) If the adopter is a Filipino citizen, the petition shall
allege the following:
(a) The jurisdictional facts;
(b) That the petitioner is of legal age, in
possession of full civil capacity and legal
rights; is of good moral character; has not
been convicted of any crime involving moral
turpitude; is emotionally and psychologically
capable of caring for children; is at least
sixteen (16) years older than the adoptee,
unless the adopter is the biological parent of
the adoptee or is the spouse of the
adoptee’s parent; and is in a position to
support and care for his children in keeping
with the means of the family and has
undergone pre-adoption services as required
by Section 4 of Republic Act No. 8552.
2) If the adopter is an alien, the petition shall allege
the following:
(a) The jurisdictional facts;
(b) Sub-paragraph 1(b) above;
(c) That his country has diplomatic relations
with the Republic of the Philippines;
(d) That he has been certified by his
diplomatic or consular office or any
appropriate government agency to have the
legal capacity to adopt in his country and his
government allows the adoptee to enter his
country as his adopted child and reside there
permanently as an adopted child; and
(e) That he has been living in the Philippines
for at least three (3) continuous years prior
to the filing of the petition and he maintains
such residence until the adoption decree is
entered.
The requirements of certification of the
alien’s qualification to adopt in his country
and of residency may be waived if the alien:
(i) is a former Filipino citizen who
seeks to adopt a relative within the
fourth degree of consanguinity or
affinity; or
(ii) seeks to adopt the legitimate
child of his Filipino spouse; or
(iii) is married to a Filipino citizen
and seeks to adopt jointly with his
spouse a relative within the fourth
degree of consanguinity or affinity
of the Filipino spouse.
3) If the adopter is the legal guardian of the adoptee,
the petition shall allege that guardianship had been
terminated and the guardian had cleared his financial
accountabilities.
4) If the adopter is married, the spouse shall be a co-
petitioner for joint adoption except if:
(a) one spouse seeks to adopt the legitimate
child of the other, or
(b) if one spouse seeks to adopt his own
illegitimate child and the other spouse
signified written consent thereto, or
(c) if the spouses are legally separated from
each other.
5) If the adoptee is a foundling, the petition shall
allege the entries which should appear in his birth
certificate, such as name of child, date of birth, place
of birth, if known; sex, name and citizenship of
adoptive mother and father, and the date and place
of their marriage.
6) If the petition prays for a change of name, it shall
also state the cause or reason for the change of
name.
In all petitions, it shall be alleged:
(a) The first name, surname or names, age
and residence of the adoptee as shown by
his record of birth, baptismal or foundling
certificate and school records.
(b) That the adoptee is not disqualified by
law to be adopted.
(c) The probable value and character of the
estate of the adoptee.
(d) The first name, surname or names by
which the adoptee is to be known and
registered in the Civil Registry.
A certification of non-forum shopping shall be
included pursuant to Section 5, Rule 7 of the 1997
Rules of Civil Procedure.
- FILIPINO CITIZENS
a. Jurisdictional facts
b. Adopters qualifications
c. Adopter has undergone Pre-adoption
services under Section4, RA 8552
 Counselling sessions, pre adoption
fora and seminars to (1) resolve
possible adoption issues, (2) to
prepare him/her for effective
parenting, (3) help ssess their
motivations, capacity and readiness
to adopt.
Aside from the jurisdictional facts and qualifications of the
adopter, you have to make mention, you have to alleged that
the adoption has undergone pre-adoption services.
- ALIEN ADOPTER
a. The same with Filipino adpter
b. Plus additional requirements:
- diplomatic relations of his country with
the Philippines
- compliance on residency requirement
- legal capacity to adopt
- allowance of the adoptee to enter his
country as his adoptee
If the EXCEPTION applies you have to allege the circumstances
constituting the exceptions.
- GUARDIAN
o Guardianship has been terminated
o Guardianship has been cleared of his
financial accountabilities
- MARRIED ADOPTER
o You have to join the spouse is co –petitioner
unless exceptions apply.
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Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
o In which case you have to also allege the
circumstances that constitute the exception.
- FOUNDLING ADOPTEE
o You have to also allege the circumstances
that constitute the allegation of foundling
adoptee and also all the facts that show that
the adoptee is a foundling, abandoned,
dependent or neglected child.
o SECTION 9, AM 02-06-02-SC
SPECIAL RULES (AM 02-06-02-SC)
Section 9. Adoption of a foundling, an abandoned, dependent
or neglected child. – In case the adoptee is a foundling, an
abandoned, dependent or neglected child, the petition shall
allege:
(a) The facts showing that the child is a foundling,
abandoned, dependent or neglected;
(b) The names of the parents, if known, and their
residence. If the child has no known or living parents,
then the name and residence of the guardian, if any;
(c) The name of the duly licensed child-placement
agency or individual under whose care the child is in
custody; and
(d) That the Department, child-placement or child-
caring agency is authorized to give its consent.
ADOPTEE
a. FOUNDLING
b. ABANDONED
c. DEPENDENT
d. NEGLECTED CHILD
In case of abandoned, dependent and neglected child you
have to allege the name of the parents and the residence or
the name or the duly licensed child-placing agency who has
care and custody of the child. And the fact that the DSWD or
the child-placing, child-caring agency is authorized to give
consent.
CHANGE OF NAME
SPECIAL RULES (AM 02-06-02-SC)
Section 10. Change of name. – In case the petition also prays
for change of name, the title or caption must contain:
(a) The registered name of the child;
(b) Aliases or other names by which the child has
been known; and
(c) The full name by which the child is to be known.
IF THE PETITION INCLUDES A CHANGE OF NAME
- Reflect in the caption:
o The registered name of the child;
o Aliases or other names by which the child
has been known; and
o The full name by which the child is to be
known.
- Body of the petition must allege:
o Name, surname or names, age and
residence of the doptee as shown by his
birth record, baptismal and foundling
certificate and school records
o Adoptee is not disqualified by law to be
adopted
o Probable value and character of adoptee’s
estate
o First name, surname or names by which
adoptee is to be known and registered in the
Civil Registry
So if you notice under the Special Rules on Adoption the
CHANGE OF NAME OF THE CHILD IS NOW ALLOWED.
What is the history of that?
SURNAME OF ADOPTEE
Family Code. Art. 189. Adoption shall have the following
effects:
(1) For civil purposes, the adopted shall be deemed to
be a legitimate child of the adopters and both shall
acquire the reciprocal rights and obligations arising
from the relationship of parent and child, including
the right of the adopted to use the surname of the
adopters;
(2) The parental authority of the parents by nature
over the adopted shall terminate and be vested in the
adopters, except that if the adopter is the spouse of
the parent by nature of the adopted, parental
authority over the adopted shall be exercised jointly
by both spouses; and
(3) The adopted shall remain an intestate heir of his
parents and other blood relatives. (39(1)a, (3)a, PD
603)
In the 1996 case of REPUBLIC v HERNANDEZ (OLD RULE)
- The SC said that what can only be change by
reasonable option if the surname of the adopted child
to follow the surname of the adopter.
But under the NEW RULE: The SC allow the change of first
name to be included in the petition for adoption.
- So it is a combination now, a highbrid petition that
includes the change of first name in response to the
Ruling of the SC on Republic v Hernandez and this
SPECIAL RULE is also based on Domestic Adoption
Law and that is Congress response also to this ruling
because the SC in 1996 only allow the change of
surname as a logical consequence of adoption but not
the change of the first name and because of that the
domestic adoption law allowed the change of name,
including the first name when you petition for
adoption.
- Kaya masyado nang marami ang inilalagay niyo diyan.
If the adoption includes the change of name, then
ang dami daming ilalagay sa caption pa lang dapat
nag reflect na yan. As well as the BODY of the
petition in all must be alleged.
RECTIFICATION OF SIMULATED BIRTH
SPECIAL RULES (AM 02-06-02-SC)
Section 8. Rectification of Simulated Birth. – In case the
petition also seeks rectification of a simulated of birth, it shall
allege that:
(a) Petitioner is applying for rectification of a
simulated birth;
(b) The simulation of birth was made prior to the date
of effectivity of Republic Act No. 8552 and the
application for rectification of the birth registration
and the petition for adoption were filed within five
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
years from said date;
(c) The petitioner made the simulation of birth for the
best interests of the adoptee; and
(d) The adoptee has been consistently considered and
treated by petitioner as his own child.
Ito rectification of simulated birth it no longer apply because
this was only allowed within 5 years from the effectivity of RA
8552 in 1998, ended in 2003, right now wala na ito, you cn no
longer avail this.
ANNEXES TO THE PETITION
AM 02-06-02-SC
Annexes under Section 11 go over that because that is very
important if you are going to prepare a petition for adoption.
ATTACHMENTS
SECTION 11 – AFFIDAVIT OF CONSENT
SPECIAL RULES (AM 02-06-02-SC)
Section 11. Annexes to the Petition. – The following
documents shall be attached to the petition:
A. Birth, baptismal or foundling certificate, as the case
may be, and school records showing the name, age
and residence of the adoptee;
B. Affidavit of consent of the following:
1. The adoptee, if ten (10) years of age or
over;
2. The biological parents of the child, if
known, or the legal guardian, or the child-
placement agency, child-caring agency, or
the proper government instrumentality which
has legal custody of the child;
3. The legitimate and adopted children of
the adopter and of the adoptee, if any, who
are ten (10) years of age or over;
4. The illegitimate children of the adopter
living with him who are ten (10) years of age
or over; and
5. The spouse, if any, of the adopter or
adoptee.
C. Child study report on the adoptee and his biological
parents;
D. If the petitioner is an alien, certification by his
diplomatic or consular office or any appropriate
government agency that he has the legal capacity to
adopt in his country and that his government allows
the adoptee to enter his country as his own adopted
child unless exempted under Section 4(2);
E. Home study report on the adopters. If the adopter
is an alien or residing abroad but qualified to adopt,
the home study report by a foreign adoption agency
duly accredited by the Inter-Country Adoption Board;
and
F. Decree of annulment, nullity or legal separation of
the adopter as well as that of the biological parents of
the adoptee, if any.
- The most important thing that you should attach
would be the written consent of the biological parent
- Kailangan na those persons who are required to give
written consent you have to attach that.
- Sino sino yun?
o Biological parent
o Adoptee who is 10 years of age - kailanagn
mag execute ng affidavit of consent
o Legitimate and adopted children
So if the adopter already have legitimate and adopted
children 10 years of age or above then kailangan din
kunan sila ng affidavit of consent.
And the spouse, the non-petitioning spouse kailangan din
magbigay ng affidavit of consent.
So this is very important most especially the written consent of
the biological parent.
The written consent of the biological parent must be submitted
and must be categorical and must be in writing and signed by
the parent. It cannot be in audit, the trial custody report that
was not testified to by the parent – that was the ruling of the
SC in LANDINGIN v REPUBLIC.
AS A RULE:
- written consent of biological parent is required it is an
INDISPENSABLE REQUIREMENT for validity of the
decree of adoption.
- INDISPENSABLE REQUIREMENT (LANDINGIN v
REPUBLIC), so kapag walang written consent void
and proceeding.
EXCEPTION TO THE RULE:
- The parents of abandoned child - Abandonment of
the child (CANG v CA)
- Or when the parents are insane or hopeless
intemperate – they cannot execute an affidavit of
consent if they are insane.
The court may acquire jurisdiction over the case even without
written consent of the parents or one of the parents provided
that the petition for adoption alleges the facts sufficient to
warrant exemption from compliance therewith. This is in
consonance with the liberality with which this Court treats the
procedural aspect of adoption. (CANG v CA)
Like I said the written consent of biological parent is an
INDISPENSABLE REQUIREMENT however if you want to prove
these exceptions then you must allege that in the petition.
HOW ABOUT THE WRITTEN CONSENT OF ADOPTER’S
CHILDREN?
Then if the adopter has children 10 year or above then they
have to execute an affidavit of consent.
LANDINGIN vs REPUBLIC
- (Notarized abroad – not sufficient- It must be
authenticated by the Philippine Consulate Office/
Philippine Embassy)
- The written consent of the children here was
executed abroad by a foreign notary public.
- Merong notary public doon and executed before him.
- Is that sufficient?
- The SC said NO, it is not sufficient, you have to have
it consularized, meaning you go to the Philippine
Embassy / Philippine Consulate Office and have it
authenticated by that office.
- Pagdating ditto dapat may Red Ribbon galing sa
Philippine Embassy / Philippine Consulate Office, only
then that it could be admitted as competent evidence
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
in the proceeding for adoption without that hindi niyo
pwedeng i-consider n gating Adoption Court
WHAT ARE THE OTHER ANNEXES?
- CHILD CUSTODY REPORT
- HOME STUDY REPORT
If the adopter has been separated or marriage has been
nullified or divorce ATTACHED:
- DECREE OF ANNULMENT, NULLITY OF LEGAL
SEPARATION OR DIVORCE
ORDER OF HEARING
SPECIAL RULES (AM 02-06-02-SC)
Section 12. Order of Hearing. – If the petition and
attachments are sufficient in form and substance, the court
shall issue an order which shall contain the following:
(1) the registered name of the adoptee in the birth
certificate and the names by which the adoptee has
been known which shall be stated in the caption;
(2) the purpose of the petition;
(3) the complete name which the adoptee will use if
the petition is granted;
(4) the date and place of hearing which shall be set
within six (6) months from the date of the issuance of
the order and shall direct that a copy thereof be
published before the date of hearing at least once a
week for three successive weeks in a newspaper of
general circulation in the province or city where the
court is situated; Provided, that in case of application
for change of name, the date set for hearing shall not
be within four (4) months after the last publication of
the notice nor within thirty (30) days prior to an
election.
The newspaper shall be selected by raffle under the
supervision of the Executive Judge.
(5) a directive to the social worker of the court, the
social service office of the local government unit or
any child-placing or child-caring agency, or the
Department to prepare and submit child and home
study reports before the hearing if such reports had
not been attached to the petition due to unavailability
at the time of the filing of the latter; and
(6) a directive to the social worker of the court to
conduct counseling sessions with the biological
parents on the matter of adoption of the adoptee and
submit her report before the date of hearing.
At the discretion of the court, copies of the order of hearing
shall also be furnished the Office of the Solicitor General
through the provincial or city prosecutor, the Department and
the biological parents of the adoptee, if known.
If a change in the name of the adoptee is prayed for in the
petition, notice to the Solicitor General shall be mandatory.
UPON RECEIPT OF THE PETITION – ORDER OF HEARING:
CONTENTS
You have to state here:
- the registered name of the adoptee in the birth
certificate and the names by which the adoptee has
been known which shall be stated in the caption;
- the purpose of the petition;
- the complete name which the adoptee will use if the
petition is granted;
- the date and place of hearing which shall be set
within six (6) months from the date of the issuance of
the order and shall direct that a copy thereof be
published before the date of hearing at least once a
week for three successive weeks in a newspaper of
general circulation in the province or city where the
court is situated;
- Provided, that in case of application for change of
name, the date set for hearing shall not be within four
(4) months after the last publication of the notice nor
within thirty (30) days prior to an election.
- This requires publication
- The order of hearing requires the social worker to
conduct the child and home study reports before the
hearing if such reports had not been attached to the
petition due to unavailability at the time of the filing
of the latter; and
- a directive to the social worker of the court to
conduct counseling sessions with the biological
parents on the matter of adoption of the adoptee and
submit her report before the date of hearing.
To be furnished to:
- OSG
- NOTICE IS MANDATORY IF WITH CHANGE of NAME
INCLUDED
- DSWD
- BIOLOGICAL PARENTSOF THE ADOPTEE, IF KNOWN
CHILD AND HOME STUDY REPORTS
SPECIAL RULES (AM 02-06-02-SC)
Section 13. Child and Home Study Reports. – In preparing
the child study report on the adoptee, the concerned social
worker shall verify with the Civil Registry the real identity and
registered name of the adoptee. If the birth of the adoptee
was not registered with the Civil Registry, it shall be the
responsibility of the social worker to register the adoptee and
secure a certificate of foundling or late registration, as the case
may be.
The social worker shall establish that the child is legally
available for adoption and the documents in support thereof
are valid and authentic, that the adopter has sincere intentions
and that the adoption shall inure to the best interests of the
child.
In case the adopter is an alien, the home study report must
show the legal capacity to adopt and that his government
allows the adoptee to enter his country as his adopted child in
the absence of the certification required under Section 7(b) of
Republic Act No. 8552.
If after the conduct of the case studies, the social worker finds
that there are grounds to deny the petition, he shall make the
proper recommendation to the court, furnishing a copy thereof
to the petitioner.
CHILD STUDY REPORT
- is basically a report about ADOPTEE
- Social Worker will conduct an investigation as to the
background of the adoptee. So lahat i-che-check niya
ang birth record, everything about the child. Social
worker will make an extensive research on that.
As opposed to:
CHILD AND HOME STUDY REPORT
- It is all about the ADOPTERS
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
- So the social worker will investigate, make extensive
research about the PROSPECTIVE ADOPTERS.
After conducting the CHILD and HOME STUDY REPORT the
social worker will SUMBIT that to the COURT.
Take note that after conducting these studies the SOCIAL
WORKER if he finds that there are grounds to deny the petition
shall MAKE A RECOMMENDATION TO THE COURT to deny the
petition. Pag may nakita siya na something wrong doon na
hindi pwede i-grant ang adoption or something wrong with
the adopters, unfit to become adopters the social worker has
the duty to make the recommendations in the CHILD and
HOME STUDY REPORTS that he will be submitting in courts.
SPECIAL RULES (AM 02-06-02-SC)
Section 14. Hearing. – Upon satisfactory proof that the order
of hearing has been published and jurisdictional requirements
have been complied with, the court shall proceed to hear the
petition. The petitioner and the adoptee must personally
appear and the former must testify before the presiding judge
of the court on the date set for hearing.
The court shall verify from the social worker and determine
whether the biological parent has been properly counseled
against making hasty decisions caused by strain or anxiety to
give up the child; ensure that all measures to strengthen the
family have been exhausted; and ascertain if any prolonged
stay of the child in his own home will be inimical to his welfare
and interest.
During the hearing
- The compliance with the publication requirement has
to be proven
- The compliance as a jurisdictional requirement has to
be proven
The following must appear:
- The petitioner
- The adopter who should testify before the court as
well as
- The adoptee
- The Social Worker he has to testify particularly on the
reports he has conducted and submitted in court
The court will have to ascertain from the social worker whether
the biological parents has been properly counselled ensure that
all measures to strengthen the family have been exhausted;
and ascertain if any prolonged stay of the child in his own
home will be inimical to his welfare and interest.
There is this what we call the supervised trial custody.
SUPERVISED TRIAL CUSTODY
SPECIAL RULES (AM 02-06-02-SC)
Section 15. Supervised Trial Custody. – Before issuance of
the decree of adoption, the court shall give the adopter trial
custody of the adoptee for a period of at least six (6) months
within which the parties are expected to adjust psychologically
and emotionally to each other and establish a bonding
relationship. The trial custody shall be monitored by the social
worker of the court, the Department, or the social service of
the local government unit, or the child-placement or child-
caring agency which submitted and prepared the case studies.
During said period, temporary parental authority shall be
vested in the adopter.
The court may, motu proprio or upon motion of any party,
reduce the period or exempt the parties if it finds that the
same shall be for the best interests of the adoptee, stating the
reasons therefor.
An alien adopter however must complete the 6-month trial
custody except the following:
a) a former Filipino citizen who seeks to adopt a
relative within the fourth (4th) degree of
consanguinity or affinity; or
b) one who seeks to adopt the legitimate child of his
Filipino spouse; or
c) one who is married to a Filipino citizen and seeks
to adopt jointly with his or her spouse the latter’s
relative within the fourth (4th) degree of
consanguinity or affinity.
If the child is below seven (7) years of age and is placed with
the prospective adopter through a pre-adoption placement
authority issued by the Department, the court shall order that
the prospective adopter shall enjoy all the benefits to which
the biological parent is entitled from the date the adoptee is
placed with him.
The social worker shall submit to the court a report on the
result of the trial custody within two weeks after its
termination.
Under the supervisions of the DSWD or the Social Worker.
WHAT IS THE PURPOSE OF THIS?
- Ensure the adjustment of both parties, the emotional
readiness of both the adopters and the adoptee
stabilizing their filial relationship. Magakakaroon muna
na trail custody kung magkakasundo ba sila while
they live together as parents and child.
- This is to be monitored by the Social Worker or by the
DSWD or the CSSDO, child-placement or child-caring
agency
- How long? 6 months period at the very least - dirong
the 6 months period the parental authority shall be
temporarily vested in the adopters.
- The 6 months period can be reduced upon motion of
any party for the best interest of the child
- It can even be dispensed with, in the case yung
adoptee na of age already but considered during his
minority as the child of the adopter. So no need for a
supervised trial custody, matagla na sila magkasama
since minority pa ng adoptee. That case you can
dispensed with the supervised trial custody because
you are no longer dealing with the minor child
adoptee.
- However the 6 months supervised trial custody is
mandatory and cannot be dispensed with if the
adopter is an alien
GENERAL RULE: Mandatory if the adopter is an ALIEN. Has
to comply with the 6 months supervised trial custody.
EXCEPTION: In residency requirement will also be the
exceptions to the mandatory supervised trial custody to an
alien.
After the Supervised Trial Custody the Social Worker shall
submit a report to the court. Magrereport siya kung ano ang
nagyari kung harmonious ba ang relationship or parang aso at
pusa yung parties. On the basis of that the court will make a
decision or judgment on whether to grant the adoption.
DECREE OF ADOPTION
SECTION 15, AM 02-06-02-SC
- Order Clerk of Court
SPECIAL RULES (AM 02-06-02-SC)
Section 16. Decree of Adoption. – If the supervised trial
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
custody is satisfactory to the parties and the court is convinced
from the trial custody report and the evidence adduced that
the adoption shall redound to the best interests of the
adoptee, a decree of adoption shall be issued which shall take
effect as of the date the original petition was filed even if the
petitioners die before its issuance.
The decree shall:
A. State the name by which the child is to be known
and registered;
B. Order:
1) the Clerk of Court to issue to the adopter
a certificate of finality upon expiration of the
15-day reglementary period within which to
appeal;
2) the adopter to submit a certified true copy
of the decree of adoption and the certificate
of finality to the Civil Registrar where the
child was originally registered within thirty
(30) days from receipt of the certificate of
finality. In case of change of name, the
decree shall be submitted to the Civil
Registrar where the court issuing the same is
situated.
3) the Civil Registrar of the place where the
adoptee was registered:
a. to annotate on the adoptee’s
original certificate of birth the
decree of adoption within thirty
(30) days from receipt of the
certificate of finality;
b. to issue a certificate of birth
which shall not bear any notation
that it is a new or amended
certificate and which shall show,
among others, the following:
registry number, date of
registration, name of child, sex,
date of birth, place of birth, name
and citizenship of adoptive mother
and father, and the date and place
of their marriage, when applicable;
c. to seal the original certificate of
birth in the civil registry records
which can be opened only upon
order of the court which issued the
decree of adoption; and
d. to submit to the court issuing the
decree of adoption proof of
compliance with all the foregoing
within thirty days from receipt of
the decree.
If the adoptee is a foundling, the court shall
order the Civil Registrar where the foundling
was registered, to annotate the decree of
adoption on the foundling certificate and a
new birth certificate shall be ordered
prepared by the Civil Registrar in accordance
with the decree.
- If the supervised trial custody is satisfactory to the
parties and the court determines that the adoption
shall redound to the best interests of the child, then
the court will grant the petition.
- Take note once the court grants the petition and
issues a decree of adoption, the decree of adoption
will take effect or retroact as of the date of filing the
petition that is of course to safeguard the interest of
the adopted child
The decree shall:
- State the name by which the child is to be known and
registered;
- Shall issue the corresponding Order:
o the Clerk of Court to issue to the adopter a
certificate of finality
o the adopter to submit a certified true copy of
the decree of adoption and the certificate of
finality to the Civil Registrar for the issuance
of the new birth record.
ANO ANG MANGYAYARI? WHAT WILL THE CIVIL REGISTRAR
DO AFTER RECEIVING THE COPY OF THE ORDER OF
ADOPTION OR THE DECREE OF ADOPTION?
o the Civil Registrar of the place where the
adoptee was registered:
 to annotate that on the birth
certificate of adoptee
 to seal the original certificate of
birth of the adoptee and put it in a
safe place; and
 to issue a new one. This time the
birth record will now bear the name
of the adoptive parents as the
parents of the adoptee. No
annotation will be reflected in the
new birth certificate.
So it is as if ipinanganak siya, no reference whatsoever to the
adoption. Because the annotation on the adoption will only be
made on the original birth record which would be sealed and
put in a safe place, itatago yun, to be kept in a separate safe
place. May bagong birth record na i-issue.
I think this is what happened to the case of GRACE POE, after
her decree of adoption was issued walang new birth record na
inissue until they discovered it way back in 2006, when she
came back, so they have to ask for the issuance of a new birth
record, because the law requires na may bagong birth record
without any reference to the adoption proceedings.
That is to do away with the stigma that is attached to the
adopted children kapag nalaman na adopted sila minsan that is
a cause of bullying in the school or in any other place for that
matter. The moment you are known to be an adopted child
sometimes it is not to the best interest of the child to disclose
that fact kasi mabubully yung bata. Iba ang tingin sa kanya ng
kaklase niya or ng society for that matter.
So here the new birth record will not bear, will not show any
reference to the adoption but will only show the registry
number, date of registration, name of child, sex, date of birth,
place of birth, name and citizenship of adoptive mother and
father, and the date and place of their marriage, when
applicable.
*In the ponentia of Justice Sereno she actually cited the law on
adoption saying that Grace Poe did not commit any material
misrepresentation what she declared in her certificate of
candidacy that she is a natural born Filipino because she has
every right to rely on her decree of adoption on her new birth
record which reflects the citizenship of her adoptive parents. So
sino yung adoptive parents niya si Susan Roces and Fernando
Poe, so she has every right to rely on that and to say that she is
a natural born Filipino because of this new birth record issued in
her favor after her adoption of the spouses Poe.
If ADOPTEE IS FOUNDLING
- the court will also the Civil Registrar to annotate the
decree of adoption on the foundling certificate
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
- again to be sealed and kept in a safe place
- and for the issuance of the new birth certificate in
accordance with the decree
That is what precisely what happened to Grace Poe, ang kanyang
certificate of foundling wala na yun sa record nakatago na yun by
virtue of the adoption decree and the new one is issued. She has
every right to rely on the detail, on the data supplied in her new birth
record when she declared that she was a natural born Filipino, that
was in a separate opinion of Chief Justice Sereno.
My main critic of the SC there why do they have to go into the nitty-
gritty details of the citizenship of Grace Poe as well as her residency
when according to the majority of them the COMELEC has no
jurisdiction to rule on her qualifications.
Hintayin muna magkaroon ng election, hintayin muna manalo si Grace
Poe and a corresponding filed before the Presidential Electoral
Tribunal before you can go into the details of her qualifications in
terms or residency and citizenship yet they went into full length
discussion more than thousand pages, lahat sila nagdiskurso on the
citizenship or residency on the qualifications of Grace Poe.
That also makes it questionable because there is another petition
involving the ruling of the SET on the qualifications as a senator,
precisely kasali doon yung citizenship qualifications niya but the SC
did not rule there, hindi nila ni rule yun, they separated, diba
remember?, they did not consolidate the petitions questioning the
ruling of the SET and the petition questioning the ruling of the
COMELEC, hiniwalay nila although nauna na file sa SC yung sa SET na
decision kasi una sila nagbigay ng ruling that she is qualified, she is a
natural born Filipino, and then inununa nila itong sa COMELEC which
came after.
Despite Ruling that the COMELEC has no jurisdiction to rule on the
qualifications before the conduct of the elections they went into the
details on her citizenship and residency because according to them
Section 78 of the Omnibus Election Code will only pertain to the
material misrepresentation made in the COC as to the qualifications of
Grace Poe so dapat hanggang doon lang, and to a certain extent I
agree with the separate opinion of CAGIWA, hanggang doon ka lang
dapat wag kana magdiskurso about citizenship at residency but they
went into the full length discussion of her citizenship and residency.
WHY?
Dapat doon yan tinatanong sa isang petition involving the SET case,
kasi yun talaga Electoral Tribunal yun. Senate Electoral Tribunal yun
that is really the proper forum and has jurisdiction to rule on her
qualifications.
ISN’T THAT A PRE-JUDGMENT OF THE PETITION INVOLVING THE
SET RULING? Yun ang pinakamalaking question mark doon.
The IBP came out with a statement that the ruling of the SC is not
definitive on the citizenship of Grace Poe, according to Fr. Rannie
Aquino the IBP officers who issued its risk for being put in contempt
for making that statement kasi dinesign nila eh, sinabi nila na hindi
naman talaga ito ang majority rule in terms of citizenship qualification
is concerned.
The decision itself raises so much confusion, instead of clarifying lalo
nilang pinagulo on the issue on jurisdiction. If COMELEC has no
jurisdiction why go through the merit of discussing the citizenship and
the residency?
Only on issue of jurisdiction, if there is grave abuse discretion deny, or
grant the petition ganyan lang. But they went so far as to rule on her
citizenship.
What now is the effect of that on the pending petition involving the
ruling of the SET? Isn’t that a pre-judgment?
Bakit hindi nila sinabay ang paglabas ng decision in so far as the
citizenship doon sa SET ruling, bacuas that is really the proper forum
for them to discuss it, bakit ditto, na walang jurisdiction ang
COMELEC?
That is my criticism in the action of the SC. I am waiting for the MR to
be resolve then I will make my facebook pronouncement, hinihintay
ko lang baka i-contempt ako ng SC. So I am waiting beaus that is
really a very big question mark, bakit ganon? Hinihintay natin ang
ruling on the MR, pero kung matagl ang MR at hindi ako
makapaghintay, I will release that critic bahala na ma-contempt.
Back to adoption...
IF YOU DO NOT HAVE THE DECREE OF ADOPTION, CAN YOU
PROVE THE FACT OF ADOPTION?
REYES vs. SOTERO: In this case the decree of adoption was
not produced because the decree of adoption was the best
proof of the fact of adoption
PROOFS WERE PRESENTED TO PROVE THE FACTS OF
ADOPTION:
What was produced here were the following:
1. Certification issued by the municipal civil registrar as
to the entire of court decree
2. Certification by the clerk of court as to the existence
of the decree of adoption
3. Copy of Judicial Form No. 43, indicating that the
adoption decree was on file in the General Docket of
the RTC
In this case the DECREE OF ADOPTION itself was not
produced, siguro nawala or na misplace, so ito lang ang
naproduce nila to show the fact of adoption. Is that enough?
The SC said, YES these proofs are sufficient. The certifications
issued by the municipal civil registrar and the clerk of court
were issued under the seal of the issuing offices and were
signed by the proper officers. These are thus presumed to
have been regularly issued as part of the official duties that
said public officers perform. It should be borne in mind that an
adoption decree is a public document required by law to be
entered into the public records, the official repository of which,
as well as all other judicial pronouncements affecting the
status of individuals, is the local civil registrar’s office as well as
the court which rendered the judgment.
IS THERE SUCH A THING AS CONFIRMATION OF A DE FACTO
ADOPTION? NO SUCH THING
IN THE CASE YUNG INALAGAAN SINCE MINORITY NG NANAY-
NANAYAN MO OR TATAY-TATAYAN MO IS THAT ENOUGH
GROUND FOR YOU TO GO TO COURT NA, I-CONFIRM MO NA
LANG YUNG DE FACTO ADOPTION SA BATANG ITO?
The SC said there is no such thing.
Kaya nga provided as one of the scenario or one of the
situations that a person even if you attained the age of
majority that you can still petition for the adoption of that
person if you can show that during his minority he has been
treated as the child of the adopters. So ito yung scenario nung
de facto adoption, so there is no short cut to it, YOU HAVE TO
GO TRHOUGH THE SAME PROCEDURE. Magfile ka ng petition,
i-allege ang dapat i –allege, i-attach and dapat i-attach, go
through publication, change of name and all of those things
you need to go through in the proceeding should be filed.
There is NO SHORT CUT, NO CONFIRMATION OF A DE FACTO
ADOPTION.
OCA vs. GINES
- THE ONLY PROCEEDING IS UNDER THE SPECIAL
RULES
- NO CONFIRMATION OF A DE FACTO ADOPTION
BOOK OF ADOPTION
SPECIAL RULES (AM 02-06-02-SC)
Section 17. Book of Adoptions. – The Clerk of Court shall
keep a book of adoptions showing the date of issuance of the
decree in each case, compliance by the Civil Registrar with
Section 16(B)(3) and all incidents arising after the issuance of
the decree.
Take note that the book of adoption to be kept by the Clerk of
Court regarding the date of issuance of the decree compliance
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
by the Civil Registrar and all incidents arising after the issuance
of the decree.
ANO ITONG “ALL INCIDENTS ARISING AFTER THE
ISSUANCE OF THE DECREE”?
Ito yun, in case of rescission of adoption.
RESCISSION OF ADOPTION
SPECIAL RULES (AM 02-06-02-SC)
Section 19. Rescission of Adoption of the Adoptee. – The
petition shall be verified and filed by the adoptee who is over
eighteen (18) years of age, or with the assistance of the
Department, if he is a minor, or if he is over eighteen (18)
years of age but is incapacitated, by his guardian or counsel.
The adoption may be rescinded based on any of the following
grounds committed by the adopter:
1) repeated physical and verbal maltreatment by the
adopter despite having undergone counseling;
2) attempt on the life of the adoptee;
3) sexual assault or violence; or
4) abandonment or failure to comply with parental
obligations.
Adoption, being in the best interests of the child, shall not be
subject to rescission by the adopter. However, the adopter
may disinherit the adoptee for causes provided in Article 919
of the Civil Code.
Section 20. Venue. – The petition shall be filed with the
Family Court of the city or province where the adoptee resides.
Section 21. Time within which to file petition. – The adoptee,
if incapacitated, must file the petition for rescission or
revocation of adoption within five (5) years after he reaches
the age of majority, or if he was incompetent at the time of
the adoption, within five (5) years after recovery from such
incompetency.
Section 22. Order to Answer. – The court shall issue an order
requiring the adverse party to answer the petition within
fifteen (15) days from receipt of a copy thereof. The order and
copy of the petition shall be served on the adverse party in
such manner as the court may direct.
Section 23. Judgment. – If the court finds that the allegations
of the petition are true, it shall render judgment ordering the
rescission of adoption, with or without costs, as justice
requires.
The court shall order that the parental authority of the
biological parent of the adoptee, if known, or the legal custody
of the Department shall be restored if the adoptee is still a
minor or incapacitated and declare that the reciprocal rights
and obligations of the adopter and the adoptee to each other
shall be extinguished.
The court shall further declare that successional rights shall
revert to its status prior to adoption, as of the date of
judgment of judicial rescission. Vested rights acquired prior to
judicial rescission shall be respected.
It shall also order the adoptee to use the name stated in his
original birth or foundling certificate.
The court shall further order the Civil Registrar where the
adoption decree was registered to cancel the new birth
certificate of the adoptee and reinstate his original birth or
foundling certificate.
Section 24. Service of Judgment. – A certified true copy of
the judgment together with a certificate of finality issued by
the Branch Clerk of the Court which rendered the decision in
accordance with the preceding Section shall be served by the
petitioner upon the Civil Registrar concerned within thirty (30)
days from receipt of the certificate of finality. The Civil
Registrar shall forthwith enter the rescission decree in the
register and submit proof of compliance to the court issuing
the decree and the Clerk of Court within thirty (30) days from
receipt of the decree.
The Clerk of Court shall enter the compliance in accordance
with Section 17 hereof.
WHO MAY FILE RESCISSION?
- Only Adoptee (the adopters have no right to rescind
the adoption)
- Over 18 years old
- Over 18 years old - but if he is incapacitated with the
assistance of the guardian or counsel
- Minor but with the assistance with the DSWD
The ADOPTER CANNOT RESCIND but his REMEDY is
DISINHERITANCE, under Article 919 of the Civil Code.
LAHOM vs. SIBULO
- Here the ADOPTION is granted under the OLD LAW
- But the RESCISSION was made after the NEW LAW
took effect.
Can you still grant the ADOPTER the RIGHT TO RESCIND?
Should the RESCISSION be GRANTED?
- The SC said NO MORE
- After the effectivity of RA 8552 the action to revoke
the decree of adoption granted in 1975 can no longer
be prompted because the new law abrogated and
repealed the right of the adopter under the Civil Code
and the Family Code to rescind the decree of
adoption.
With the advent of the new law, the right of the adopter to
rescind has already been abrogated, therefore they can no
longer ask for the rescission or the ADOPTER can no longer
petition for the rescission of the adoption.
Supposing the ADOPTEE must to rescind what is the formality?
- Petition has to be VERIFIED
- With the assistance of the DSWD, GUARDIAN or
COUNSEL for minor or the incapacitated adoptee.
WHERE TO FILE?
- FAMILY COURT
o In the place where the ADOPTEE RESIDE
So pag-adoption  FC where the adopter resides.
Pag-rescission  FC where the adoptee resides.
IS THERE AN INSTANCE NA MAGKAHIWALAY PALA OR
MAGKAIBA?
YES, kung naglayas pala si adoptee kasi hindi n niya
makayanan ang abuses ng kanyang adopter. Pwede mong i-
file ang rescission in the Family Court of the place where heS
resides.
WHEN DO YOU FILE IT?
- within 5 years
- AFTER REACHING THE AGE OF MAJORITY for minor
adoptee
- AFTER RECOVERY FOR INCOMPETENCY for
incompetent adoptee
After the receipt of the petition for rescission:
ORDER TO ANSWER
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
- Within 15 DAYS
- The order shall be given or served on the adverse
party either personally or by registered mail
depending on the discretion of the court
There is no specific mention of a hearing, only an order to
answer. He court on its discretion can hold a hearing in order
to determine the allegations in the petitions.
JUDGMENT
- If the allegations are proven to be true, then the
court can render judgment rescinding the adoption.
WHAT HAPPENS IF THERE IS RESCISSION ON ADOPTION?
- The ADOPTEE if still a minor or incapacitated will be
restored to the parental authority of the biological
parent, if known, or
- the legal custody of the DSWD –
- there will be an extinguishment of the reciprocal
rights and obligations of the adopter and the adoptee
- There were also be a reversion of successional rights
as of the date of judgment of judicial rescission.
Vested rights acquired prior to judicial rescission shall
be respected.
- There will be reversion of the adoptee to use the
name stated in his original birth or foundling
certificate.
- Cancellation by the Civil Registrar of the new birth
certificate of the adoptee and reinstate his original
birth or foundling certificate.
So take note earlier the original birth record was merely
annotated and sealed and kept in the safe place. So kapag
merong rescission what happened is that the new birth record
will be cancelled and there will be a revival of the old birth
record that was sealed and kept in a safe place. i-revive yun
and i-a-annotate doon yung rescission of the adoption.
SERVICE OF JUDGMENT
And in order for the civil registrar to do that dapat siya
mabigyan ng kopya ng decree of rescission, so dapat may
service of the judgement on the Civil Registrar.
INTERCOUNTRY ADOPTION
PARTICULARLY GOVERNED BY:
SPECIAL RULES (AM 02-06-02-SC)
Section 26. Applicability. – The following sections apply to
inter-country adoption of Filipino children by foreign nationals
and Filipino citizens permanently residing abroad.
Section 27. Objectives. – The State shall:
a) consider inter-country adoption as an alternative
means of child care, if the child cannot be placed in a
foster or an adoptive family or cannot, in any suitable
manner, be cared for in the Philippines;
b) ensure that the child subject of inter-country
adoption enjoys the same protection accorded to
children in domestic adoption; and
c) take all measures to ensure that the placement
arising therefrom does not result in improper financial
gain for those involved.
Section 28. Where to File Petition. – A verified petition to
adopt a Filipino child may be filed by a foreign national or
Filipino citizen permanently residing abroad with the Family
Court having jurisdiction over the place where the child resides
or may be found.
It may be filed directly with the Inter-Country Adoption Board.
Section 29. Who may be adopted. – Only a child legally
available for domestic adoption may be the subject of inter-
country adoption.
Section 30. Contents of Petition. – The petitioner must
allege:
a) his age and the age of the child to be adopted,
showing that he is at least twenty-seven (27) years of
age and at least sixteen (16) years older than the
child to be adopted at the time of application, unless
the petitioner is the parent by nature of the child to
be adopted or the spouse of such parent, in which
case the age difference does not apply;
b) if married, the name of the spouse who must be
joined as co-petitioner except when the adoptee is a
legitimate child of his spouse;
c) that he has the capacity to act and assume all
rights and responsibilities of parental authority under
his national laws, and has undergone the appropriate
counseling from an accredited counselor in his
country;
d) that he has not been convicted of a crime involving
moral turpitude;
e) that he is eligible to adopt under his national law;
f) that he can provide the proper care and support
and instill the necessary moral values and example to
all his children, including the child to be adopted;
g) that he agrees to uphold the basic rights of the
child, as embodied under Philippine laws and the U.
N. Convention on the Rights of the Child, and to abide
by the rules and regulations issued to implement the
provisions of Republic Act No. 8043;
h) that he comes from a country with which the
Philippines has diplomatic relations and whose
government maintains a similarly authorized and
accredited agency and that adoption of a Filipino child
is allowed under his national laws; and
i) that he possesses all the qualifications and none of
the disqualifications provided in this Rule, in Republic
Act No. 8043 and in all other applicable Philippine
laws.
Section 31. Annexes. - The petition for adoption shall contain
the following annexes written and officially translated in
English:
a) Birth certificate of petitioner;
b) Marriage contract, if married, and, if applicable, the
divorce decree, or judgment dissolving the marriage;
c) Sworn statement of consent of petitioner’s
biological or adopted children above ten (10) years of
age;
d) Physical, medical and psychological evaluation of
the petitioner certified by a duly licensed physician
and psychologist;
e) Income tax returns or any authentic document
showing the current financial capability of the
petitioner;
f) Police clearance of petitioner issued within six (6)
months before the filing of the petitioner;
g) Character reference from the local church/minister,
the petitioner’s employer and a member of the
immediate community who have known the petitioner
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

for at least five (5) years;
h) Full body postcard-size pictures of the petitioner
and his immediate family taken at least six (6)
months before the filing of the petition.
Section 32. Duty of Court. – The court, after finding that the
petition is sufficient in form and substance and a proper case
for inter-country adoption, shall immediately transmit the
petition to the Inter-Country Adoption Board for appropriate
action.
WHEN DOES IT APPLY?
IT IS APPLIED WHEN:
SUBJECT:
- FILIPINO CHILDREN
ADOPTERS:
- ALIENS (FOREIGN NATIONALS)
- FILIPINO PERMANENTLY RESIDING ABROAD
So always the subject is Filipino Children but the adopters can
either be Aliens or Filipino permanently residing abroad
FORM
- File a VERIFIED petition in court
- You have to allege that the FILIPINO CHILD is
LEGALLY AVAILABLE FOR DOMESTIC ADOPTION – so
the same qualifications
- And the adopters here like we said may either be
Foreign Nationals or Filipino permanently residing
abroad
VENUE
- FAMILY COURT
o Where the ADOPTEE resides or may be
found
So take note hindi sa place of the adopter. Why? Eh non-
residents sila, foreigner sila. Saan na family court? So it is no
longer the adopters residence ang reckoning point of the
venue but the ADOPTEES RESIDENCE, similar to the rescission
of adoption of the adoptee.
- Another place where you can file is with the
INTERCOUNTRY ADOPTION BOARD.
CONTENTS OF PETITION
Rule: There is an AGE REQUIREMENT here at the time of
the application
- The petitioner (Adopter): must be at least 27 years
old
- Adoptee: must be at least 16 years younger
Exceptions: (to the 16 years minimum requirement of
the adoptee)
1. When the petitioner is the parent of the child or
2. the spouse of such parent
o you also have to allege the civil status of
such adopter
o if he is married then there must be joint
adoption with the spouse
 except if the adoptee is
legitimate child of the spouse
So if you notice there are additional requirements in the
allegations of the petitions if you are applying for intercountry
adoption.
- that he has the capacity to act and assume all rights
and responsibilities of parental authority under his
national laws, and has undergone the appropriate
counseling from an accredited counselor in his
country;
- that he has not been convicted of a crime involving
moral turpitude;
- that he is eligible to adopt under his national law;
- that he can provide the proper care and support and
instill the necessary moral values and example to all
his children, including the child to be adopted;
- that he agrees to uphold the basic rights of the child,
as embodied under Philippine laws and the U. N.
Convention on the Rights of the Child, and to abide
by the rules and regulations issued to implement the
provisions of Republic Act No. 8043;
that he comes from a country with which the
Philippines has diplomatic relations and whose
government maintains a similarly authorized and
accredited agency and that adoption of a Filipino child
is allowed under his national laws; and
- that he possesses all the qualifications and none of
the disqualifications provided in this Rule, in Republic
Act No. 8043 and in all other applicable Philippine
laws.
Take note bakit ang daming REQUIREMENTS?
- Precisely because the adopters are foreigners and are
permanently living abroad.
- So once the adoption is granted the child will be
taken out of Philippine Jurisdiction.
- With more reasons mas STRINGENTang
REQUIREMENTS that must be complied with by the
adopters
- The very reason for that is when the child is taken out
of the jurisdiction of the Philippines, wala na tayong
control kung anong mangyayari sa bata and we have
the LAW ON ANTI-HUMAN TRAFFICKING.
- We are trying to ensure that the child to be adopted
will not be a victim of human trafficking because one
of the vulnerable victim of human trafficking would be
minor children. So we will ensure that that will not
happen to the adopted child
- Kaya ang dami daming requirement na dapat i-
comply ng adoptees compared to domestic adoption
ANNEXES TO THE PETITION
- Birth certificate of petitioner; - to ascertain his
identity and origin , sino ang nanay at tatay niya ang
history ng kanyang pagkatao
- Marriage contract, if married, and, if applicable, the
divorce decree, or judgment dissolving the marriage;
- Sworn statement of consent of petitioner’s biological
or adopted children above ten (10) years of age;
- Physical, medical and psychological evaluation of the
petitioner certified by a duly licensed physician and
the psychologist; take note pati psychologist just to na
hindi siya psychologically unfit yung magiging adopter

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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

- Income tax returns or any authentic document

showing the current financial capability of the
petitioner;
- Police clearance of petitioner issued within six (6)
months before the filing of the petitioner;
- Character reference from the local church/minister,
the petitioner’s employer and a member of the
immediate community who have known the petitioner
for at least five (5) years;
- Full body postcard-size pictures of the petitioner and
his immediate family taken at least six (6) months
before the filing of the petition. – so current photos
ng petitioner and his families (size 5R) – what is the
reason? So that kilala, may mukha na naka attach sa
pangalan ng petitioner
So all these must be submitted together with your petition.
IF YOU FILE IN COURT, WHAT WILL HAPPEN?
DUTY OF THE COURT
- The court will determine if it is sufficient, if you have
complied with all the documentary requirements
including the attachments after which a favorable
assessment of the court.
- What will the court do?
- The court will simply forward transmit the petition to
the Inter-Country Adoption Board for appropriate
action.

28
 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
RULE ON COMMITMENT OF CHILDREN
A.M. NO. 02-1-19-SC
Section 1. Objective. - The objective of this Rule is to
ensure that every effort is exerted to promote the child's
welfare and enhance his opportunities for a useful and happy
life; Toward this end, this Rule seeks to protect the child from
all forms of neglect, abuse, cruelty, exploitation and other
conditions prejudicial to his development.
Section 2. Interpretation. - The best interests of the child
shall be the paramount consider¬ation in all actions
concerning him, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities
and legislative bodies consistent with the United Nations
Convention on the Rights of the Child,
Section 3. Definition of Terms. -
(a) "Child" is a person below eighteen years of age.
(b) "Department" refers to the Department of Social Welfare
and Development,
(c) "Dependent child" is one who is without a parent,
guardian or custodian, or one whose parents, guardian or
other custodian for good cause desires to be relieved of his
care and custody, and is dependent upon the public for
support.
(d) "Abandoned child" is one who has no proper parental
care or guardianship, or whose parents or guardian has
deserted him for a period of at least six (5) continuous
months.
(e) "Neglected child" is one whose basic needs have been
deliberately unattended to or inadequately attended to,
physically or emotionally, by his parents or guardian.
(f) "Physical neglect" occurs when the child is malnourished,
ill-clad and without proper shelter.
(g) "Emotional neglect" occurs when a child is raped,
seduced, mal-treated, exploited, overworked or made to
work under conditions not conducive to good health; made
to beg in the streets or public places, or when placed in
moral danger, or exposed to drugs, alcohol, gambling,
Section 4. –
prostitution and other vices.
(h) "Disabled child" includes mentally retarded, physically
handicapped, emotionally disturbed and mentally ill
children, children with cerebral palsy and those with similar
afflictions.
(i) "Mentally retarded child" is one who is (1) socially
incompetent, that is, socially inadequate, occupational^
incompetent and unable to manage his own affairs; (2)
mentally subnormal; (3) intellectually retarded from birth or
early age; (4) retarded at maturity; (5) mentally deficient as
a result of constitutional origin through heredity or diseases
or (6) essentially incurable.
(j) "Physically handicapped child" is one who is crippled,
deaf-mute, blind, or otherwise suffers from a defect which
restricts his means of action or communi¬cation with
others.
(k) "Emotionally disturbed child" is one who, although not
afflicted with insanity or mental defect, is unable to
maintain normal social relations with others and the
community in general due to emotional problems or
complexes.
(I) "Mentally ill child" is one with any behavioral disorder,
whether functional or organic, which is of such a degree of
severity as to require professional help or hospitalization.
(m) "Commitment" or "surrender of a child" is the legal act
of entrusting a child to the care of the Department or any
duly licensed child- placement or child-caring agency or
individual by the court, parent or guardian or any interested
party.
(n) "Involuntarily committed child" is one whose parents
have been permanently and judicially deprived of parental
authority due to abandonment; substantial, continuous, or
repeated neglect; abuse; or incompetence to discharge
parental responsibili¬ties in accordance with Section 4
herein.
(o) "Voluntarily committed child" is one whose parents
knowingly and willingly relinquished parental authority to
the Department or any duly licensed child-placement or
child-caring agency or individual in accordance with Section
3 herein.
(p) "Child-placing or child-placement agency" refers to a
private non-profit or charitable institution or government
agency duly licensed and accredited by (he Department to
provide comprehensive child welfare services, including but
not limited to, receiving applications for adoption or foster
care, evaluating the prospective adoptive or foster parents
and preparing the home study report.
(q) "Child-caring agency" refers to a private non-profit or
charitable institution or government agency duly licensed
and accredited by the Department that provides twenty-four
hour residential care services for abandoned, orphaned,
neglected, involuntarily or voluntarily committed children.
(r) "Guardian ad litem is a person appointed by the court
where the case is pending for a child sought to be
committed to protect his best interests.
(s) "Case Study Report" is a written report of the result of
an investigation conducted by a social worker as to the
socio-cultural, economic and legal status or condition of the
child sought to be committed. It shall include among others
his developmental age, educational attainment, family and
social relationships, the quality of his peer group, his
family's strengths and weaknesses and parental control over
him. The report is submitted to the Family Court to aid it in
its evaluation of whether the child ought to be committed to
the care of the Department or any duly licensed child-
placement or child-caring agency or individual.
(a) Who may file. - The Secretary of the Department or his
authorized representative or any duly licensed child-
placement or child-caring agency having knowledge of a
child who appears to be dependent, abandoned or
neglected, may file a verified petition for involuntary
commitment of said child to the care of any duly licensed
child-placement or child-caring agency or individual.
(b) Venue. - The petition shall be filed with the Family Court
of the province or city in which the parent or guardian
resides or where the child is found.
(c) Contents of Verified Petition. - The petition must state:
The names of the parents or guardian and their place of
residence. If the child's parents are unknown, petitioner
must allege that diligent efforts have been exerted to
locate them. It said parents are deceased, petitioner shall
attach a certified true copy of their death certificate;
The facts showing that the child is dependent,
abandoned, or neglected;
The facts showing who has custody of the child at the
time of the filing of the petition; and
The name, address and written consent of the
Department or duly licensed child-placement or child-
caring agency or individual to whose care the
commitment of the child is sought to be entrusted.
29
 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

(d) Summons; Court to Set Time for Hearing. - If the court the Department.
is satisfied that the petition is sufficient in form and
(k) Visitation or Inspection. - Any duly licensed child-
substance, it snail direct the clerk of court to immediately
placement or child-caring agency or individual to whom a
issue summons which shall be served together with a copy
child has been committed by the court shall be subject to
of the petition and a notice of hearing, upon the parents or
visitation or inspection by a representative of the court or of
guardian of the child and the office of the public prosecutor
the Department, as the case may be or of both, to
not less than five (5) days before the date of the hearing.
determine whether the welfare and interests of the child are
The office of the public prosecutor shall be directed to
being served,
immediately transmit the summons to the prosecutor
assigned to the Family Court concerned. (l) Report of Person or Institution. - Any duly licensed child-
placement or child-caring agency or individual to whom a
If it appears from the petition that both parents of the child
child has been committed by judicial order may at any time
are dead or that neither parent can be found in the province
be required by the court to submit a report, containing all
or city where the court is located and the child has no
necessary information for determining whether the welfare
guardian residing therein, summons may not be issued and
of the child is being served.
the court shall thereupon appoint a guardian ad litem
pursuant to Sub-section (f) below and proceed with the (m) Temporary Custody of Child. - The duly licensed child-
hearing of the case with due notice to the provincial or city placement or child-caring agency or individual to whom a
prosecutor. child has been committed may file a verified motion with
the court which granted the petition for involuntary
(e) Social Worker. - After the court sets the petition for
commitment of a child to place him in the care of any
hearing in accordance with Sub-section (d) above, it shall
suitable person, upon the latter's request, for a period not
direct the social worker to submit, before the hearing, a
exceeding one month at a time. The court may order the
case study report of the child to aid it in evaluating whether
social worker to submit a case study report to aid it in
said child should be committed to the care of the
evaluating whether such temporary custody shall be for the
Department or any duly licensed child-placement or child-
best interests of the child. The period of temporary custody
caring agency or individual. The report shall bear the
of the child may be extended by the court for a period not
signature of the social worker on every page.
exceeding one month at a time upon motion of the duly
(f) Guardian Ad Litem of Child. - If neither of the parents licensed child-placement or child-caring agency or individual
nor the guardian of the child can be located or does not to which the child has been committed.
appear in court despite due notice, or if the court finds
The court, motu proprio, or upon request of the child
them incompetent to protect the best interests of the child,
assisted by his guardian ad litem, or at the instance of the
it shall be the duty of the court to appoint a suitable person
agency or person to whom the child was committed, after
as guardian ad litem to represent the child. In making the
due notice and hearing, shall discontinue the temporary
appointment, the court shall consider the background of the
custody of the child if it appears that he is not being given
guardian ad litem and his familiarity with the judicial
proper care.
process, social service programs and child development. A
member of the Philippine Bar may be appointed guardian ad After one month from the date temporary custody of the
litem. child was given to another suitable person, the agency or
individual shall submit to the court a verified report on
(g) Child's Right to Counsel - The court, upon request of the
whether the temporary custody of the child has promoted
child capable of forming his own views or upon request of
his best interests.
his guardian ad litem, shall appoint a lawyer to represent
him in the proceedings. (n) Change of Custody. - If the child is committed to the
Department, it shall have the authority to change the
(h) Duty of Public Prosecutor. - The provincial or "city
custody o! a child it had placed with any duly licensed child-
prosecutor shall appear for the State and ascertain if there
placement or child-caring agency or individual if it appears
has been due notice to all parties concerned and that there
that such change is for the best interests of the child. The
is justification for the declaration of dependency,
Department shall notify the court of any change in custody
abandonment or neglect.
of the child,
(i) Hearing. - The court shall direct the person or agency
When conflicting interests arise among child-placement or
which has custody of the child to bring the latter to the
child-caring agencies, the court which granted the
court on the date of the hearing of the petition and shall
involuntary commitment of the child, upon motion of the
ascertain the facts and determine whether the child is
Department or any of the agencies concerned, shall order
dependent, abandoned, or neglected, and if so, the-cause
the change of commitment of the child.
and circumstances of such condition.
(o) Removal of Custody. - A motion to remove custody of a
(j) Judgment. - If, after the hearing, the court shall find the
child may be filed by an authorized representative of the
child to be dependent, abandoned, or neglected, it shall
Department with knowledge of the facts against a child-
render judgment committing him to the care and custody of
placement or child-caring agency or individual to whose
the Department or any duly licensed child-placement or
custody a child has been committed by the court on the
child-caring agency or individual until he reaches the age of
ground of neglect of such child as defined in Section 3 (e)
eighteen (18), The judgment shall likewise make proper
of this Rule. The court shall set the motion for hearing with
provisions for the custody of the property or money
notice to the public prosecutor and the court-designated
belonging to the committed child.
social worker. If the court finds after hearing that the
If the child is committed to the Department, it shall notify allegations of the motion have been established and that it
the court within thirty (30) days from the order of is for the best interests and welfare of the child, the court
commitment, the name and address of the duly licensed shall issue an order removing him from the custody of the
and accredited child-placement or child-caring agency or person or agency, as the case may be, and committing him
individual where the child shall be placed. to the custody of another duly licensed child-placement or
child-caring agency or individual.
However, if the court finds that the abandonment or neglect
of the child may be remedied, the child may be allowed to In the same proceeding, the court may suspend or revoke
stay in his own home under the care and control of his the license of the agency or individual found guilty of such
parents or guardian, subject to supervision and direction of neglect depending upon the gravity or frequency of the
30
 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
offense.
(p) Restoration of Parental Authority After Involuntary
Commitment. -
(i) Who may file; Ground. - The parents or guardian of a
child committed to the care of a person, agency or
institution by judicial order may file a verified motion for
the restoration of his rights over the child with the court
which granted the involuntary commit¬ment on the
ground that he is now able to take proper care and
custody of said child, provided, however, that the child
has not yet been adopted.
(ii) Notice of Hearing. - The court shall fix the time and
date for the hearing of the motion, which shall not be
earlier than thirty (30) days nor later than sixty (60) days
from the date of the filing of said motion and cause
notice of the hearing to be sent to the person, agency or
institution to which the child has been committed, the
public prosecutor and the court-designated social worker,
at least five (5) days before the date of hearing.
(iii) Hearing. - At the hearing, any person may be
allowed to intervene at the discretion of the court to
contest the right to the relief demanded. Witnesses may
be called and examined by the parties or by the court
motu proprio.
(iv) Resolution. - If it is found that the cause for the
commitment of the child no longer exists and that the
movant is already able to take proper care and custody
of the child, the court, after taking into consideration the
best interests and the welfare of the child, shall issue a
resolution terminating the parental authority of the
person, agency or institution to whom the child was
committed by judicial order and restoring parental
authority to the movant,
q) Jurisdiction for Prosecution of Punishable Acts. - The Family
Court which granted the involuntary commitment shall have
jurisdiction over the prosecution of a child who left without
prior permission from the person or institution to which he has
been judicially committed or the person under whose custody
he has been judicially committed in accordance with Sub-
section (m) of Section 4 of this Rule. It shall likewise have
jurisdiction over the person who induced the child to leave
such person or institution, except in case of actual or imminent
grave physical or moral danger to the child. The Family Court
which granted the involuntary commitment shall also have
jurisdiction over the prosecution of parents or guardians of the
child who may be held liable under Articles 59 and 60 of P.D.
No. 603 and Sections 9, 10 and 31 of R.A. No. 7610.
Section 5. Voluntary Commitment of a Child to an
Institution or Individual. - The parent or guardian of a
dependent, abandoned or neglected child may voluntarily
commit him to the Department or any duly licensed child-
placement or child-caring agency or individual subject to the
rules of the Department. However, no child shall be committed
unless he is surrendered in writing by his parents or guardian
stating such voluntary commitment and specifically naming the
office, agency, or individual to whose custody the child is to be
committed. Such written instrument should be notarized and
signed in the presence of an authorized representative of the
Department after counseling and other services have been
made available to encourage the child's parents to keep the
child.
(a) Petition for Removal of Custody. -
(i) Who may file; Ground. - The parents or guardian who
voluntarily committed the child, or in their absence or
failure, any person with knowledge of the facts, may file
a verified petition to remove custody of the child against
the child-placement or child-caring agency or individual
to whose custody the child has been voluntarily
committed on the ground of neglect of such child as
defined in Section 3 (e) of this Rule. A child may also be
removed from the custody of the child-placement or
child-caring agency or individual on the ground that the
voluntary commitment of the child was unjustified.
(ii) Venue. - The petition shall be filed with the Family
Court of the province or city where the child-placement
or child-caring agency to which the child has been
voluntarily committed is located or where the child may
be found.
Contents of Verified Petition - The petition must state:
The name and address of the child-placement or child-
caring agency or individual to whose custody the child
has been voluntarily committed;
The facts showing that the child has been neglected by
the agency or in cases where the voluntary commitment
was unjustified, that the parents of the child are actually
capable of taking care and custody of the child;
The name, address and written consent of the duly
licensed child-placement or child-caring agency or
individual to whose care the child may be transferred.
The facts showing that petitioner has exhausted the
administrative remedies available to him,
(iv) Notice of Hearing. - If the petition is sufficient in
form and substance, the court shall set the same for
hearing with notice to the Department, the public
prosecutor, the court-designated social worker, the
agency or individual to whom the child has been
committed and in appropriate cases, the parents of the
child.
(v) Judgment. - If after hearing the court finds that the
allegations of the petition have been established and that
it is for the best interests and welfare of the child, it shall
issue an order removing the child from the custody of the
person or agency concerned, and committing him to the
custody of another duly licensed child-placement or child-
caring agency or individual.
The court, in the same proceeding may, after hearing the
comment or recommendation of the Department,
suspend or revoke the license of the agency or individual
found guilty of such neglect depending upon the gravity
or frequency of the offense.
(b) Restoration of Parental Authority After Voluntary
Commitment. - The restoration of rights of the parent or
guardian over the child who has been voluntarily committed
shall be governed by the rules of the Department, provided,
however, that the petition for restoration is filed within six
(6) months from the date of voluntary commitment. In case
the Department refuses to grant legal custody and parental
authority to the parent or guardian over the child who has
been voluntarily committed to an agency or individual, the
parent or guardian may file a petition in court for
restoration of parental authority in accordance with Section
4 (p) of this Rule.
(c) Jurisdiction for Prosecution of Punishable Acts. - The
Family Court of the place where the child may be found or
where the duly licensed child-placement or child-caring
agency or individual is located shall have jurisdiction over
the prosecution of a child who left without prior permission
from the person or institution to which he has been
voluntarily committed. It shall likewise have jurisdiction over
the person who induced the child to leave such person or
institution, except in case of grave actual or imminent
physical or moral danger, to the child. The same Family
Court shall also have jurisdiction over the prosecution of
parents or guardians of the child who may be held liable
under Articles 59 and 60 of P.O. No, 603 and Sections 9, 10
and 31 of R.A. No. 7610.
31
 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Section 6. Petition for Commitment of a Disabled
Child. -
(a) Who may file. - Where a child appears to be mentally
retarded physically handicapped, emotionally disturbed,
mentally ill, with cerebral palsy or with similar afflictions and
needs institutional care but his parents or guardians are
opposed thereto, the Department, or any duly licensed
child-placement or child-caring agency or individual may file
a verified petition for commitment of the said child to any
reputable institution providing care, training and
rehabilitation for disabled children.
The parents or guardian of the child may file a similar
petition in case no immediate placement can be arranged
for the disabled child when his welfare and interests are at
stake,
(b) Venue. - The petition for commitment of a disabled child
shall be filed with the Family Court of the place where the
parent or guardian resides or where the child is found.
(c) Contents of Verified Petition. - The petition for
commitment must stale the following:
(1) The facts showing that the child appears to be
mentally retarded, physically handicapped, emotionally
disturbed, mentally ill, with cerebral 'palsy or with similar
afflictions and needs institutional care;
(2) The name of the parents and their residence, if
known, or if the child has no living parent, the name and
residence of the guardian, if any; and
(3) The fact that the parents or guardian or any duty
licensed disabled child-placement or child-caring agency,
as the case may be, has opposed the commitment of
such child;
(4) The name and written conformity of the institution
where the child is to be committed.
(5) An estimate of the costs and other expenses of
maintaining the child in the institution.
The verified petition shall be sufficient if based upon the
personal knowledge of the petitioner.
(d) Order of Hearing; Notice. - If the petition filed is
sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix the date of the
hearing thereof, and a copy of such order shall be served on
the child alleged to be mentally retarded, physically
handicapped, emotionally disturbed, mentally ill, with
cerebral palsy or with similar afflictions and on the person
having charge of him or any of his relatives residing in the
province or city as the court may deem proper.
The order shall also direct the sheriff or any other officer of
the court to produce, if necessary, the alleged disabled child
on the date of the hearing.
(e) Hearing and Judgment. - If the court finds that the
allegations of the petition have been established and that
institutional care of the child is for his best interests or the
public welfare and that his parents, or guardian or relatives
are unable for any reason whatsoever to take proper care of
him, the court shall order his commitment to the proper
institution for disabled children. The court shall likewise
make proper provisions for the custody of the property or
money belonging to the committed child.
The expense of maintaining a disabled child in the
institution to which he has been committed shall be borne
primarily by the parents or guardian and secondarily, by
such disabled child, if he has property of his own.
In all cases where the expenses for the maintenance of the
disabled child cannot be paid in accordance with the
immediately preceding paragraph, the Department shall
bear the expenses, or such part thereof as may remain
unpaid.
The court shall furnish the institution to which the child has
been committed with a copy of its judgment, together with
ail the reports and other data pertinent to the case.
(f) Discharge of Judicially Committed Disabled Child. - Upon
motion of the parent, guardian or institution to which the
child has been judicially committed under this Rule, the
court, after hearing, shall order the discharge of such child
if it is established and certified by the Department that:
(1) He is no longer a danger to himself and the
community;
(2) He has been sufficiently rehabilitated from his
physical handicap or if of working age, is already fit to
engage in gainful occupation; or
(3) He has been sufficiently relieved of his psychological,
mental and emotional problems and is ready to assume
normal social relations,
Section 7. Effectivity. - This rule shall take effect on April
15, 2002 after its publication in a newspaper of general
circulation not later than March 15, 2002.
I think you have taken this up, the same definition of children,
the same classifications of children.
The Kinds of commitment we already discussed that in part
- VOLUNTARY COMMITMENT
- INVOLUNTARY COMMITMENT
Additional
- COMMITMENT OF A DISABLED CHILD
Take note that in a COMMITMENT OF A DISABLED CHILD the
only way that you can avail of this remedy is when THE
PARENTS ARE OPPOSED TO THE COMMITMENT OF THE
DISABLED CHILD.
- Kasi pag hndi sila opposed no need for you to avail of
this
INVOLUNTARY COMMITMENT
WHO MAY FILE?
- The Secretary of the Department or his authorized
representative or
- any duly licensed child-placement or child-caring
agency having knowledge of a child who appears to
be dependent, abandoned or neglected,
- may file a verified petition for involuntary
commitment of said child to the care of any duly
licensed child-placement or child-caring agency or
individual.
WHERE TO FILE?
- Family Court –so anything involving children
o The place of Residence of the:
 PARENT OR GUARDIAN
 CHILD
FORM
- Verified
- You have to state the ground for involuntary
commitment
CONTENTS
32
 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
- The petition must state:
o The names of the parents or guardian and
their place of residence. If the child's parents
are unknown, petitioner must allege that
diligent efforts have been exerted to locate
them. It said parents are deceased,
petitioner shall attach a certified true copy of
their death certificate;
o The facts showing that the child is
dependent, abandoned, or neglected;
o The facts showing who has custody of the
child at the time of the filing of the petition;
and
o The name, address and written consent of
the Department or duly licensed child-
placement or child-caring agency or
individual to whose care the commitment of
the child is sought to be entrusted.
CHILD CARING AGENCY
- refers to a private non-profit or charitable institution
or government agency duly licensed and accredited
by the Department that provides twenty-four hour
residential care services for abandoned, orphaned,
neglected, involuntarily or voluntarily committed
children.
CHILD PLACING AGENCY
- refers to a private non-profit or charitable institution
or government agency duly licensed and accredited
by (he Department to provide comprehensive child
welfare services, including but not limited to,
receiving applications for adoption or foster care,
evaluating the prospective adoptive or foster parents
and preparing the home study report.
DUTY OF CHILD PLACING AGENCY
- the child-placing or child-caring agency will submit
report to the court containing information to
determine the welfare of the child and will also allow
visitation or inspection
So you also have a separate SPECIAL RULE
TEMPORARY CUSTODY OF CHILD
AM 02-A-1-SC
(m) Temporary Custody of Child. - The duly licensed
child-placement or child-caring agency or individual to
whom a child has been committed may file a verified motion
with the court which granted the petition for involuntary
commitment of a child to place him in the care of any
suitable person, upon the latter's request, for a period not
exceeding one month at a time. The court may order the
social worker to submit a case study report to aid it in
evaluating whether such temporary custody shall be for the
best interests of the child. The period of temporary custody
of the child may be extended by the court for a period not
exceeding one month at a time upon motion of the duly
licensed child-placement or child-caring agency or individual
to which the child has been committed.
The court, motu proprio, or upon request of the child
assisted by his guardian ad litem, or at the instance of the
agency or person to whom the child was committed, after
due notice and hearing, shall discontinue the temporary
custody of the child if it appears that he is not being given
proper care.
THIS REQUIRES FILING OF PETITON WITH:
- THE FAMILY COURT
o the court which granted the petition for
involuntary commitment of a child to place
him in the care of any suitable person
CHANGE OF CUSTODY OF CHILD
- BEST INTEREST OF THE CHILD
- Take note that the person that will EFFECT the
change of name is the DSWD
VOLUNTARY COMMITMENT
- PARENT
- GUARDIAN
WHO MAY BE COMMITTED?
- dependent, abandoned or neglected child
In voluntary commitment the parents will simply go to the
DSWD
- Sign a WRITTEN SURRENDER
- A written instrument to be NOTARIZED
- This can only be done by PRIOR COUNSELLING OF
THE PARENTS
Once the child have been committed, the child may also be
removed or taken out from the commitment.
REMOVAL OF CUSTODY
Grounds:
- Neglect
- Unjustified voluntary commitment of the child
This time you go to COURT
Sa pag-surrender or sa pag-commit niyo no need to go to
court, pero sa paglabas ng bata punta ka sa court. You have to
petition for relase or removal of custody by the DSWD.
WHO MAY FILE?
- Parents
- Guardian
- Or any person with knowledge of the facts
So magkakaroroon ng notice of hearing, hearing and
judgment.
The following will be NOTIFIED:
- Department,
- the public prosecutor,
- the court-designated social worker,
- the agency or individual to whom the child has been
committed and
- in appropriate cases, the parents of the child.
JUDGMENT
- If after hearing the court finds that the allegations of
the petition have been established and that it is for
the best interests and welfare of the child, it shall
issue an order removing the child from the custody of
the person or agency concerned, and committing him
to the custody of another duly licensed child-
placement or child-caring agency or individual.
The court, in the same proceeding may, after hearing the
comment or recommendation of the Department,
suspend or revoke the license of the agency or individual
found guilty of such neglect depending upon the gravity
or frequency of the offense.
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
After the after the child has been taken of commitment there
will be restoration of parental authority.
RESTORATION OF PARENTAL AUTHORITY
(b) Restoration of Parental Authority After Voluntary
Commitment. - The restoration of rights of the parent or
guardian over the child who has been voluntarily committed
shall be governed by the rules of the Department, provided,
however, that the petition for restoration is filed within six
(6) months from the date of voluntary commitment. In case
the Department refuses to grant legal custody and parental
authority to the parent or guardian over the child who has
been voluntarily committed to an agency or individual, the
parent or guardian may file a petition in court for
restoration of parental authority in accordance with Section
4 (p) of this Rule.
Take note that even after you voluntarily committed your child
you can still regain your parental authority
- WITHIN 6 MONTHS FROM the date of VOLUNTARY
COMMITMENT
If there are punishable acts it will be under the jurisdiction of
the:
- FAMILY COURT
PETITION FOR COMMITMENT OF A DISABLED CHILD
WHO MAY FILE?
- Where a child appears to be mentally retarded
physically handicapped, emotionally disturbed,
mentally ill, with cerebral palsy or with similar
afflictions and needs institutional care but his parents
or guardians are opposed thereto,
- the Department, or
- any duly licensed child-placement or child-caring
agency or
- individual may file a verified petition for commitment
of the said child to any reputable institution providing
care, training and rehabilitation for disabled children.
- The parents or guardian of the child may file a similar
petition in case no immediate placement can be
arranged for the disabled child when his welfare and
interests are at stake,
WHERE TO FILE?
- The petition for commitment of a disabled child shall
be filed with the Family Court of the place where the
parent or guardian resides or where the child is
found.
CONTENTS OF VERIFIED PETITION
The petition for commitment must stale the following:
(1) The facts showing that the child appears to be mentally
retarded, physically handicapped, emotionally disturbed,
mentally ill, with cerebral 'palsy or with similar afflictions
and needs institutional care;
(2) The name of the parents and their residence, if known,
or if the child has no living parent, the name and residence
of the guardian, if any; and
(3) The fact that the parents or guardian or any duty
licensed disabled child-placement or child-caring agency, as
the case may be, has opposed the commitment of such
child;
(4) The name and written conformity of the institution
where the child is to be committed.
(5) An estimate of the costs and other expenses of
maintaining the child in the institution.
The verified petition shall be sufficient if based upon the
personal knowledge of the petitioner.
ORDER OF HEARING; NOTICE
- If the petition filed is sufficient in form and substance,
the court, by an order reciting the purpose of the
petition, shall fix the date of the hearing thereof, and a
copy of such order shall be served on the child alleged to
be mentally retarded, physically handicapped,
emotionally disturbed, mentally ill, with cerebral palsy or
with similar afflictions and on the person having charge
of him or any of his relatives residing in the province or
city as the court may deem proper.
- The order shall also direct the sheriff or any other officer
of the court to produce, if necessary, the alleged
disabled child on the date of the hearing.
HEARING AND JUDGMENT
- If the court finds that the allegations of the petition have
been established and that institutional care of the child is
for his best interests or the public welfare and that his
parents, or guardian or relatives are unable for any
reason whatsoever to take proper care of him, the court
shall order his commitment to the proper institution for
disabled children. The court shall likewise make proper
provisions for the custody of the property or money
belonging to the committed child.
- The expense of maintaining a disabled child in the
institution to which he has been committed shall be
borne primarily by the parents or guardian and
secondarily, by such disabled child, if he has property of
his own.
- In all cases where the expenses for the maintenance of
the disabled child cannot be paid in accordance with the
immediately preceding paragraph, the Department shall
bear the expenses, or such part thereof as may remain
unpaid.
- The court shall furnish the institution to which the child
has been committed with a copy of its judgment,
together with ail the reports and other data pertinent to
the case.
DISCHARGE OF JUDICIALLY COMMITTED DISABLED CHILD
- Upon motion of the parent, guardian or institution to
which the child has been judicially committed under this
Rule, the court, after hearing, shall order the discharge
of such child if it is established and certified by the
Department that:
(1) He is no longer a danger to himself and the community;
(2) He has been sufficiently rehabilitated from his physical
handicap or if of working age, is already fit to engage in
gainful occupation; or
(3) He has been sufficiently relieved of his psychological,
mental and emotional problems and is ready to assume
normal social relations,
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
HABEAS CORPUS
(RULE 102)
The literal translation of the term is “TO HAVE THE BODY”
IT IS TO INQUIRE INTO ALL MANNER OF INVOLUNTARY
RESTRAINT.
The point of inquiry here is INVOLUNTARY RESTRAINT, THE
DEPRIVATION OF LIBERTY.
This rule deals with the detention of the prisoner and stops the
authority by virtue of which it is made.
SECTION 1. To what habeas corpus extends. - Except as
otherwise expressly provided by law, the writ of habeas corpus
shall extend to all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person
entitled thereto.
EXTENT
- All cases of illegal confinement or detention
- When there is deprivation of liberty
- Withholding the rightful custody of the person from
the person entitled thereto
ILLEGAL CONFINEMENT/DETENTION
- When there is unlawful or illegal restraint of liberty
- Involuntary deprivation of freedom of action
- There is actual, effective restraint of liberty, not
merely nominal or moral
- Not limited to restraint in locomotion
- Any restraints which prucludes freedom of action is
sufficient
UNLAWFUL RESTRAINT
VILLAVICENCIO v LUKBAN
- Prostitutes (women) were forcibly taken from Manila
and brought to Davao.
- That was a classic example of habeas corpus, there
was deprivation of liberty
MONCUPA v ENRILE
- When there were restrictions attached to the
temporary release that limited the freedom of
movement
- Even if they were free from restraint or detention the
restrictions attached to their temporary release was
covered by habeas corpus because it unreasonably
restricted their freedom of movement.
WRIT WHEN PROPER?
- There is restraint of a person resulting to a
deprivation of constitutional right to liberty
- The court has no jurisdiction to impose the sentence
or
- when there is an excessive penalty then the excess is
considered void
- the release of the person can be obtained through the
writ of habeas corpus
When there is a violation of a constitutional right of the
accused , then there is loss of jurisdiction. So a person
confined can obtain release through a writ of habeas corpus.
WHO MAY GRANT THE WRIT?
SECTION 2. Who may grant the writ. - The writ of habeas
corpus may be granted by the Supreme Court, or any member
thereof, on any day and at any time, or by the Court of
Appeals or any member thereof in the instances authorized by
law, and if so granted it shall be enforceable anywhere in the
Philippines, and may be made returnable before the court or
any member thereof, or before a Court of First Instance, or
any judge thereof for hearing and decision on the merits. It
may also be granted by a Court of First Instance, or a judge
thereof, on any day and at any time, and returnable before
himself, enforceable only within his judicial district.
- SC or any member thereof
o Enforceable anywhere in the Philippines
- CA or any member thereof
o Enforceable anywhere in the Philippines
- RTC
o Enforceable only within the judicial district
RETURN OF WRIT
- The WRIT must be RETURNED
It is returnable to:
- SC
o can make the writ returnable to itself or CA
or RTC (subordinate court)
- CA
o can make the writ returnable to itself or
RTC
- RTC
o No choice but returnable before itself
o hindi niya pwede ipasa sa SC or CA maco-
contempt siya, kasi dadagdagan niya nag
trabaho ng higher court
WHAT IS THE RATIONALE BAKIT PWEDE I–DELEGATE? OR
BAKIT KAILANAGN I-RETURN ANG WRIT?
- The return of the writ means na kung kanino yan
made returnable to will mean that that COURT WILL
CONDUCT THE ENTIRE PROCEEDINGS of a HABEAS
COPRPUS PETITION. Siya ang mag-a-assume,
maghe-hear ng petition. It is very important na
malaman niyo kung kanino yan returnable to. RTC no
choice. Pag CA pwede siya or ipasa sa RTC. Pag SC
pwede siya or any member, or ipapasa niya sa CA or
RTC. That is crucial because whoever the writ made
returnable to will conduct the rest of the proceedings
of habeas corpus.
ORDA v CA: That the court will conduct the entire proceeding
WHO MAY FILE THE PETITION?
- Person deprived of liberty or anyone on his behalf
- Siya mismo na nadeprive ng liberty or any person on
his behalf
Take note that this “ANY PERSON ON HIS BEHALF”
- Someone who has an interest in the freedom of the
person whose liberty is restraint
- Or those who have authorization kapag may SPA siya
pwede
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
- Interested siya sa liberty of that person, it could be
asawa, anak, nanay, tatay, kapamilya
HOW ABOUT THE COMMON LAW SPOUSE?
- YES
VELASCO v CA
- Allows the common law spouse to file a petition on
behalf of the person restrained
HOW ABOUT GUARDIAN?
HERNANDEZ v SAN JUAN
- I think an aunt or a relative petition for guardianship
over Lulu and was granted
- The problem was “LULU” was adopted by her siblings,
kasi mayaman si Lulu maraming properties
- They wanted to have control over her, in-abduct siya.
- The Judicial guardian files a petition for writ of
habeas corpus to produce Lulu
- Is that allowed? Yes.
- The SC held that the writ of habeas corpus shall
extend to all cases of illegal confinement or detention
by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld
from the person entitled thereto.
- Respondent, as the judicial guardian of Lulu, was
duty-bound to care for and protect her ward. For her
to perform her obligation, respondent must have
custody of Lulu. Thus, she was entitled to a writ
of habeas corpus after she was unduly deprived of
the custody of her ward
So if you are a GENERAL GUARDIAN entrusted to the care and
custody of the person as well as the property of the ward you
have that right to have that ward on your custody. Kapag
kinidnap yan kapag tinakas yan pwede ka mag petition for
WRIT OF HABEAS CORPUS because you have the rightful
custody and that custody was unlawfully withheld from you.
Situation:
Now this is the reverse.
1. IN RE: PETITION FOR HABEAUS CORPUS OF
EUFEMIA RODRIGUEZ
o May acting guardian
o The so called ward here is a 94 year old
widow allegedly suffering from poor mental
health and deterioration of cognitive abilities
o Apparently no decree appointing the
guardian as the guardian
o No official guardianship proceeding was
instituted
o You have here an elderly, ulianin na,
pumapalya na ang memory –
o Is that an incompetent person? Not
necessarily, bigyan mo yan ng mathematical
computation and provding solution to
problem, hindi siya incompetent.
WHAT HAPPENS IF AN ELDERLY REMOVES HERSELF FROM
THE CUSTODY OF THE ONE WHO IS CARING FOR HER? CAN
THAT PERSON PETITION FOR A WRIT OF HABEAS CORPUS T
COMPEL THE SURRENDER OF A PERSON OF THIS ELDERLY AT
IBALIK SA KANYA?
- The SC said the issue is not whether the custody of
Eufemia is being rightfully withheld from petitioner
but whether Eufemia is being restrained of her liberty.
Significantly, although petitioner admits that he did
not have legal custody of Eufemia, he nonetheless
insists that respondents themselves have no right to
her custody. Thus, for him, the issue of legal custody
is irrelevant. What is important is Eufemia’s personal
freedom.
So if you were never appointed as legal or judicial guardian.
You have no right to custody over that person. So you cannot
ask for a writ of habeas corpus to compel the return of his or
her custody when he or she leaves your custody. So ang
personal freedom ng matanda ang titingnan.
However
2. LEGAL GUARDIAN – PARENTS over MINOR
CHILD
- In the case of a minor child, the parents or the
guardians kapag may na-appoint na guardian over
the minor children they have the custody
- Tinanggal mo ngayon ang custody ng bata from the
parents
CAN THE PARENTS FILE A PETITION FOR WRIT OF HABEAS
CORPUS?
- YES, the parents can file a petition for writ of habeas
corpus, because they have the legal and rightful
custody over the minor children
In SUMMARY
COMPARE:
a. MATANDA
- CANNOT JUST FILE writ of habeas corpus; matanda
siya eh, hindi siya minor child that the law places care
and custody walang ganyan eh.
- Just look if deprived with liberty, is there restraint of
liberty? If there is deprivation you can file but if none,
voluntarily sumama yung matanda wala kang
magagawa, not a case for habeas corpus, then
cannot file Writ of Habeas Corpus
b. BATA
- Parents CAN FILE Writ of Habeas Corpus
THE PROPER APPLICATION
SECTION 3. Requisites of application therefor. - Application
for the writ shall be by petition signed and verified either by
the party for whose relief it is intended, or by some person on
his behalf, and shall set forth:
(a) That the person in whose behalf the application is made is
imprisoned or restrained of his liberty;
(b) The officer or name of the person by whom he is so
imprisoned or restrained; or, if both are unknown or uncertain,
such officer or person may be described by an assumed
appellation, and the person who is served with the writ shall
be deemed the person intended;
(c) The place where he is so imprisoned or restrained, if
known;
(d) A copy of the commitment or cause of detention of such
person, if it can be procured without impairing the efficiency of
the remedy; or, if the imprisonment or restraint is without any
legal authority, such fact shall appear.
WHEN WRIT NOT ALLOWED?
SECTION 4. When writ not allowed or discharge authorized. -
If it appears that the person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a
court or judge or by virtue of a judgment or order of a court of
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall
not be allowed; or if the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor
shall anything in this rule be held to authorize the discharge of
a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful
judgment.
If it appears that the person alleged to be restrained of his
liberty
- is in the custody of an officer under process issued
by a court or judge having jurisdiction to issue the
same
- or by virtue of a judgment or order of a court of
record,
When you say COURT here it includes
- QUASI-JUDICIAL BODIES
- OR GOVERNMENTAL AGENCIES AUTHORIZE TO
ORDER CONFINEMENT
- BUREAU OF IMMIGRATION
When you say under LEGAL PROCESS OR ORDER of the
COURT includes
- QUASI JUDICAL BODIES such as the BUREAU OF
IMMIGRATION
WHEN WRIT NOT PROPER?
You have here RA 6975
- where police personnel under administrative cases
allows restrictive police custody
CAN YOU ASK FOR WRIT OF HABEAS CORPUS TO COMPEL
THE RELEASE OF THE PERSON PLACED UNDER RESTRICTIVE
POLICE CUSTODY?
AMPATUAN v MACARAIG
- The SC held NO.
- Given that PO1 Ampatuan has been placed under
restrictive custody, such constitutes a valid argument
for his continued detention. This Court has held that a
restrictive custody and monitoring of movements or
whereabouts of police officers under investigation by
their superiors is not a form of illegal detention or
restraint of liberty.
- Restrictive custody is, at best, nominal restraint which
is beyond the ambit of habeas corpus. It is neither
actual nor effective restraint that would call for the
grant of the remedy prayed for. It is a permissible
precautionary measure to assure the PNP authorities
that the police officers concerned are always
accounted for.
Administratice case lang ito not a criminal case, detained under
police custody you cannot ask for a writ of habeas corpus, kasi
allowed yun and that is provided under RA 6975.
WHEN YOU WANT TO ENFORCE MARITAL RIGHTS INVOLVING
COVERTURES AND LIVING IN CONJUGAL DWELLING?
- So nilayasan ka ng asawa mo, gusto mo mabalik
sayo nag petition siya ng writ of habeas corpus
- Pwede ba? HINDI.
ILLUSORIO v BUILDNER
- Nilayasan ng asawa.
- Pagnilayasan ka ng asawa mo hayaan mo na siya.
- You cannot compel him to live with you.
- Mag file ka na lang ng annulment or nullity. LET HIM
GO. MOVE ON.
LOSS OF CRIMINAL RECORD INCLUDING COPY OF JUDGMENT
IS THAT A GROUND FOR HABEAS CORPUS PETITION?
- NO. Nawala lang yung record but the conviction is still
there. The imprisonment is valid.
WHEN WRIT IS ALLOWED?
SECTION 5. When the writ must be granted and issued. - A
court or judge authorized to grant the writ must, when a
petition therefor is presented and it appears that the writ
ought to issue, grant the same forthwith, and immediately
thereupon the clerk of the court shall issue the writ under the
seal of the court; or in case of emergency, the judge may issue
the writ under his own hand, and may depute any officer or
person to serve it.
Pag na ISSUE na yung writ anong mangyayari?
GENERALLY the person detained will be released. Discharge
the person
What are the EXCEPTIONS?
- if your ground is LACK OF JURISDICTION and later on
nagkaroon ng JURISDICTION then hindi pa rin siya
mare-release
- later on charged with or convicted with offense in the
Philippines – there is other cause for his detention
- imprisonment under a lawful judgment – meron
siyang ibang kaso na pinagdurusahan
GRANT AND ISSUANCE OF WRIT
The writ of habeas Corpus is peculiar. It has its own
peculiarity.
Peculiar thing:
- Release now
- Hearing later
Pagna issue ang writ release kaagad saka na tayo mag
hearing.
When you file the petition, the court can issue the writ,
meaning to say upon receipt of the petition if there is basis to
issue the writ.
WHEN ISSUED?
- Any date
- Any time
- Including holidays
Kaya nga pag holidays and weekends meron tayong
*SKELETAL RECOURSE COURT (inaudible, di nko masabtan
kung unsa ni na court) precisely to cater these extremely
urgent petitions that can be filed.
WHO MAY ISSUE?
- Clerk of Court
- But kapag emergency cases, holiday or weekend the
court is his own hand and depute any officer or
person to serve it.
- Kapag nabasa niya yung petition isusulat kamay niya
at i-a-appoint niya as deputy kung sino ang available
officer there or even the petitioner himself pwede.
REFUSAL TO ISSUE WRIT
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
- Fine P1,000
- Contempt
SECTION 6. To whom writ directed, and what to require. - In
case of imprisonment or restraint by an officer, the writ shall
be directed to him, and shall command him to have the body
of the person restrained of his liberty before the court or judge
designated in the writ at the time and place therein specified.
In case of imprisonment or restraint by a person not an officer,
the writ shall be directed to an officer, and shall command him
to take and have the body of the person restrained of his
liberty before the court or judge designated in the writ at the
time and place therein specified, and to summon the person by
whom he is restrained then and there to appear before said
court or judge to show the cause of the imprisonment or
restraint.
CONTENTS OF WRIT
Once the court determines that the writ should be issued then
the writ should contain the following:
1. Directive to an officer to have the body of the
person restrained, produced before the court or
the judge designated in the writ at the time and
place therein specified kung kalian i-pre-present,
i-pro-produce ang taong dinetain
2. to take and have the body of the person
restrained of his liberty before the court or judge
designated in the writ at the time and place
therein specified
3. to summon the person by whom he is restrained
then and there to appear before said court or
judge to show the cause of the imprisonment or
restraint
Aside from the order requiring the production of the body of
the person restrained, there is a DIRECTIVE TO SHOW CAUSE
for the restraint directed to the person who has in his custody
the person restrained. It shall also contain the description or
the name of the person to be produced.
SECTION 9. Defect of form. - No writ of habeas corpus can
be disobeyed for defect of form, if it sufficiently appears
therefrom in whose custody or under whose restraint the party
imprisoned or restrained is held and the court or judge before
whom he is to be brought.
FORMAL DEFECTS OF WRIT
- I s this a ground to disobey the writ? (not ground to
disobey writ)
- Not necessarily for as long as the following sufficiently
appears in the writ:
o The person in whose custody or under
whose restraint the party in prison is made
or is withheld
o Or the court or judge for whom he is to be
brought
As long as these two are very clear, the formal defect in the
writ can be overruled. The writ has to be obeyed.
WHO SERVE?
- Sheriff or other proper officer
- Any person deputized by the court or judge
SERVICE OF WRIT
SECTION 7. How prisoner designated and writ served. - The
person to be produced should be designated in the writ by his
name, if known, but if his name is not known he may be
otherwise described or identified. The writ may be served in
any province by the sheriff or other proper officer, or by a
person deputed by the court or judge. Service of the writ shall
be made by leaving the original with the person to whom it is
directed and preserving a copy on which to make return of
service. If that person cannot be found, or has not the prisoner
in his custody, then the service shall be made on any other
person having or exercising such custody.
HOW IS THE SERVICE OF WRIT BE MADE?
- By PERSONAL SERVICE
1. Service of the writ shall be made by leaving the
original with the person to whom it is directed
and preserving a copy on which to make return
of service.
2. If that person cannot be found, or has not the
prisoner in his custody, then the service shall be
made on any other person having or exercising
such custody.
HOW WRIT EXECUTED?
Kasi na issue na ang writ, na-e-execute ba yun? Yes. How?
SECTION 8. How writ executed and returned. - The officer to
whom the writ is directed shall convey the person so
imprisoned or restrained, and named in the writ, before the
judge allowing the writ, or, in case of his absence or disability,
before some other judge of the same court, on the day
specified in the writ, unless, from sickness or infirmity of the
person directed to be produced, such person cannot, without
danger, be brought before the court or judge; and the officer
shall make due return of the writ, together with the day and
the cause of the caption and restraint of such person according
to the command thereof.
The officer to whom the writ is directed shall CONVEY THE
PERSON SO IMPRISONED OR RESTRAINED, and named in the
writ, before:
1. the judge allowing the writ, or,
2. in case of his absence or disability, before some
other judge of the same court, on the day specified in
the writ,
So kung ano ang nakalagay na schedule na i-produce mo yung
taong yun, then bring that, you comply with that. That is
tantamount to the execution of a writ. YOU COMPLY WITH
THE WRIT, that is how you execute the writ.
EXCEPTIONS to the rule that you have to produce the person
restrained on the date and time specified.
There are TWO EXCEPTIONS:
1. When the judge allowing the writ is absent or suffers
disability – in that case you don’t have to be very
literal and produce him before the judge kasi wala
nga siya eh, you bring that person to some other
judge of the same court. Pag absent si judge it
doesn’t mean absuelto ka na from executing or
applying with the writ, all you have to do is to look for
another judge who can entertain your execution of
the writ. (I think ka ni refers above na “in case of his
absence or disability, before some other judge of the
same court”)
2. from sickness or infirmity of the person directed to
be produced,
(such person cannot, without danger, be brought
before the court or judge;  wala niya gi mention
pero naa sa provisions)
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Those are the only exceptions to the rule that you must
produce, you must comply and you must execute the writ.
WHAT HAPPENS IF YOU ARE ABLE TO EXECUTE THE WRIT?
- The OFFICER shall make due RETURN OF THE WRIT,
together with the day and the cause of the caption
and restraint of such person according to the
command thereof. So gagawa ka ngayon ng return.
RETURN
CONTENTS OF RETURN
SECTION 10. Contents of return. - When the person to be
produced is imprisoned or restrained by an officer, the person
who makes the return shall state therein, and in other cases
the person in whose custody the prisoner is found shall state,
in writing to the court or judge before whom the writ is
returnable, plainly and unequivocably:
(a) Whether he has or has not the party in his custody or
power, or under restraint;
(b) If he has the party in his custody or power, or under
restraint, the authority and the true and whole cause thereof,
set forth at large, with a copy of the writ, order, execution, or
other process, if any, upon which the party is held;
(c) If the party is in his custody or power or is restrained by
him, and is not produced, particularly the nature and gravity of
the sickness or infirmity of such party by reason of which he
cannot, without danger, be brought before the court or judge;
(d) If he has had the party in his custody or power, or under
restraint, and has transferred such custody or restraint to
another, particularly to whom, at what time, for what cause,
and by what authority such transfer was made.
WHAT ARE THE CONTENTS OF THE RETURN?
1. You have to state WHETHER HE HAS OR HAS NOT
THE PARTY IN HIS CUSTODY OR POWER, or under
restraint;
- Sasabihin mo, you have to be very candid na
nasasayo yung tao na na-alleged to be retrained
2. If he has the party in his custody or power, or under
restraint, the authority and the TRUE AND WHOLE
CAUSE thereof, set forth at large, with a copy of the
writ, order, execution, or other process, if any, upon
which the party is held;
- Ano yung reason bakit nasa puder mo.
3. If the party is in his custody or power or is restrained
by him, and is NOT PRODUCED, particularly the
nature and gravity of the sickness or infirmity of such
party by reason of which he cannot, without danger,
be brought before the court or judge;
- you have to particularize the nature of sickness or
infirmity
4. If he has had the party in his custody or power, or
under restraint, and has TRANSFERRED such custody
or restraint to another, particularly to whom, at what
time, for what cause, and by what authority such
transfer was made.
- Include the details of the transfer, kung kalian,
kanino, what time and the reason for the transfer as
well as the authority for the transfer
FORM OF RETURN
SECTION 11. Return to be signed and sworn to. - The return
or statement shall be signed by the person who makes it; and
shall also be sworn to by him if the prisoner is not produced,
and in all other cases unless the return is made and signed by
a sworn public officer in his official capacity.
- Signed by the person making it; and
- If you cannot produce the prisoner it has to be
verified
- Verified – if person is not produced
- Need Not be verified (by implication) – if person
is produced
NON-EXECUTION OF WRIT
SECTION 16. Penalty for refusing to issue writ, or for
disobeying the same. - A clerk of a court who refuses to issue
the writ after allowance thereof and demand therefor, or a
person to whom a writ is directed, who neglects or refuses to
obey or make return of the same according to the command
thereof, or makes false return thereof, or who, upon demand
made by or on behalf of the prisoner, refuses to deliver to the
person demanding, within six (6) hours after the demand
therefor, a true copy of the warrant or order of commitment,
shall forfeit to the party aggrieved the sum of one thousand
pesos, to be recovered in a proper action, and may also be
punished by the court or judge as for contempt.
- Fine
- Contempt
WHY IS IT IMPORTANT THAT YOU SHOULD MAKE A RETURN?
Why should the respondent make a return? Because the
respondent will be the one who make the return bakit niya
kailangan mag file ng return?
- Because the RETURN now will be the BASIS of the
HEARING. Not the petition that will be the basis of
the hearing but the return will be subject of the
hearing.
- Take note that upon filing of the petition pwede na
mag-issue si judge ng writ, kaya nga issue now,
hearing later, magkakaroon ng hearing if there is now
a return. The return will be subject of the hearing.
HEARING ON RETURN
SECTION 12. Hearing on return. Adjournments. - When the
writ is returned before one judge, at a time when the court is
in session, he may forthwith adjourn the case into the court,
there to be heard and determined. The court or judge before
whom the writ is returned or adjourned must immediately
proceed to hear and examine the return, and such other
matters as are properly submitted for consideration, unless for
good cause shown the hearing is adjourned, in which event
the court or judge shall make such order for the safekeeping of
the person imprisoned or restrained as the nature of the case
requires. If the person imprisoned or restrained is not
produced because of his alleged sickness or infirmity, the court
or judge must be satisfied that it is so grave that such person
cannot be produced without danger, before proceeding to hear
and dispose of the matter. On the hearing the court or judge
shall disregard matters of form and technicalities in respect to
any warrant or order of commitment of a court or officer
authorized to commit by law.
USES OF RETURN
- SECTION 13 RULE 102
SECTION 13. When the return evidence, and when only a
plea. - If it appears that the prisoner is in custody under a
warrant of commitment in pursuance of law, the return shall
be considered prima facie evidence of the cause of restraint;
but if he is restrained of his liberty by any alleged private
authority, the return shall be considered only as a plea of the
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
facts therein set forth, and the party claiming the custody must
prove such facts.
- It is the PRIMA FACIE EVIDENCE of the cause of
restraint
- If the person in custody under a WARRANT OF
COMMITMENT in pursuance of law
o the petitioner here has the burden to show
that the restraint is illegal
If there is a warrant of commitment, there is an order of
commitment, then the return is the prima facie evidence of the
cause of restraint. Kasi may sinusunod siya n order the burden
of proof is shifted on the petitioner to show that the restraint is
illegal.
What is the reason for that?
- Presumption that the official duty has been regularly
performed
If the respondent, or the one who makes the return is a
PRIVATE PERSON, what is now the use of the return?
- The return is the flee of facts set forth therein.
Anong ibig sabihin nun?
- RETURN merely CONTAINS ALLEGATION OF THE
FACTS alleged by it.
- Para lang siya nagserve as an ASWER to the petition.
- Therefore who has the burden of proof to
substantiate the facts alleged in the return?
- It is not the petitioner it is the respondent.
- Siya ang magpro-prove kung ano ang pinaglalagay
niya doon na allegations niya
DENIAL OF WRIT
GROUND: Prisoner was lawfully committed
Kung klaro naman na there was lawful commitment then the
writ cannot be issued.
SECTION 14. When person lawfully imprisoned recommitted,
and when let to bail. - If it appears that the prisoner was
lawfully committed, and is plainly and specifically charged in
the warrant of commitment with an offense punishable by
death, he shall not be released, discharged, or bailed. If he is
lawfully imprisoned or restrained on a charge of having
committed an offense not so punishable, he may be
recommitted to imprisonment or admitted to bail in the
discretion of the court or judge. If he be admitted to bail, he
shall forthwith file a bond in such sum as the court or judge
deems reasonable, considering the circumstances of the
prisoner and the nature of the offense charged, conditioned for
his appearance before the court where the offense is properly
cognizable to abide its order or judgment; and the court or
judge shall certify the proceedings, together with the bond,
forthwith to the proper court. If such bond is not so filed, the
prisoner shall be recommitted to confinement.
Take note that there are also DISPOSITIONS OF THE PERSON
DETAINED EVEN IF THE WRIT IS DENIED.
Kapag charged siya with the capital offense he remains in
custody.
If charge siya not with the capital offense then pwede
magkaroon ng hearing or letting him out on bail. If he is
admitted to bail, he is allowed to file his bail bond the court
will certify the proceedings together with the bond to the
proper court for speedy disposition.
GRANT OF WRIT
SECTION 15. When prisoner discharged if no appeal. - When
the court or judge has examined into the cause of caption and
restraint of the prisoner, and is satisfied that he is unlawfully
imprisoned or restrained, he shall forthwith order his discharge
from confinement, but such discharge shall not be effective
until a copy of the order has been served on the officer or
person detaining the prisoner. If the officer or person detaining
the prisoner does not desire to appeal, the prisoner shall be
forthwith released.
- If there is unlawful imprisonment
- If the court is determined that the restraint is
unlawful then the order of the court will include the
discharge of the person
- Discharge is effected upon service of the copy of the
order
- There will be no appeal
- It takes effect within 48 hours
After 48 hours from receipt of the order then the discharge will
be effected after service of the copy of the order, why?
- Because it is within this 48 hours that the respondent
can file an appeal.
Take note that under Rule 102 the period to appeal is only
limited to 48 hours, 2 days only. After 2 days final and
executory na ang order ng court.
SECTION 17. Person discharged not to be again imprisoned. -
A person who is set at liberty upon a writ of habeas corpus
shall not be again imprisoned for the same offense unless by
the lawful order or process of a court having jurisdiction of the
cause or offense; and a person who knowingly, contrary to the
provisions of this rule, recommits or imprisons, or causes to be
committed or imprisoned, for the same offense, or pretended
offense, any person so set at liberty, or knowingly aids or
assists therein, shall forfeit to the party aggrieved the sum of
one thousand pesos, to be recovered in a proper action,
notwithstanding any colorable pretense or variation in the
warrant of commitment, and may also be punished by the
court or judge granting the writ as for contempt.
- A person who is set at liberty upon a writ of habeas
corpus shall not be again imprisoned for the same
offense unless by the lawful order or process of a
court having jurisdiction of the cause or offense.
INVALID RECOMMITMENT OF PERSON DISCHARGE
- Fine P 1,000
- Contempt
TRANSFER OF DETAINED PERSON
SECTION 18. When prisoner may be removed from one
custody to another. - A person committed to prison, or in
custody of an officer, for any criminal matter, shall not be
removed therefrom into the custody of another officer unless
by legal process, or the prisoner be delivered to an inferior
officer to carry to jail, or, by order of the proper court or
judge, be removed from one place to another within the
Philippines for trial, or in case of fire, epidemic, insurrection, or
other necessity or public calamity; and a person who, after
such commitment, makes, signs, or countersigns any order for
such removal contrary to this section, shall forfeit to the party
aggrieved the sum of one thousand pesos, to be recovered in
a proper action.
INVALID TRANSFER
SECTION 19. Record of writ, fees and costs. - The
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

proceedings upon a writ of habeas corpus shall be recorded by

the clerk of the court, and upon the final disposition of such
proceedings the court or judge shall make such order as to
costs as the case requires. The fees of officers and witnesses
shall be included in the costs taxed, but no officer or person
shall have the right to demand payment in advance of any fees
to which he is entitled by virtue of the proceedings. When a
person confined under color of proceedings in a criminal case
is discharged, the costs shall be taxed against the Republic of
the Philippines, and paid out of its Treasury; when a person in
custody by virtue or under color of proceedings in a civil case
is discharged, the costs shall be taxed against him, or against
the person who signed the application for the writ, or both, as
the court shall direct.

- Fine: 1,000
- Who will shoulder the COST?
o It will be against the government if the
person confined under color of proceedings
in criminal case is discharge, meaning to say
unlawful yung pag detain sa kanya in a
criminal case, then the cost will be charge
against the government.
o if it is a civil case then it will be passed
against the person dischage against the
petitioner or both the person under custody
by virtue under color of proceedings in a civil
case is discharged.

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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS
CORPUS IN RELATION TO CUSTODY OF MINORS
Under the Special Rule AM 03-03-04-SC
A.M. No. 03-04-04-SC
April 22, 2003
RE: PROPOSED RULE ON CUSTODY OF MINORS AND
WRIT OF HABEAS CORPUS
IN RELATION TO CUSTODY OF MINORS
RESOLUTION
RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS
CORPUS
IN RELATION TO CUSTODY OF MINORS
SECTION 1. Applicability. - This rule shall apply to petitions
for custody of minors and writs of habeas corpus in relation
thereto.
The Rules of Court shall apply suppletorily.
Section 2. Petition for custody of minors; who may file.-
A verified petition for the rightful custody of a minor may be
filed by any person claiming such right. The party against
whom it may be filed shall be designated as the respondent.
Section 3. Where to file petition. - The petition for custody
of minors shall be filed with the Family Court of the province or
city where the petitioner resides or where the minor may be
found.
Section 4. Contents of petition. - The verified petition shall
allege the following:
(a) The personal circumstances of the petitioner and
of the respondent;
(b) The name, age and present whereabouts of the
minor and his or her relationship to the petitioner and
the respondent;
(c) The material operative facts constituting
deprivation of custody; and
(d) Such other matters which are relevant to the
custody of the minor.
The verified petition shall be accompanied by a certificate
against forum shopping, which the petitioner must sign
personally.
Section 5. Summons; personal service on respondent. -
If the court is satisfied that the petition is sufficient in form
and substance, it shall direct the clerk of court to issue
summons, which shall be served together with a copy of the
petition personally on the respondent.
Section 6. Motion to Dismiss. - A motion to dismiss the
petition is not allowed except on the ground of lack of
jurisdiction over the subject matter or over the parties. Any
other ground that might warrant the dismissal of the petition
may be raised as an affirmative defense in the answer.
Section 7. Verified Answer. - The respondent shall file an
answer to the petition, personally verified by him, within five
days after service of summons and a copy of the petition.
Section 8. Case study; duty of social worker. - Upon the
filing of the verified answer or the expiration of the period to
file it, the court may order a social worker to make a case
study of the minor and the parties and to submit a report and
recommendation to the court at least three days before the
scheduled pre-trial.
Section 9. Notice of mandatory pre-trial. - Within fifteen
days after the filing of the answer or the expiration of the
period to file answer, the court shall issue an order: (1) fixing
a date for the pre-trial conference; (2) directing the parties to
file and serve their respective pre-trial briefs in such manner as
shall ensure receipt thereof by the adverse party at least three
days before the date of pre-trial; and (3) requiring the
respondent to present the minor before the court.
The notice of its order shall be served separately on both the
parties and their respective counsels. The pre-trial is
mandatory.
Section 10. Contents of pre-trial brief. - The pre-trial brief
shall contain the following:
(a) A statement of the willingness of the parties to
enter into agreements that may be allowed by law,
indicating its terms;
(b) A concise statement of their respective claims
together with the applicable laws and authorities;
(c) Admitted facts and proposed stipulations of facts;
(d) The disputed factual and legal issues;
(e) All the evidence to be presented, briefly stating or
describing its nature and purpose;
(f) The number and names of the witnesses and their
respective affidavits which shall serve as the affiant's
testimony on direct examination; and
(g) Such other matters as the court may require to be
included in the pre-trial brief.
Failure to file the pre-trial brief or to comply with its required
contents shall have the same effect as failure to appear at the
pre-trial.
Section 11. Effect of failure to appear at the pre-trial.-
(a) If the petitioner fails to appear personally at the pre-trial,
the case shall be dismissed, unless his counsel or a duly
authorized representative appears in court and proves a valid
excuse for the non-appearance of the petitioner.
(b) If the respondent has filed his answer but fails to appear at
the pre-trial, the petitioner shall be allowed to present his
evidence ex parte. The court shall then render judgment on
the basis of the pleadings and the evidence thus presented.
Section 12. What may be done at pre-trial. - At the pre-
trial, the parties may agree on the custody of the minor. If the
parties fail to agree, the court may refer the matter to a
mediator who shall have five days to effect an agreement
between the parties. If the issue is not settled through
mediation, the court shall proceed with the pre-trial
conference, on which occasion it shall consider such other
matters as may aid in the prompt disposition of the petition.
Section 13. x x x *below*
Section 14. Factors to consider in determining
custody. - In awarding custody, the court shall consider the
best interests of the minor and shall give paramount
consideration to his material and moral welfare. The best
interests of the minor refer to the totality of the circumstances
and conditions as are most congenial to the survival,
protection, and feelings of security of the minor encouraging to
his physical, psychological and emotional development. It also
means the least detrimental available alternative for
safeguarding the growth and development of the minor.
The court shall also consider the following:
(a) Any extrajudicial agreement which the parties may
have bound themselves to comply with respecting the
rights of the minor to maintain direct contact with the
non custodial parent on a regular basis, except when
there is an existing threat or danger of physical,
mental, sexual or emotional violence which endangers
the safety and best interests of the minor;
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
(b) The desire and ability of one parent to foster an
open and loving relationship between the minor and
the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the
person seeking custody or who has had any filial
relationship with the minor, including anyone courting
the parent;
(e) The nature and frequency of contact with both
parents;
(f) Habitual use of alcohol, dangerous drugs or
regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual,
psychological and educational environment for the
holistic development and growth of the minor; and
(i) The preference of the minor over seven years of
age and of sufficient discernment, unless the parent
chosen is unfit.
Section 15. Temporary visitation rights. - The court shall
provide in its order awarding provisional custody appropriate
visitation rights to the non-custodial parent or parents, unless
the court finds said parent or parents unfit or disqualified.
The temporary custodian shall give the court and non custodial
parent or parents at least five days' notice of any plan to
change the residence of the minor or take him out of his
residence for more than three days provided it does not
prejudice the visitation rights of the non-custodial parent or
parents.
Section 16. Hold Departure Order. - The minor child
subject of the petition shall not be brought out of the country
without prior order from the court while the petition is
pending.
The court, motu proprio or upon application under oath, may
issue ex parte a hold departure order, addressed to the Bureau
of Immigration and Deportation, directing it not to allow the
departure of the minor from the Philippines without the
permission of the court.
The Family Court issuing the hold departure order shall furnish
the Department of Foreign Affairs and the Bureau of
Immigration and Deportation of the Department of Justice a
copy of the hold departure order within twenty-four hours from
its issuance and through the fastest available means of
transmittal.
The hold departure order shall contain the following
information:
(a) The complete name (including the middle name),
the date and place of birth, the nationality and the
place of last residence of the person against whom a
hold departure order has been issued or whose
departure from the country has been enjoined;
(b) The complete title and docket number of the case
in which the hold departure order was issued;
(c) The specific nature of the case;
(d) The date of the hold departure order; and
(e) A recent photograph, if available, of the party
against whom a hold departure order has been issued
or whose departure from the country has been
enjoined.
The court may recall the hold departure order motu proprio, or
upon verified motion of any of the parties after summary
hearing, subject to such terms and conditions as may be
necessary for the best interests of the minor.
Section 17. Protection Order. - The court may issue a
Protection Order requiring any person:
(a) To stay away from the home, school, business, or
place of employment of the minor, other parent or
any other party, or from any other specific place
designated by the court;
(b) To cease and desist from harassing, intimidating,
or threatening such minor or the other parent or any
person to whom custody of the minor is awarded;
(c) To refrain from acts of commission or omission
that create an unreasonable risk to the health, safety,
or welfare of the minor;
(d) To permit a parent, or a party entitled to visitation
by a court order or a separation agreement, to visit
the minor at stated periods;
(e) To permit a designated party to enter the
residence during a specified period of time in order to
take personal belongings not contested in a
proceeding pending with the Family Court; and
(f) To comply with such other orders as are necessary
for the protection of the minor.
Section 18. Judgment. - After trial, the court shall render
judgment awarding the custody of the minor to the proper
party considering the best interests of the minor.
If it appears that both parties are unfit to have the care and
custody of the minor, the court may designate either the
paternal or maternal grandparent of the minor, or his oldest
brother or sister, or any reputable person to take charge of
such minor, or commit him to any suitable home for children.
In its judgment, the court may order either or both parents to
give an amount necessary for the support, maintenance and
education of the minor, irrespective of who may be its
custodian. In determining the amount of support, the court
may consider the following factors: (1) the financial resources
of the custodial and non-custodial parent and those of the
minor; (2) the physical and emotional health, special needs,
and aptitude of the minor; (3) the standard of living the minor
has been accustomed to; and (4) the non-monetary
contributions that the parents would make toward the care and
well-being of the minor.
The court may also issue any order that is just and reasonable
permitting the parent who is deprived of the care and custody
of the minor to visit or have temporary custody.
Section 19. Appeal. - No appeal from the decision shall be
allowed unless the appellant has filed a motion for
reconsideration or new trial within fifteen days from notice of
judgment.
An aggrieved party may appeal from the decision by filing a
Notice of Appeal within fifteen days from notice of the denial of
the motion for reconsideration or new trial and serving a copy
thereof on the adverse parties.
Section 20. Petition for writ of habeas corpus. - A
verified petition for a writ of habeas corpus involving custody
of minors shall be filed with the Family Court. The writ shall be
enforceable within its judicial region to which the Family Court
belongs.
However, the petition may be filed with the regular court in the
absence of the presiding judge of the Family Court, provided,
however, that the regular court shall refer the case to the
Family Court as soon as its presiding judge returns to duty.
The petition may also be filed with the appropriate regular
courts in places where there are no Family Courts.
The writ issued by the Family Court or the regular court shall
be enforceable in the judicial region where they belong.
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

The petition may likewise be filed with the Supreme Court, ANSWER:
Court of Appeals, or with any of its members and, if so
- VERIFIED
granted, the writ shall be enforceable anywhere in the
Philippines. The writ may be made returnable to a Family Court - Filed within 5 days (5 DAYS LANG ANG ANSWER
or to any regular court within the region where the petitioner DITO)
resides or where the minor may be found for hearing and
decision on the merits. - Contain grounds for dismissal as affirmative defenses

Upon return of the writ, the court shall decide the issue on - Will not move for the dismissal unless THE GROUND
custody of minors. The appellate court, or the member MUST BE: LACK OF JURISDICTION OVER THE
thereof, issuing the writ shall be furnished a copy of the SUBJECT MATTER OR OVER THE PARTIES
decision. - OTHERWISE ALL OTHER GROUNDS YOU HAVE TO
Section 21. Confidentiality of proceedings. - The ALLEGE AS AN AFFIRMATIVE DEFENSE
hearings on custody of minors may, at the discretion of the CASE STUDY
court, be closed to the public and the records of the case shall
not be released to non-parties without its approval. - Conducted by Social worker

Section 22. Effectivity. - This Rule shall take effect on May - The subject thereof would be the minor and the
15, 2003 following its publication in a newspaper of general parties
circulation not later than April 30, 2003. - Must be submitted at least 3 days before pre trial

*Ma’am showing the flow chart on the slides

*FOR CUSTODY PROCEEDINGS
FILE A PETITION WITH THE FAMILY COURT  WHICH PRE TRIAL CONFERENCE
ISSUES THE SUMMON TO THE DEFENDANTSANSWER at - There will be PRE TRIAL BRIEF to be submitted
the same time a CASE STUDY PREPARED BY THE SOCIAL
WORKER after the answer NOTICE OF PRE TRIAL and the - Failed to file PRE TRIAL BRIEF there are sanctions:
HOLDING of a PRE TRIAL CONFERENCE pending these o PETITONER: petition is dismissed
proceedings, PROVISIONAL ORDERS AWARDING CUSTODY
MAY BE GIVEN OR ISSUED BY THE COURT during PRE o RESPONDENT: ex parte presentation of
TRIAL there will be MEDIATION if there is NO AMICABLE evidence by the petitioner.
SETTLEMENT TRIAL JUDGMENT
- The then court can proceed to the Pre-Trial
So we are tlaking here of custody over minors. Conference

WHERE TO FILE PETITION?
- The petition for custody of minors shall be filed with
the FAMILY COURT of the province or city where the
petitioner resides or where the minor may be found.
WHO MAY FILE? WHO WILL BE PARTIES TO THE PETITION?
Take note that when it comes to the CUSTODY OF A MINOR
the court can conduct MEDIATION. It is mediatable unlike
when the issue is validity of the marriage, RA 9262 cases
VAWC or abuses these are non-mediatable cases. Pero custody
pwede kahit pa as an incident to a legal separation or
annulment of marriage or declaration of nullity of marriage.

- A verified petition for the rightful custody of a minor Pwede AMICABLE SETTLEMENT involving custody of minor
may be filed by any person claiming such right. children

- The party against whom it may be filed shall be - But not touch on the issue of
designated as the respondent. o legal separation or
JURISDICTION: o validity of the marriage
- FAMILY COURT Can have amicable settlement involving custody of minor
CONTENTS OF PETITION children is concerned. That is why nagkakaroon ng mediation.

The verified petition shall allege the following: Now pending the hearing on the custody case pwede mag
issue ng PROVISIONAL ORDERS ang Family Court.
(a) The personal circumstances of the petitioner and
of the respondent; What are those PROVISIONAL ORDERS?

(b) The name, age and present whereabouts of the - Temporary custody
minor and his or her relationship to the petitioner and - Temporary visitation rights
the respondent;
- Hold departure order
(c) The material operative facts constituting
deprivation of custody; and - Protection order

(d) Such other matters which are relevant to the
custody of the minor.
The verified petition shall be accompanied by a certificate
against forum shopping, which the petitioner must sign
personally.
SUMMONS:
- Issued by the Clerk of Court
- Together with the copy of the petition
- to be personally served with the respondent
- Support pendente lite
TEMPORARY CUSTODY
- There are ORDER OF PREFERENCE as to whom may
be granted temporary custody
Section 13. Provisional order awarding custody. - After
an answer has been filed or after expiration of the period to
file it, the court may issue a provisional order awarding
custody of the minor. As far as practicable, the following order
of preference shall be observed in the award of custody:

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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
(a) Both parents jointly;
(b) Either parent, taking into account all relevant
considerations, especially the choice of the minor over
seven years of age and of sufficient discernment,
unless the parent chosen is unfit;
(c) The grandparent, or if there are several
grandparents, the grandparent chosen by the minor
over seven years of age and of sufficient discernment,
unless the grandparent chosen is unfit or disqualified;
(d) The eldest brother or sister over twenty-one years
of age, unless he or she is unfit or disqualified;
(e) The actual custodian of the minor over twenty-
one years of age, unless the former is unfit or
disqualified; or
(f) Any other person or institution the court may
deem suitable to provide proper care and guidance
for the minor.
Factors to consider:
- MATERIAL AND MORAL WELFARE
WHAT ARE OTHER FACTORS?
(a) Any extrajudicial agreement which the parties
may have bound themselves to comply with
respecting the rights of the minor to maintain
direct contact with the non custodial parent on a
regular basis, except when there is an existing
threat or danger of physical, mental, sexual or
emotional violence which endangers the safety
and best interests of the minor; - pag may
AGREEMENT na sila then that can be considered
as one of the factors regarding custody of the
child
Take note:
DACASIN v DACASIN
- Here the parties entered into an extrajudicial
agreement with respect to the custody of the child
executed abroad
- Sharon here is a Filipino divorce and American in
Illinois Court which awarded her the sole custody of
the minor child Stepanie
- After the divorce proceeding the parties executed an
agreement for the Joint custody of Stephanie who
was then 6 years old, which contract was sought to
enforce in Philippine court.
Anong ibig sabihin ng joint custody?
- Silang dalawa can have care and custody of
Stephanie
- Herald wanted to enforce that agreement in Philippine
Court.
Is that allowed?
- Procedurally that is allowed
- but the question is, Is the agreement valid?
- The SC held, it is NOT VALID
Why?
- The agreement subject to have the joint custody of a
minor under 7 years of age contravenes Philippine
Law
- under Article 213 of the FC, no child under 7 years of
age shall be separated from the mother
- the parties are no longer married under the laws of
the US because of the divorce decree
- however instead of ordering the dismissal kasi nga
doon sila nagkaproblema sa validity of the agreement
- Instead of ordering the dismissal of petitioners suit,
the logical end to its lack of cause of action, we
REMAND THE CASE for the trial court to settle the
question of Stephanies custody. Stephanie is now
nearly 15 years old, (so time had intervene) thus
removing the case outside of the ambit of the
mandatory maternal custody regime under Article 213
and bringing it within coverage of the default
standard on child custody proceedings the best
interest of the child.
- As the question of custody is already before the trial
court and the childs parents, by executing the
Agreement, initially showed inclination to share
custody, it is in the interest of swift and efficient
rendition of justice to allow the parties to take
advantage of the courts jurisdiction, submit evidence
on the custodial arrangement best serving Stephanies
interest, and let the trial court render judgment. This
disposition is consistent with the settled doctrine that
in child custody proceedings, equity may be invoked
to serve the child’s best interest.
So in this case you can actually take note and use whatever
extrajudicial agreement you may have involving custody over
the minor child in order to persuade the minor child to grant
custody in accordance with your agreement.
In this case the initial ruling of the court INVALID, kasi nga 6
years old pa lang si Stephanie. Since she is already 15 then
pwede na i-consider yung agreement nila. That is one factor
considered involving custody of the minor.
OTHER FACTORS:
(b) The desire and ability of one parent to foster an
open and loving relationship between the minor and
the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the
person seeking custody or who has had any filial
relationship with the minor, including anyone courting
the parent;
(e) The nature and frequency of contact with both
parents;
(f) Habitual use of alcohol, dangerous drugs or
regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual,
psychological and educational environment for the
holistic development and growth of the minor; and
(i) The preference of the minor over seven years of
age and of sufficient discernment, unless the parent
chosen is unfit.
There are several factors, but take note the case of DACASIN
v DACASIN involving extrajudicial agreement of the parties.
VISITORIAL RIGHTS
- Take note provisional custody appropriate visitation
rights granted to the NON-CUSTODIAL PARENT OR
PARENTS. Siya lang ang pwede kasi wala sa kanyang
puder yung bata.
HOLD DEPARTURE ORDER
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

- When is when the child is about to be taken out of - The SC explained further that the FAMILY COURTS
the Philippine jurisdiction pwede mag issue ang ACT did not divest the CA jurisdiction over habeas
Family Court ng hold departure order. corpus cases involving custody of minors.
- This can be granted, motu proprio or upon application - So the petitioner can file it with the CA especially
under oath, may issue ex parte a hold departure when the minor is deemed transferred from one place
order. to another
PROTECTION ORDER - And the petitioner in habeas corpus cases would be
left without legal remedy if he confines his petition in
- When the child is under threat, being stalked or being
a specific Family Court or RTC
harassed you can avail of the protection order.
JUDGMENT
RA 8369
- In custody case will obviously state to whom the
custody of the child would be awarded it also includes FAMILY COURTS ACT OF 1997
- In its judgment, the court may order either or both - So if you file it with the CA the writ is enforceable to
parents to give an amount necessary for the anywhere in the country that would facilitate the
support, maintenance and education of the enforcement and execution of the writ of habeas
minor, irrespective of who may be its custodian. corpus cases.
- Visitation rights if appropriate DECISION
FACTORS IN AWARDING SUPPORT - Upon return of the writ, the court shall decide the
issue on custody of minors. The appellate court, or
In determining the amount of support, the court may consider
the member thereof, issuing the writ shall be
the following factors:
furnished a copy of the decision.
- (1) the financial resources of the custodial and non-
Does MEDIATION apply in HABEAS CORPUS cases involving
custodial parent and those of the minor;
MINORS? YES
- (2) the physical and emotional health, special needs,
- With the CONSENT of the PARTIES
and aptitude of the minor;
- For as long as the minor is not detained for a
- (3) the standard of living the minor has been
commission of a criminal offense
accustomed to; and
Is prior BARANGAY CONCILIATION required? NO
- (4) the non-monetary contributions that the parents
would make toward the care and well-being of the - Precisely a habeas corpus petition is urgent in nature
minor. and it is an exception to the barangay conciliation
requirement.
Take note you CANNOT APPEAL AN ORDER AWARDING
CUSTODY UNLESS you availed of the remedy of MOTION FOR - Disputes here are urgent and urgent legal action is
RECONSIDERATION that is a pre-requiste. necessary to prevent injustice from being committed.
HABEAS CORPUS involving MINORS SC AM 14-93
- You file it with the FAMILY COURT. - SUBJECT: GUIDELINES ON THE KATARUNGANG
PAMBARANGAY CONCILIATION PROCEDURE TO
- If no Family Courts go to the appropriate REGULAR
PREVENT CIRCUMVENTION OF THE REVISED
COURTS in places where there are kasi minors itong
KATARUNGANG PAMBARANGAY LAW (SECTIONS 399-
pinag-uusapan natin.
422, CHAPTER VII, TITLE I, BOOK III, R.A. 7160.
- the Supreme Court, Court of Appeals will also have OTHERWISE KNOWN AS THE LOCAL GOVERNMENT
jurisdiction to issue writ of habeas corpus involving CODE OF 1991).
minors
RETURN
- the same proceedings kung kanino made returnable,
the same mechanics applied
MADRINAN v MADRINAN
- The SC said that the family court are vested with
original and exclusive jurisdiction in custody cases
- but in habeas corpus cases family courts do not have
exclusive original jurisdiction because jurisdiction is
shared with the SC, CA, RTC in the absence of Family
Court.
- The SC and CA are not divested with jurisdiction over
habeas corpus case involving custody of minors
Custody
o Family Court
Habeas Corpus
o Jurisdiction is shared
IN RE: RICHARD BRIAN THORNTON

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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
AMPARO RULE
WRIT OF AMPARO
- This is a specie of rules promulgated by the SC to
enforce and protect constitutional rights
- There is no specific enabling law that is the basis for
the enactment on the rule on AMPARO
Rather the BASIS here is:
- CONSTITUTONAL RIGHT THAT NEEDS PROTECTION
That is Article 8 Section 5 Paragraph 5 of the
Constitution
The MAIN PURPOSE is to address problems on:
1. EXTRALEGAL KILLING
2. ENFORCED DISAPPEARANCES, or threats thereof
WHAT IS EXTRA LEGAL KILLINGS?
- Those committed without due process of law, or
without safeguard or judicial proceedings
WHAT IS ENFORCED DISAPPEARANCES?
- The definition in the case of RAZON v TAGITIS:
In general, there are three different kinds of disappearance
cases:
1) those of people arrested without
witnesses or without positive
identification of the arresting agents and
are never found again;
2) those of prisoners who are usually
arrested without an appropriate warrant
and held in complete isolation for weeks
or months while their families are unable
to discover their whereabouts and the
military authorities deny having them in
custody until they eventually reappear in
one detention center or another; and
3) those of victims of salvaging who have
disappeared until their lifeless bodies are
later discovered.
In the Philippines, enforced disappearances generally fall
within the first two categories...
The Amparo Rule expressly provides that the writ
shall cover extralegal killings and enforced disappearances or
threats thereof. We note that although the writ specifically
covers enforced disappearances, this concept is neither defined
nor penalized in this jurisdiction. The records of the Supreme
Court Committee on the Revision of Rules (Committee) reveal
that the drafters of the Amparo Rule initially considered
providing an elemental definition of the concept of
enforced disappearance:
JUSTICE MARTINEZ: I believe that first and
foremost we should come up or formulate a
specific definition [for] extrajudicial killings
and enforced disappearances. From that
definition, then we can proceed to formulate
the rules, definite rules concerning the same.
CHIEF JUSTICE PUNO: As things stand,
there is no law penalizing extrajudicial
killings and enforced disappearances so
initially also we have to [come up with]
the nature of these extrajudicial
killings and enforced disappearances
[to be covered by the Rule] because
our concept of killings and
disappearances will define the
jurisdiction of the courts. So well have to
agree among ourselves about the nature of
killings and disappearances for instance, in
other jurisdictions, the rules only cover state
actors.That is an element incorporated in
their concept of extrajudicial killings and
enforced disappearances. In other
jurisdictions, the concept includes acts and
omissions not only of state actors but also of
non state actors. Well, more specifically in
the case of the Philippines for instance,
should these rules include the killings, the
disappearances which may be authored by
let us say, the NPAs or the leftist
organizations and others. So, again we need
to define the nature of the extrajudicial
killings and enforced disappearances that will
be covered by these rules.
Fourteen years after (or on December 20, 2006), the
UN General Assembly adopted the International Convention for
the Protection of All Persons from Enforced Disappearance
(Convention). The Convention was opened for signature in
Paris, France on February 6, 2007. Article 2 of the Convention
defined enforced disappearance as follows:
For the purposes of this
Convention, enforced disappearance is
considered to be the arrest, detention,
abduction or any other form of deprivation of
liberty by agents of the State or by persons
or groups of persons acting with the
authorization, support or acquiescence of the
State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment
of the fate or whereabouts of the
disappeared person, which place such a
person outside the protection of the law.
[Emphasis supplied]
TAKE NOTE THESE ARE THE ELEMENTS OF ENFORCED
DISAPPEARANCES. YOU HAVE TO KNOW THIS FROM THE
HEART
- RA 9851 SECTION 3 (g)
(g) "Enforced or involuntary disappearance of persons" means
the arrest, detention, or abduction of persons by, or with the
authorization support or acquiescence of, a State or a political
organization followed by a refusal to acknowledge that
deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing
from the protection of the law for a prolonged period of time
"Enforced or involuntary disappearance of persons" means
1. the arrest, detention, or abduction of persons by, or
with the authorization support or acquiescence of, a
State or a political organization
2. followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or
whereabouts of those persons, with the intention of
removing from the protection of the law for a
prolonged period of time
- Na dagdag yung POLITICAL ORGANIZATION
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
RUBRICO v MACAPAGAL-ARROYO. Justice Brion on a
separate opinion said: With this law, the Rule on the Writ
of Amparo is now a procedural law anchored, not only on the
constitutional rights to the rights to life, liberty and security,
but on a concrete statutory definition as well of what an
"enforced or involuntary disappearance" is. This new law
renders academic and brings to a close the search for a
definition that we undertook in Razon v. Tagitis to look for a
firm anchor in applying the Rule on the Writ
of Amparo procedures.
Therefore the definition of an enforced disappearance under
the AMPARO RULE will now follow the definition set forth
under RA 9851 SECTION 3 (g) by reason of this Rubrico v
Magapagal-Arroyo. More or less that will now be the definition
of an enforced disappearance as stated in RA 9851 SECTION 3
(g).
DIO v PARDICO: Therefore, A.M. No. 07-9-12-SC’s (Amparo
Rules)reference to enforced disappearances should be
construed to mean the enforced or involuntary disappearance
of persons contemplated in Section 3(g) of RA No. 9851.
Meaning, in probing enforced disappearance cases, courts
should read A.M. No. 07-9-12-SC in relation to RA No. 9851.
So when you speak of enforced disappearances go back, you
have to check Section 3(g) of RA No. 9851. Kung anong
elements doon, yun na yung elements ng enforced
disappearances of the AMPARO RULE
- This case enumerated the ELEMENTS of enforced
disappearances which followed the elements under
RA 9851
From the statutory definition of enforced disappearance, thus,
we can derive the following elements that constitute it:
(a) that there be an arrest, detention, abduction or
any form of deprivation of liberty;
(b) that it be carried out by, or with the authorization,
support or acquiescence of, the State or a political
organization;
(c) that it be followed by the State or political
organization’s refusal to acknowledge or give
information on the fate or whereabouts of the person
subject of the amparo petition; and,
(d) that the intention for such refusal is to remove
subject person from the protection of the law for a
prolonged period of time.
WHAT IS GIVEN EMPHASIS IN THE CASE OF DIO V PARDICO?
- The element of STATE PARTICIPATION.
- This hall mark of state participation differentiates
from an enforced disappearance case from ordinary
case of a missing person.
- In any case of enforced disappearance you must be
able to make that connection that the disappearance
is with state participation meaning may kinalaman
ang gobiyerno. Pagwala yan it is a simple case of a
missing person.
- If it is perpetrated by a private person other than a
political organization it can be taken out of the
definition of enforced disappearance.
- Very important ang state participation.
ORDINARY CASE OF DISAPPEARANCE vs
ENFORCED DISAPPEARANCE
WRIT OF AMPARO
You have there a writ of amparo where it originated, what is
the concept all of these are explained in the case of:
SECRETARY OF NATIONAL DEFENSE v MANALO
- For lack of material time you might as well read the
case.
NATURE OF AMPARO RULE
A.M. No. 07-9-12-SC (WRIT OF AMPARO)
Section 1. Petition. - The petition for a writ of amparo is a
remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful
act or omission of a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
WHAT RIGHTS ARE PROTECTED BY THE AMPARO RULES?
PROTECT CONSTITUTIONAL RIGHT TO LIFE, LIBERTY AND
SECURITY
WHEN DOES THE PROTECTION COME IN?
- VIOLATION OF THESE RIGHTS; or
- THREAT OF VIOLATION OF HIS RIGHTS
UNLIKE IN HABEAS CORPUS WHAT IS BEING PROTECTED
THERE IS THE RIGHT TO LIBERTY BUT IN THE AMPARO RULE
WIDER IN SCOPE BECAUSE RIGHT TO LIFE, LIBERTY,
SECURITY OR THREATS THEREOF. Pati threats kasali.
WRIT OF HABEAS CORPUS WRIT OF AMPARO
RIGHT TO LIBERTY RIGHT TO LIFE, LIBERTY AND
SECURITY
Writ of Amparo
- This TOOK EFFECT on OCTOBER 24, 2007
The NATURE OF THE WRIT will not pin point criminal
culpability but it determines RESPONSIBILITY OR
ACCOUNTABILITY. So there is no judgment here of
administrative liability or criminal liability but only responsibility
or accountability for the enforced disappearance or extra legal
killing.
WHAT DO YOU MEAN BY RESPONSIBILITY?
RESPONSIBILITY- extent of actors – sino ang may
kagagawan at ano ang extent ng participation ng mga taong
yan. Who are the persons involve – yun lang
- “Responsibility refers to the extent the actors have
been established by substantial evidence to have
participated in whatever way, by action or omission,
in an enforced disappearance, as a measure of
remedies this Court shall craft, among them, the
directive to file the appropriate criminal and civil cases
against the responsible parties in the proper courts.
WHAT DO YOU MEAN BY ACCOUNTABILITY?
ACCOUNTABILITY- ano yung measure of remedies that
should be addressed, sino yung dapat may i-disclose, kumilos
to address the issue
- Accountability refers to the measure of remedies that
should be addressed to those who exhibited
involvement in the enforced disappearance without
bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearance
and who carry the burden of disclosure; or those who
carry, but have failed to discharge, the burden of
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
extraordinary diligence in the investigation of the
enforced disappearance.”
- Not accountability na you will be Liable for the act
itselff Amparo that is a different concept.
So when you talk of WRIT OF AMPARO it does not determine
liability criminal, administrative or civil but pin points
responsibility or accountability of the persons involved.
The issuance of the writ of amparo is justified by the goal of
divesting enforced disappearance so that the life of the
persons preserved and liberty and security be restored.
WHO MAY FILE THE PETITION?
Sec. 2. Who May File. - The petition may be filed by the
aggrieved party or by any qualified person or entity in the
following order:
1. Any member of the immediate family, namely: the spouse,
children and parents of the aggrieved party;
2. Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of consanguinity
or affinity, in default of those mentioned in the preceding
paragraph; or
3. Any concerned citizen, organization, association or
institution, if there is no known member of the immediate
family or relative of the aggrieved party.
The filing of a petition by the aggrieved party suspends the
right of all other authorized parties to file similar petitions.
Likewise, the filing of the petition by an authorized party on
behalf of the aggrieved party suspends the right of all others,
observing the order established herein.
- Aggrieved party kung buhay pa siya
- Any immediate member of the family of the aggrieved
party
- Any ascendant, descendant or collateral relative of
the aggrieved party within the fourth civil degree of
consanguinity or affinity
- Any concerned citizen, organization, association or
institution
- So practically any body who can show interest can be
petitioner in a an amparo petition
But the filing of the aggrieved party will suspend all the others
WHO MAY BE RESPONDENTS?
AGAINST WHOM?
- GOVERNMENT OFFICERS
HOW ABOUT THE PRESIDENT?
- The president is immune from suit during his tenure
- POLITICAL ORGANIZATION for enforced
disappearances can be a respondent
Sec. 3. Where to File. - The petition may be filed on any day
and at any time with the Regional Trial Court of the place
where the threat, act or omission was committed or any of its
elements occurred, or with the Sandiganbayan, the Court of
Appeals, the Supreme Court, or any justice of such courts. The
writ shall be enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge thereof,
the writ shall be returnable before such court or judge.
When issued by the Sandiganbayan or the Court of Appeals or
any of their justices, it may be returnable before such court or
any justice thereof, or to any Regional Trial Court of the place
where the threat, act or omission was committed or any of its
elements occurred.
When issued by the Supreme Court or any of its justices, it
may be returnable before such Court or any justice thereof, or
before the Sandiganbayan or the Court of Appeals or any of
their justices, or to any Regional Trial Court of the place where
the threat, act or omission was committed or any of its
elements occurred.
WHEN?
- ANY TIME
- ANY DAY
WHERE?
Almost the same with habeas corpus pero may dagdag lang
- RTC
- Sandiganbayan SB (nadagdag)
- CA
- SC
RETURN
- the same mechanic kung kanino siya returnable
- like I said it is very important kung ano nakalagay
doon kung kanino returnable ang writ because that is
the body or the entity who will conduct the rest of the
proceedings
NO FILING FEE
Sec. 4. No Docket Fees. - The petitioner shall be exempted
from the payment of the docket and other lawful fees when
filing the petition. The court, justice or judge shall docket the
petition and act upon it immediately.
Is there filing fee? None
CONTENTS OF PETITION
Sec. 5. Contents of Petition. - The petition shall be signed and
verified and shall allege the following:
1. The personal circumstances of the petitioner;
2. The name and personal circumstances of the respondent
responsible for the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be described by an
assumed appellation;
3. The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or
omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in
supporting affidavits;
4. The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of
the investigation, together with any report;
5. The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the aggrieved party and
the identity of the person responsible for the threat, act or
omission; and
6. The relief prayed for.
The petition may include a general prayer for other just and
equitable reliefs.
WHAT SHOULD YOU ALLEGE IN THE PETITION?
- The personal circumstances of the petitioner;
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
- The name and personal circumstances of the
respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain, the
respondent may be described by an assumed
appellation;
- The right to life, liberty and security of the aggrieved
party violated or threatened with violation by an
unlawful act or omission of the respondent, and how
such threat or violation is committed with the
attendant circumstances detailed in supporting
affidavits;
So, anong kalseng right ang na violate or threat? You have to
spell it out in your allegation
Take note under Section 5 (c) it says here, “and how such
threat or violation is committed with the attendant
circumstances detailed in supporting affidavits.” – mag execute
ka pa ng affidavits ilagay mo pa kung ano yung mga specific
attendant circumstances
IS THIS REASONABLE, CAN YOU REALLY COMPLY WITH THIS
REQUIREMENT THE AFFIDAVIT DETAILING THE ATTENDAT
CIRCUMSTANCES? WHAT KIND OF DETAIL SHOULD YOU PUT
THERE?
- The SC interpretated this requirement as follows: as
in any other initiatory pleading the pleader must state
the ultimate facts constituting the cause of action
omitting evidentiary rules.
Kung ano ang pag detalye mo you don’t have to put there the
evidentiary details just mere ultimate facts. Allegations of
ultimate facts will suffice.
ATTENDANT CIRCUMSTANCES
o ultimate facts only
o omit evidentiary detail
RAZON v TAGITIS
- A case of enforced disappearances
- Precisely hindi nila ma specify paano nag disappear,
how it came about, ano yung facts and circumstances
- There can be no specific details of those
- The SC said that ultimate facts will suffice
- The nature and purpose of the proceeding which
addresses the situation of uncertainty must be taken
into account
- The petitioner may not be able to describe with
certainty how the victim exactly disappeared
- or who actually acted to kindnap or abduct or arrest
him or her
- or if the person is detained because this information
may purposely be hidden or covered up by those
who caused the disappearance
Parang you are dealing with grand conspiracy, naitatago nila
ang detalye, who would advertise it? Who would disclose it?
Who is his right mind would ever do that and implicate
themselves?
If these were agents of the government they will do anything
to hide all these evidence .
- That is why the SC said hindi na kailangan na very
specific as to who, where, what, when, why, basta
maglagay ka lang diyan ng ultimate facts pwede na
that is how the SC interpreted itong Section 5 (c). (sa
akong na search na law kay number 3 siya dili letter
c).
- The SC said that in this type of situation to require
the level of specificity, detail and precision is to
require the level of specificity, detail and precision
that the petitioners apparently want to read into the
Amparo Rule is to make a token gesture of judicial
concern for violations of the constitutional right to life,
liberty and security.
- The test in reading the petition should be to
determine whether it contains the details available to
the petitioner under the circumstances, while
presenting a cause of action showing of violationof
the victims right to life, liberty and security through
State or private party action. The petition should
likewise be read in its totality, rather than in terms of
its isolated component parts, to determine if the
required elements – namely, of the disappearance,
the State or private action, and actual or threatened
violations of the rights to life, liberty or security – are
present.
So kung ano lang yung available details pwede na for as long
as you are able to allege the ultimate facts constituting the
enforced disappearance.
Now take note that in compliance with Section 5 (c) yung
specific attendant circumstance must be set forth for
ENFORCED DISAPPEARANCES dapat kumpleto pa rin ang
ELEMENTS.
DIO v PARDICO
- as pronounced in this case dapat COMPLETE ANG
ELEMENTS
TAKE NOTE THAT IF YOU FAIL TO PUT THERE SUPPORTING
AFFIDAVIT, IS THAT FATAL?
- The SC said that it is not an absolute requirement the
supporting affidavits. The verified petition sufficiently
detailing the facts relied upon is substantial
compliance. VERIFIED naman ang petition if walang
supporting affidavits, pwede na.
OTHER THINGS YOU SHOULD ALLEGE:
SECTION 5 continuations
- The investigation conducted, if any, specifying the
names, personal circumstances, and addresses of the
investigating authority or individuals, as well as the
manner and conduct of the investigation, together
with any report;
- The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the aggrieved
party and the identity of the person responsible for
the threat, act or omission; and
- The relief prayed for.
- The petition may include a general prayer for other
just and equitable reliefs.
The petition should also allege what was the investigation or
whether there was investigation conducted, the details of the
investigation if applicable, and the actions taken by the
petitioner to determine the fate or the whereabouts of the
aggrieved party.
So it presupposes na mayroong action yung petitioner to
determine kung ano ang nagyari sa victim or the aggrieved
party.
SO WHAT KIND OF ALLEGATION IS REQUIRED AS TO THE
INVESTIGATION?
- The investigation here would refer to the investigation
conducted after the report has been made.
What if you cannot state the results of the investigation that
supposedly followed? What if you merely allege na nagreport
ka pero walang nagyari, walang positive findings or outcome?
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
- The SC said PWEDE NA YUN. Hindi mo naman
kasalanan na hindi sila nagconduct ng investigation,
that should not cause t defeat the petition.
- To require the reponspent to elaborately specify the
names, personal circumstances and addresses of the
investigating authority as well as the manner and
conduct of the investigation is an overly strict
interpretation of Section 5 (d) given the reponsdent
frustrations in securing an investigation with mainly
good reasons.
GENERAL AVERMENT that after you made the report
- no positive result, no meaningful results, no
affirmative relief were elicited from the authorities
- there is substantial compliance
You also have to allege prayed for in the petition.
GROUNDS OF PETITION
TAKE NOTE it could either be:
- EXTRALEGAL KILLING
- ENFORCED DISAPPEARANCE
o for enforced disappearance all elements
must be alleged. Hindi pwede na isang
element lang, like the person is missing. All
the elements must be alleged.
INVALID GROUNDS
- trespass to property
- lack of coercion to accept invitation
- mere anticipation of harassing suits and a possible
violence
- uncertain grounds
- threat that cease to exist
LOZADA v GMA
- invalid ground - threat that cease to exist
- remember the whistle blower in ZTE scandal
- he was allegedly abducted by elements of the State
when he arrived from Hongkong
- there were 2 petitions filed:
o 1. Petition for habeas corpus,
o 2. Writ of Amparo
- both were entertained
- yung Amparo he was endorsed to certain religious
group who had him under care and custody
- the ruling of the SC on his Amparo petition is that the
threat had already ceased to exist
- this was ruled in 2012, obviously wala na si Gloria
Macapagal-Arroyo sa administration
ISSUANCE OF WRIT
Sec. 6. Issuance of the Writ. - Upon the filing of the petition,
the court, justice or judge shall immediately order the issuance
of the writ if on its face it ought to issue. The clerk of court
shall issue the writ under the seal of the court; or in case of
urgent necessity, the justice or the judge may issue the writ
under his or her own hand, and may deputize any officer or
person to serve it.
The writ shall also set the date and time for summary hearing
of the petition which shall not be later than seven (7) days
from the date of its issuance.
Like in the case of habeas corpus petition, this is a case of
issue the writ now, hearing later. Upon filing of the petition
pwede na i-issue and writ as long as there is sufficient basis in
the allegation in the petition.
That is why very important ang allegations that is a make or
break for you. On the basis of the allegation the writ can be
issued. The same this with habeas corpus petition.
Kungpalpak ang allegation mo diyan, wala naman elements,
why would the court issue the writ? So very crucial in drafting
the petition because that alone will be the basis for the
issuance of the writ. All elements, everything that you need to
allege must have been alleged in your petition otherwise the
court can dismiss the petition outright kapag walang klarong
cause of action na nakalagay diyan.
Take note that the issuance of the writ of Amparo does not
require prior hearing kaya nga issue now, hear later ito the
same as the writ of habeas corpus for as long as the petition
sufficiently alleges grounds and the cause for the issuance of
the writ the court can issue the writ. That was clarified in the
case of DE LIMA v GATDULA.
WHO MAY ISSUE?
- Clerk of Court
- Or in case of an urgent necessity the justice/ judge in
his own hand writing issue the writ of amparo
CONTENTS OF WRIT
- The writ will now state the date and time on the
summary hearing of the petition.
- Ito na yung sinasabi natin “Issue now, hear later.”
- Sa writ mismo nakalagay kung kalian i-he-hear yung
petition.
- There ia a time frame for the hearing of the petition.
- Hearing not later than 7 days from the date of the
issuance.
- So within 7 days magkakaroon na ng hearing.
WHEN THE COURT ISSUE THE WRIT
- That is NOT A DECISION for the petition
- The issuance of the writ IS AN INTERLOCUTORY
ORDER
- Hence, not appealable
Very important ito, when the court issue the writ THAT IS NOT
A DECISION, if you want to contest that, not an appeal
because it is an interlocutory order. Hindi pwede i-question on
appeal because it is not yet a final order.
DO NOT CONFUSE:
- ISSUANCE OF THE WRIT OF AMPARO
- with
- GRANT OF THE PRIVILEGE OF THE WRIT OF
AMPARO
The order of the WRIT OF AMPARO is not the same with the
order GRANTING THE PRIVILEGE OF THE WRIT OF AMPARO
ISSUANCE OF THE WRIT GRANT OF THE PRIVILEGE
OF AMPARO OF THE WRIT OF AMPARO
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

INTERLOCUTORY ORDER A DECISION
- The writ of amparo is
issued the moment the
court receives the
petition.
- after the hearing has
been conducted the
court will render a
decision.
- If the court the grants
the petition then that is
a decision granting the
order of the privilege of
the writ of amparo
- This is issued at the
end of the proceedings
- It includes the
availment of the entire
procedure outlined
under the AMPARO
RULE
shall further state the actions that have been or will still be
taken:
1. to verify the identity of the aggrieved party;
2. to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which
may aid in the prosecution of the person or persons
responsible;
3. to identify witnesses and obtain statements from them
concerning the death or disappearance;
4. to determine the cause, manner, location and time of death
or disappearance as well as any pattern or practice that may
have brought about the death or disappearance;
5. to identify and apprehend the person or persons involved in
the death or disappearance; and
6. to bring the suspected offenders before a competent court.

SO IF THERE ARE REFUSAL TO ISSUE THE WRIT

Sec. 7. Penalty for Refusing to Issue or Serve the Writ. - A
clerk of court who refuses to issue the writ after its allowance,
or a deputized person who refuses to serve the same, shall be
punished by the court, justice or judge for contempt without
prejudice to other disciplinary actions.
- there are several sanctions
o CONTEMPT
o DISCIPLINARY ACTIONS
SERVICE OF WRIT
The return shall also state other matters relevant to the
investigation, its resolution and the prosecution of the case.
A general denial of the allegations in the petition shall not be
allowed.
FORM
- Verified
- With supporting affidavits
In the writ of habeas corpus you ONLY VERIFY the RETURN if
you cannot produce the body of the person detained you have
to verify it.

Sec. 8. How the Writ is Served. - The writ shall be served upon
the respondent by a judicial officer or by a person deputized
by the court, justice or judge who shall retain a copy on which
to make a return of service. In case the writ cannot be served
personally on the respondent, the rules on substituted service
shall apply.
- To respondent
- By judicial officer or by a person deputized by the
court, justice or judge
MODE OF SERVICE
- PERSONAL or
- SUBSTITUTED
Respondent must file a return
RETURN
Sec. 9. Return; Contents. - Within seventy-two (72) hours after
service of the writ, the respondent shall file a verified written
return together with supporting affidavits which shall, among
other things, contain the following:
But if you have a writ of amparo LAHAT ng RETURN must be
verified.
VENUE
- Must be filed WITHIN 72 HOURS AFTER SERVICE OF
THE WRIT
Take note that in an AMPARO PROCEEDINGS NO ANSWER IS
REQUIRED. This is not a civil case that require the filing of an
answer, the filing of the RETURN that TAKES the PLACE OF AN
ANSWER. Therefore the RETURN is the responsive pleading in
an AMAPRO PROCEEDINGS.
PROHIBITED MEMORANDUM
- Since the RETURN is considered as a responsive
pleading it cannot be substituted by a filing of a
memorandum which is prohibited under the AMPARO
RULE.
The RETURN must be filed BEFORE the designated time and
date for hearing NOT AFTER.
WHY? because it is a repsonsive pleading that allows the court
to frame the issues of the petition that will join the issues.
CONTENTS OF RETURN

1. The lawful defenses to show that the respondent did not
violate or threaten with violation the right to life, liberty and
security of the aggrieved party, through any act or omission;
2. The steps or actions taken by the respondent to determine
the fate or whereabouts of the aggrieved party and the person
or persons responsible for the threat, act or omission;
- LAWFUL DEFENSES
- STEPS/ ACTIONS TAKEN by the respondent
- All relevant information in respondents possession
pertaining to the cause of the petition
- If the respondent is a public official or employee, the
return shall further state the actions that have been
or will still be taken:

3. All relevant information in the possession of the respondent
pertaining to the threat, act or omission against the aggrieved
party; and
4. If the respondent is a public official or employee, the return
o to verify the identity of the aggrieved party;
o to recover and preserve evidence related to
the death or disappearance of the person
identified in the petition which may aid in the
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
prosecution of the person or persons
responsible;
o to identify witnesses and obtain statements
from them concerning the death or
disappearance;
o to determine the cause, manner, location
and time of death or disappearance as well
as any pattern or practice that may have
brought about the death or disappearance;
o to identify and apprehend the person or
persons involved in the death or
disappearance; and
o to bring the suspected offenders before a
competent court.
So it is not limited to what has been done but to what the
respondent will propse to do in respect to the incident alleged
in the petition.
- The return shall also state other matters relevant to
the investigation, its resolution and the prosecution of
the case.
GENERAL DENIAL IS NOT ALLOWED
- A general denial of the allegations in the petition shall
not be allowed.
Sec. 10. Defenses not Pleaded Deemed Waived. - All defenses
shall be raised in the return, otherwise, they shall be deemed
waived.
- The return has to be complete because as we said it
is the responsive pleading.
FAILURE TO FILE A RETURN
Sec. 12. Effect of Failure to File Return. - In case the
respondent fails to file a return, the court, justice or judge
shall proceed to hear the petition ex parte.
- The court can proceed to hear ex parte without the
appearance of the repondent
REFUSAL TO MAKE RETURNS
- Contempt. The respondent will be cited in contempt.
There can be PRELIMINARY CONFERENCE to simplify the
issues or determine possibilities obtaining stipulations.
The hearing can be a matter of hearing day to day until
completed.
NATURE OF PROCEDURE
- Special Proceeding
DE LIMA v GATDULA
- Nature of proceeding is a SPECIAL PROCEEDING (that
is why we are taking it up in our class)
- it is to establish a status, a right or a particular fact
- due to the urgent nature of this controversy the
procedure was advised to afford swift but decisive
relief
- ito yung mabilisan na proceeding similar to a writ of
habeas corpus
Can you apply the rule on Summary procedure, swift man
kaya, eh di bilisan natin?
- The SC said no.
- Rule on Summary Procedure does not apply to writ of
amparo
- The Rule on Summary Procedure applies only to
certain criminal or civil cases before the MTC, MeTC,
MTCC. Ano yun? Rule 70, UNLAWFUL DETAINER,
FORCIBLE ENTRY, yun very clear, but for AMPARO
PETITIONS YOU DO NOT APPLY/
WHY?
- Because it is cognizable by the RTC hindi naman ito
under MTC. MTC has no power to entertain Amparo
Petitions similar to the habeas corpus. RTC and
pinakamababa mo diyan na korte that can entertain
the petition.
PROHIBITED PLEADINGS
Sec. 11. Prohibited Pleadings and Motions. - The following
pleadings and motions are prohibited:
1. Motion to dismiss;
2. Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or
interim relief orders; and
12. Petition for certiorari, mandamus or prohibition against any
interlocutory order.
- Despite the fact that the rule on summary procedure
does not apply yet the AMPARO RULE adopts the
same prohibited pleadings enumerated on the Rule on
Summary Procedure.
- If only to ensure and expedite the proceeding under
the amparo rule.
INTERIM RELIEFS
Sec. 14. Interim Reliefs. - Upon filing of the petition or at
anytime before final judgment, the court, justice or judge may
grant any of the following reliefs:
(a) Temporary Protection Order. - The court, justice or judge,
upon motion or motu proprio, may order that the petitioner or
the aggrieved party and any member of the immediate family
be protected in a government agency or by an accredited
person or private institution capable of keeping and securing
their safety. If the petitioner is an organization, association or
institution referred to in Section 3(c) of this Rule, the
protection may be extended to the officers involved.
The Supreme Court shall accredit the persons and private
institutions that shall extend temporary protection to the
petitioner or the aggrieved party and any member of the
immediate family, in accordance with guidelines which it shall
issue.
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
The accredited persons and private institutions shall comply
with the rules and conditions that may be imposed by the
court, justice or judge.
(b) Inspection Order. - The court, justice or judge, upon
verified motion and after due hearing, may order any person in
possession or control of a designated land or other property, to
permit entry for the purpose of inspecting, measuring,
surveying, or photographing the property or any relevant
object or operation thereon.
The motion shall state in detail the place or places to be
inspected. It shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or
of the privileged nature of the information, the court, justice or
judge may conduct a hearing in chambers to determine the
merit of the opposition.
The movant must show that the inspection order is necessary
to establish the right of the aggrieved party alleged to be
threatened or violated.
The inspection order shall specify the person or persons
authorized to make the inspection and the date, time, place
and manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties. The
order shall expire five (5) days after the date of its issuance,
unless extended for justifiable reasons.
(c) Production Order. - The court, justice or judge, upon
verified motion and after due hearing, may order any person in
possession, custody or control of any designated documents,
papers, books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or electronic form, which
constitute or contain evidence relevant to the petition or the
return, to produce and permit their inspection, copying or
photographing by or on behalf of the movant.
The motion may be opposed on the ground of national security
or of the privileged nature of the information, in which case
the court, justice or judge may conduct a hearing in chambers
to determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to
protect the constitutional rights of all the parties.
(d) Witness Protection Order. - The court, justice or judge,
upon motion or motu proprio, may refer the witnesses to the
Department of Justice for admission to the Witness Protection,
Security and Benefit Program, pursuant to Republic Act No.
6981.
The court, justice or judge may also refer the witnesses to
other government agencies, or to accredited persons or private
institutions capable of keeping and securing their safety.
There are also interim reliefs:
- PROTECTION ORDER
- INSPECTION ORDER
- PRODUCTION ORDER
- WITNESS PROTECTION ORDER
WHEN DO YOU AVAIL OF THIS?
- Any time upon the filing of the petition
- But before the rendition of final judgment
TEMPORARY PROTECTION ORDER
- It extends not only to the petitioner or the aggrieved
party but also t the member of his immediate family
or officers concerned
- Here the protection will be provided by the
government or by an accredited person or private
institution capable of keeping and securing their
safety
- Can be issueMotu proprio or upon motion
INSPECTION ORDER
- Can only be granted upon the VERIFIED MOTION and
HEARING
- Not MOTU PROPRIO
- state in details the places to be inspected supported
by affidavits or testimonies of witnesses
- the hearing may be done in chambers if the motion is
opposed on the grounds of national security or of the
privileged nature of the information
- TO WHOM ISSUE? To any person in possession and
control designated land or property
- It covers entry into property inspecting, measuring,
surveying, or photographing the property or any
relevant object or operation thereon
- If you are going to question the issuance of the
inspection order you can do so under petition for
certiorari under Rule 65
- Take not that it is only good for 5 days from issuance,
unless, extended for justifiable reasons
- It must specify the person authorize to conduct the
petition, the date and time and place and manner of
inspection and such other conditions as the court may
impose
INSPECTION ORDER PERTAINS MOSTLY TO:
- Real property
- Or those that cannot be brought to court
- EXAMPLE THE BACKHOE od AMPATUAN gusto mo i-
inspect alangan naman dalahin mo yan sa korte you
go and obtain an inspection order
PRODUCTION ORDER
- Upon VERIFIED MOTION
- There must be HEARING, cannot be granted motu
proprio
- If it is opposed on the ground of national security or
of the privileged nature of the information the hearing
in chamber will be conducted
- To whom issued? To any order any person in
possession, custody or control of any designated
documents, papers, books, accounts, letters,
photographs, objects or tangible things, or objects in
digitized or electronic form.
PRODUCTION ORDER PERTAINS MOSTLY TO:
- documents/ tangible properties
- Things brought to court subject to be produced in
court
The court can prescribe other conditions to protect the
constitutional rights of all parties involved.
SECRETARY OF NATIONAL DEFENSE v MANALO
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
- The respondents here said that a production order is
tantamount to a search warrant and they are
objecting to this production order.
- The SC said NO, you are wrong. The constitutional
provision on SEARCH WARRANT is a protection of the
people from the unreasonable intrusion of the
government, not a protection of the government from
the demand of the people.
- Instead, the AMPARO production order may be
likened to the production of documents or things
under Section 1, Rule 27 of the Rules of Civil
Procedure.
- Parang mode of discover ang production order, not
akin to search warrant whick seeks to protect the
right and privacy of private individuals against the
government
PRODUCTION ORDER
- Like a mode of discovery
- Not akin to search warrant
WITNESS PROTECTION ORDER
- Can be issued MOTU PROPRIO or UPON MOTION
- Both Temporary Protection Order and Witness
Protection Order can be issued Motu Proprio
- There would be referral of witness to the DOJ to be
admitted to the witness protection program of the
government
- Here the witnesses will be referred to government
agency capable of keeping and securing their safety.
INTERIM RELIEFS
WHO MAY AVAIL?
- Petitioner, all of them or
- Respondent Only:
o Inspection order
o Production order
Obviously the government cannot avail protection
order and witness protection order
WHAT IS THE QUANTUM OF PROOF REQUIRED?
- Only substatial evidence NOT preponderance of
evidence
BURDEN OF PROOF
Sec. 17. Burden of Proof and Standard of Diligence Required.
- The parties shall establish their claims by substantial
evidence.
The respondent who is a private individual or entity must
prove that ordinary diligence as required by applicable laws,
rules and regulations was observed in the performance of
duty.
The respondent who is a public official or employee must
prove that extraordinary diligence as required by applicable
laws, rules and regulations was observed in the performance
of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed to
evade responsibility or liability.
WHO HAS THE BURDEN OF PROOF? RESPONDENT
- Private individual or entity
o must prove that ORDINARY DILIGENCE as
required by applicable laws, rules and
regulations was observed in the performance
of duty.
- Public official or employee
o must prove that EXTRAORDINARY
DILIGENCE as required by applicable laws,
rules and regulations was observed in the
performance of duty.
o In amparo petition NO PRESUMPTION OF
REGULAR PERFORMANCE OF OFFICIAL
DUTY.
o Unlike in habeas copus petition if the
detention is by virtue of WARRANT OF
COMMITMENT then the PRESUMPTION OF
REGULARITY IN THE PERFORMANCE OF
OFFICIAL DUTY APPLIES.
If you are a public o you cannot invoke the presumption of
regularity in the performance of offical duty.
WHAT HAPPENS IF THE PUBLIC RESPONDENT HERE FAILED
TO PROVE THE OBSERVANCE OF EXTRAORDINARY
DILIGENCE? THUS THAT SHIFT THE BURDEN OF THE
RESPONDENT?
LOZADA v GMA
- The SC said that failure to prove the observance of
extraordinary diligence in the performance of duty
does not result in the automatic grant of the privilege
of the AMPARO WRIT. It does not relieve the
petitioner from establishing his or her claim by
substantial evidence.
- Thus, in Amparo actions, petitioners must establish
their claims by suctantial evidence, and they cannot
merely rely on the supposed failure of respondents to
prove either their defences or their exercise of
extraordinary diligence. In this case, the totality of
the evidence presented by petitioners fails to meet
the requisite evidentiary threshold, and the privilege
of the writ of Amparo has already been rendered
moot and academic by the cessation of the restraint
to Lozada’s liberty.
Like any other case the burden of proof is really on the
PETITIONER merong lang minimum proof requirements
on the respondents but even if they fail to discharge that
still the burden of proof is on the petitioner to prove the
allegations in the petition.
So in enforced disappearances, petitioner the burden of
proving by substantial evidence the indispensable element of
government participation. The proof of disappearance is not
enough.
DIO v PARDICO: As thus dissected, it is now clear that for
the protective writ of amparo to issue, allegation and proof
that the persons subject thereof are missing are not enough. It
must also be shown and proved by substantial evidence that
the disappearance was carried out by, or with the
authorization, support or acquiescence of, the State or a
political organization, followed by a refusal to acknowledge the
same or give information on the fate or whereabouts of said
missing persons, with the intention of removing them from the
protection of the law for a prolonged period of time. Simply
put, the petitioner in an amparo case has the burden of
proving by substantial evidence the indispensable element of
government participation.
PERIOD TO DECIDE
Once the hearing is terminated the court has 10
days to decide the case from the time it is
submitted for decision
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
JUDGMENT
Sec. 18. Judgment. - The court shall render judgment within
ten (10) days from the time the petition is submitted for
decision. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the
writ and such reliefs as may be proper and appropriate;
otherwise, the privilege shall be denied.
- If the allegations in the petition are proven by
substantial evidence then the court shall GRANT THE
PRIVILEGE OF THE WRIT and such RELIEFS
otherwise it shall be denied.
After hearing dito na tayo, whether the court issue a judgment
granting the privilege of writ om amparo. This is the judgment
or decision that is a FINAL ORDER that can be appealed.
For it to be a VALID JUDGMENT:
DE LIMA v GATDULA (2013 CASE -READ)
- The SC said it must be CAPABLE OF ENFORCEMENT.
Anong ibig sabihin nun?
- The judgment should contain measures which the
judge views as essential for the continued
protection of the petitioner in the Amparo case.
These measures must be detailed enough so that the
judge may be able to verify and monitor the actions
taken by the respondents. It is this judgment that
could be subject to appeal to the Supreme Court via
Rule 45. After the measures have served their
purpose, the judgment will be satisfied.
In Amparo cases, this is when the threats to the
petitioner’s life, liberty and security cease to exist as
evaluated by the court that renders the judgment.
Parenthetically, the case may also be terminated
through consolidation should a subsequent case be
filed – either criminal or civil. Until the full satisfaction
of the judgment, the extraordinary remedy
of Amparo allows vigilant judicial monitoring to ensure
the protection of constitutional rights.
So dapat detalyado kung ano yung kailangan na gawin ng
respondents.
- The judgment should detail the required acts from the
respondents that will mitigate, if not totally eradicate,
the violation of or the threat to the petitioner's life,
liberty or security.
- A JUDGMENT WHICH SIMPLY GRANTS "THE
PRIVILEGE OF THE WRIT" CANNOT BE EXECUTED.It
is tantamount to a failure of the judge to intervene
and grant judicial succor to the petitioner. Petitions
filed to avail of the privilege of the Writ
ofAmparo arise out of very real and concrete
circumstances. Judicial responses cannot be as
tragically symbolic or ritualistic as "granting the
privilege of the Writ of Amparo."
So this case of DE LIMA v GATDULA decided in 2013 I
advised you to read it yourself. This was very informative
written by Justice Leonen and he made differentiation between
WRIT OF AMPARO and PRIVILEGE OF THE WRIT OF AMPARO,
which one is a better one??? (inaudible kung better one ba
jud), which one is interlocutory order.
WHAT KIND OF JUDGMENT IS CONSIDERED VALID IN AN
AMPARO PETITION?
- If the judgment merely states in the dispositive
portion that the privilege of the writ of amparo is
granted without award that is a void judgment that is
not valid judgment in an amparo petition.
- To be valid there has to be a detailed set of
actions that the respondents should perform so
that is capable of being verified by the judge, whether
or not the prescribed actions were followed and that
is the only way that you can impose and execute
judgment otherwise there is no basis to execute the
judgment.
APPEAL
Sec. 19. Appeal. - Any party may appeal from the final
judgment or order to the Supreme Court under Rule 45. The
appeal may raise questions of fact or law or both.
The period of appeal shall be five (5) working days from the
date of notice of the adverse judgment.
The appeal shall be given the same priority as in habeas
corpus cases.
So assuming that the judgment is valid, tama ang pagkagawa
on the dispositive portion there is a detailed actions expected
of the respondents needs to perform, HOW DO YOU APPEAL?
Is it appealable? YES
- Any party may appeal from the final judgment or
order to the Supreme Court under Rule 45. The
appeal may raise questions of fact or law or both.
- Within 5 working days from the date of notice of the
adverse judgment. In a habeas corpus petition 2 days
or 48 hours to appeal, in an amparo petition 5
working days.
ARCHIVE, REVIVAL AND DISMISSAL
Sec. 20. Archiving and Revival of Cases. - The court shall not
dismiss the petition, but shall archive it, if upon its
determination it cannot proceed for a valid cause such as the
failure of petitioner or witnesses to appear due to threats on
their lives.
A periodic review of the archived cases shall be made by the
amparo court that shall, motu proprio or upon motion by any
party, order their revival when ready for further proceedings.
The petition shall be dismissed with prejudice upon failure to
prosecute the case after the lapse of two (2) years from notice
to the petitioner of the order archiving the case.
The clerks of court shall submit to the Office of the Court
Administrator a consolidated list of archived cases under this
Rule not later than the first week of January of every year.
You have here ARCHIVING of PETITIONS:
- If the petition cannot proceed for lack of witnesses,
then it can be archived.
It can be REVIVED later on
- For further proceeding
DISMISSAL
- without prejudice after 2 years from notice to the
petitioner of the order archiving the case
OTHER ACTIONS
Sec. 21. Institution of Separate Actions. - This Rule shall not
preclude the filing of separate criminal, civil or administrative
actions.
Sec. 22. Effect of Filing of a Criminal Action. - When a criminal
action has been commenced, no separate petition for the writ
shall be filed. The reliefs under the writ shall be available by
motion in the criminal case.
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Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

actually pending in court, actually filed in

The procedure under this Rule shall govern the disposition of court.
the reliefs available under the writ of amparo.
SITUATION:
Sec. 23. Consolidation. - When a criminal action is filed - Supposing the PETITION WAS COMMENCED FIRST
subsequent to the filing of a petition for the writ, the latter
shall be consolidated with the criminal action. - Tapos later nagfile ka ng CRIMINAL ACTION
- Like in the case pending pa sa preliminary
When a criminal action and a separate civil action are filed investigation hindi ka pa pwede maka avail ng writ of
subsequent to a petition for a writ of amparo, the latter shall amparo by mere motion kasi hindi pa yan court eh
be consolidated with the criminal action.
- What will do is is to file a separate case in court,
After consolidation, the procedure under this Rule shall pending yun na file na itong criminal case in court
continue to apply to the disposition of the reliefs in the WHAT WILL HAPPEN NOW THERE ARE TWO PETITIONS
petition. INVOLVING THE SAME SET OF FACTS?

Sec. 24. Substantive Rights. - This Rule shall not diminish, - That is the time under Section 22 that
increase or modify substantive rights recognized and protected CONSOLIDATION of amparo petition and criminal
by the Constitution. action can be made.
- PagnaCONSOLIDATE nay an AMAPARO PETITION in
Sec. 25. Suppletory Application of the Rules of Court. - The so far as the amparo incident is concerned it would be
Rules of Court shall apply suppletorily insofar as it is not governed by the AMPARO RULE not the rule on
inconsistent with this Rule. criminal procedure.
Sec. 26. Applicability to Pending Cases. - This Rule shall govern - Take note also that the provisions of the Rules of
cases involving extralegal killings and enforced disappearances Court can be applied suppletorily if not inconsistent
or threats thereof pending in the trial and appellate courts. with the amparo rule.
I advise that you should read the case of SECRETARY v
DOES THE FILING OF WRIT OF AMPARO PETITION MANALO because it deals with origin, history, nature, the
PRECLUDES THE FILING OF ADMINISTRATIVE, CRIMINAL OR legal concept, the basis of the Amparo rule.
CIVIL ACTION AGAINST THE SAME RESPONDENTS?
- NO. Amparo Writ is a PREROGATIVE WRIT not a civil,
criminal or administrative suit.
WHAT IS THE RULE IF THERE ARE OTHER ACTIONS FILED?
CAN THESE ACTIONS PROCEED INDEPENDENTLY AND
SEPARATELY?
RULES
- CRIMINAL ACTION COMMENCED FIRST
o No need to file a separate action for the
issuance of the writ of amparo
o File a MOTION in the same criminal case for
the issuance of the writ of amparo if you
have grounds for the issuance
o But the DISPOSITION of the motion for the
issuance of the writ of amparo is GOVERNED
BY AMPARO RULES not by the law on
criminal procedure.
o Take note also that the criminal action we
are referring to here is the one already filed
in court, it is a COURT ACTION.
- If it is a CRIMINAL CASE FILED IS STILL
PENDING PRELIMINARY INVESTIGATION in
the DOJ obviously you cannot file a motion there for
the issuance of the writ of amparo, you cannot yet
avail of that.
o So your recourse would be to go to court
and file a SEPARATE PETITION for the
issuance of the writ of Amparo because the
only way you can avail of it in the same
criminal case is when the criminal case is
actually pending in court, actually filed in
court. That was the ruling of the court in the
case of REYES v GONZALES.
REYES v GONZALES
o The only way you can avail of it in the same
criminal case is when the criminal case is

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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
WRIT OF HABEAS DATA
A. M. No. 08-1-16-SC
SECTION 1. Habeas Data. - The writ of habeas data is a
remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act
or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family,
home and correspondence of the aggrieved party.
SEC. 2. Who May File. - Any aggrieved party may file a
petition for the writ of habeas data. However, in cases of
extralegal killings and enforced disappearances, the petition
may be filed by:
(a) Any member of the immediate family of the
aggrieved party, namely: the spouse, children and
parents; or
(b) Any ascendant, descendant or collateral relative of
the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
SEC. 3. Where to File. - The petition may be filed with the
Regional Trial Court where the petitioner or respondent
resides, or that which has jurisdiction over the place where the
data or information is gathered, collected or stored, at the
option of the petitioner.
The petition may also be filed with the Supreme Court or the
Court of Appeals or the Sandiganbayan when the action
concerns public data files of government offices.
SEC. 4. Where Returnable; Enforceable. - When the writ
is issued by a Regional Trial Court or any judge thereof, it shall
be returnable before such court or judge.
When issued by the Court of Appeals or the Sandiganbayan or
any of its justices, it may be returnable before such court or
any justice thereof, or to any Regional Trial Court of the place
where the petitioner or respondent resides, or that which has
jurisdiction over the place where the data or information is
gathered, collected or stored.
When issued by the Supreme Court or any of its justices, it
may be returnable before such Court or any justice thereof, or
before the Court of Appeals or the Sandiganbayan or any of its
justices, or to any Regional Trial Court of the place where the
petitioner or respondent resides, or that which has jurisdiction
over the place where the data or information is gathered,
collected or stored.
The writ of habeas data shall be enforceable anywhere in the
Philippines.
Sec. 5. Docket Fees. - No docket and other lawful fees shall
be required from an indigent petitioner. The petition of the
indigent shall be docked and acted upon immediately, without
prejudice to subsequent submission of proof of indigency not
later than fifteen (15) days from the filing of the petition.
SEC. 6. Petition. - A verified written petition for a writ
of habeas data should contain:
(a) The personal circumstances of the petitioner and
the respondent;
(b) The manner the right to privacy is violated or
threatened and how it affects the right to life, liberty
or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner
to secure the data or information;
(d) The location of the files, registers or databases,
the government office, and the person in charge, in
possession or in control of the data or information, if
known;
(e) The reliefs prayed for, which may include the
updating, rectification, suppression or destruction of
the database or information or files kept by the
respondent.
In case of threats, the relief may include a prayer
for an order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and
equitable.
SEC. 7. Issuance of the Writ. - Upon the filing of the
petition, the court, justice or judge shall immediately order the
issuance of the writ if on its face it ought to issue. The clerk of
court shall issue the writ under the seal of the court and cause
it to be served within three (3) days from the issuance; or, in
case of urgent necessity, the justice or judge may issue the
writ under his or her own hand, and may deputize any officer
or person serve it.
The writ shall also set the date and time for summary hearing
of the petition which shall not be later than ten (10) work days
from the date of its issuance.
SEC. 8. Penalty for Refusing to Issue or Serve the
Writ. - A clerk of court who refuses to issue the writ after its
allowance, or a deputized person who refuses to serve the
same, shall be punished by the court, justice or judge for
contempt without prejudice to other disciplinary actions.
SEC. 9. How the Writ is Served. - The writ shall be served
upon the respondent by a judicial officer or by a person
deputized by the court, justice or judge who shall retain a copy
on which to make a return of service. In case the writ cannot
be served personally on the respondent, the rules on
substituted service shall apply.
SEC. 10. Return; Contents. - The respondent shall file a
verified written return together with supporting affidavits
within five (5) working days from service of the writ, which
period may be reasonably extended by the Court for justifiable
reasons. The return shall, among other things, contain the
following:
(a) The lawful defenses such as national security,
state secrets, privileged communications,
confidentiality of the source of information of media
and others;
(b) In case of respondent in charge, in possession or
in control of the data or information subject of the
petition;
(i) a disclosure of the data or information
about the petitioner, the nature of such data
or information, and the purpose for its
collection;
(ii) the steps or actions taken by the
respondent to ensure the security and
confidentiality of the data or information;
and,
(iii) the currency and accuracy of the data or
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

information held; and, justice or judge within five (5) working days.
(c) Other allegations relevant to the resolution of the
proceeding.
SEC. 17. Return of Service. - The officer who executed the
A general denial of the allegations in the petition shall not be final judgment shall, within three (3) days from its
allowed. enforcement, make a verified return to the court. The return
shall contain a full statement of the proceedings under the writ
and a complete inventory of the database or information, or
SEC. 11. Contempt. - The court, justice or judge may punish documents and articles inspected, updated, rectified, or
with imprisonment or fine a respondent who commits deleted, with copies served on the petitioner and the
contempt by making a false return, or refusing to make a respondent.
return; or any person who otherwise disobeys or resist a lawful
The officer shall state in the return how the judgment was
process or order of the court.
enforced and complied with by the respondent, as well as all
objections of the parties regarding the manner and regularity
of the service of the writ.
SEC. 12. When Defenses May be Heard in Chambers. - A
hearing in chambers may be conducted where the respondent
invokes the defense that the release of the data or information
SEC. 18. Hearing on Officer’s Return. - The court shall set
in question shall compromise national security or state secrets,
the return for hearing with due notice to the parties and act
or when the data or information cannot be divulged to the
accordingly.
public due to its nature or privileged character.
Sec. 13. Prohibited Pleadings and Motions. - The following
pleadings and motions are prohibited: SEC. 19. Appeal. - Any party may appeal from the final
judgment or order to the Supreme Court under Rule 45. The
(a) Motion to dismiss;
appeal may raise questions of fact or law or both.
(b) Motion for extension of time to file return,
The period of appeal shall be five (5) working days from the
opposition, affidavit, position paper and other
date of notice of the judgment or final order.
pleadings;
The appeal shall be given the same priority as in habeas
(c) Dilatory motion for postponement;
corpus and amparo cases.
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
SEC. 20. Institution of Separate Actions. - The filing of a
(f) Third-party complaint; petition for the writ of habeas data shall not preclude the filing
of separate criminal, civil or administrative actions.
(g) Reply;
(h) Motion to declare respondent in default;
SEC. 21. Consolidation. - When a criminal action is filed
(i) Intervention; subsequent to the filing of a petition for the writ, the latter
(j) Memorandum; shall be consolidated with the criminal action.

(k) Motion for reconsideration of interlocutory orders
or interim relief orders; and
(l) Petition for certiorari, mandamus or prohibition
against any interlocutory order.
When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of habeas data, the petition
shall be consolidated with the criminal action.
After consolidation, the procedure under this Rule shall
continue to govern the disposition of the reliefs in the petition.

SEC. 14. Return; Filing. - In case the respondent fails to file

a return, the court, justice or judge shall proceed to hear the
petition ex parte, granting the petitioner such relief as the
petition may warrant unless the court in its discretion requires
the petitioner to submit evidence.
SEC. 15. Summary Hearing. - The hearing on the petition
shall be summary. However, the court, justice or judge may
call for a preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations and
admissions from the parties.
SEC. 22. Effect of Filing of a Criminal Action. - When a
criminal action has been commenced, no separate petition for
the writ shall be filed. The relief under the writ shall be
available to an aggrieved party by motion in the criminal case.
The procedure under this Rule shall govern the disposition of
the reliefs available under the writ of habeas data.
SEC. 23. Substantive Rights. - This Rule shall not diminish,
increase or modify substantive rights.

SEC. 24. Suppletory Application of the Rules of Court. -

SEC. 16. Judgment. - The court shall render judgment within The Rules of Court shall apply suppletorily insofar as it is not
ten (10) days from the time the petition is submitted for inconsistent with this Rule.
decision. If the allegations in the petition are proven by
substantial evidence, the court shall enjoin the act complained
of, or order the deletion, destruction, or rectification of the
SEC. 25. Effectivity. - This Rule shall take effect on February
erroneous data or information and grant other relevant reliefs
2, 2008, following its publication in three (3) newspapers of
as may be just and equitable; otherwise, the privilege of the
general circulation.
writ shall be denied.
Upon its finality, the judgment shall be enforced by the sheriff
or any lawful officers as may be designated by the court, [PUBLISHED IN THE MANILA BULLETIN, THE

59
 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
PHILIPPINE STAR AND THE PHILIPPINE DAILY
INQUIRER ON 25 JANUARY 2008]
Promulgated by the SC on January 22, 2008
Took effect on February 2, 2008
A. M. No. 08-1-16-SC
The WRIT OF HABEAS DATA is literally “to have the data”.
WHAT IS THE PURPOSE OF THIS RULE?
- To protect the image or privacy of data or information
and freedom of information of the person
- Procedure to safeguard individual freedom
information
We are now in the information technology, social media and
internet is very real, practically governs the life of certain
people. It has a world of its own. There is danger that your
right to information, the right to secure your personal
information, your right to privacy will be violated with just one
click of a mouse.
The writ of habeas data is very timely. When the SC
promulgated this rule it somehow addresses:
- Violation to right to privacy, life, liberty or security;
- Or threatened with violation you can apply the rule on
habeas data.
If it is only to protect purely property or commercial rights
then habeas data will not apply
WHO MAY FILE?
- Aggrieved party
- in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
o Any member of the immediate family of the
aggrieved party, namely: the spouse,
children and parents; or
o Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
pre ceding paragraph; or
WHERE?
- RTC of the place
o Where the respondent resides
o Where the petitioner resides
o Were the data is gathered, protected or
stored
WHEN THE ACTION CONCERNS PUBLIC DATA FILES OF
GOVERNMENT OFFICES
- CA
- SB
- SC
WHERE RETURNABLE?
- The same as the habeas corpus and amparo petitions.
WHERE ENFORCE?
- Anywhere in the Philippines
DOCKET OR FILING FEES
- This time you have to file docket fees
- Except indigent petitioner but you have to submit
some documentary rules to qualify as indigent
petitioner
CONTENTS OF PETITION
- The same
A verified written petition for a writ of habeas data should
contain:
- The personal circumstances of the petitioner and the
respondent;
of - The manner the right to privacy is violated or
threatened and how it affects the right to life, liberty
or security of the aggrieved party;
So take note that your violation to right to privacy
must be in connection with a violation or threat to
violation of your right to life, liberty or security.
So mere violation of your right to privacy without those, so
wala po, kailangan i-connect mo yan to your right to life,
liberty or security or any threatened violation thereof.
- The actions and recourses taken by the petitioner to
secure the data or information;
- The location of the files, registers or databases, the
government office, and the person in charge, in
possession or in control of the data or information, if
known;
- The reliefs prayed for, which may include the
updating, rectification, suppression or destruction of
the database or information or files kept by the
respondent.
- In case of threats, the relief may include a prayer for
an order enjoining the act complained of (prayer for
injunction) ; and
- Such other relevant reliefs as are just and equitable.
ISSUANCE OF WRIT
- Upon the filing of the petition, the court, will issue the
writ of habeas data
The same procedure as WHO MAY ISSUE IT
- The CLERK OF COURT shall issue the writ under the
seal of the court and cause it to be served within
three (3) days from the issuance; or,
- in case of urgent necessity, the JUSTICE OR JUDGE
may issue the writ under his or her own hand, and
may deputize any officer or person serve it.
CONTENTS OF WRIT
- The writ should contain the date and time for
summary hearing of the petition
- which shall not be later than ten (10) work days from
the date of its issuance – habeas data
- for amparo petition shall not be later than 7 days
from issuance
PENALTY FOR REFUSAL TO ISSUE OR SERVE THE WRIT
- A clerk of court who refuses to issue the writ after its
allowance, or
- a deputized person who refuses to serve the same,
o shall be punished by the court, justice or
judge for CONTEMPT
o without prejudice to other DISCIPLINARY
ACTIONS
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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

SERVICE OF WRIT (c) Other allegations relevant to the resolution

of the proceeding.
WHO WILL BE SERVED BY THE WRIT?
- General denial not allowed
- Responent
o A general denial of the allegations in the
WHO WILL SERVE?
petition shall not be allowed.
- by a judicial officer or
CONTEMPT
- by a person deputized by the court, justice or judge
If you
who shall retain a copy on which to make a return of
service - make a FALSE RETURN, or
MODE OF SERVICE - REFUSE to make a return; or
- served personally on the respondent - any person who otherwise disobeys or
- substituted service - resist a lawful process or order of the court.
RETURN o Held liable for CONTEMPT
- Verified with supporting affidavitS o The court, justice or judge may punish with
imprisonment or fine a
- Filed within 5 working days from service of the writ
FAILURE TO MAKE RETURN
- period may be reasonably extended by the Court for
justifiable reasons. - Cannot be held in contempt but
CONTENTS OF RETURN - There can be ex parte hearing on the petition
The return shall, among other things, contain the following: - granting the petitioner such relief as the petition may
warrant
(a) The lawful defenses such as
- unless the court in its discretion requires the
o national security,
petitioner to submit evidence.
o state secrets,
HEARING IN CHAMBERS
o privileged communications,
- A hearing in chambers may be conducted where the
o confidentiality of the source of information of respondent invokes the defense that:
media
o the release of the data or information in
o and others; question shall compromise national security
or state secrets, or
(b) In case of respondent in charge, in
possession or in control of the data or o when the data or information cannot be
information subject of the petition; divulged to the public due to its nature or
privileged character
(i) a disclosure of the data or information
about the petitioner, the nature of such data SUMMARY HEARING
or information, and the purpose for its
- The hearing on the petition shall be summary.
collection;
However, the court, justice or judge may call for a preliminary
OB LIST
conference
- Order of battle
PRELIMINARY CONFERENCE
I remember a few years back there was a petition filed
- to simplify the issues and determine the possibility of
because of the inclusion of certain personalities in the OB LIST
obtaining stipulations and admissions from the parties
of the AFP. For some it caused them alarmed kasi kasali daw
sila sa order of battle, meaning to say they are being subject PROHIBITED PLEADINGS
of surveillance and possibly targeted for some harmful actions
The same Prohibited Pleadings and Motions are adopted
by the agents of the government.
(a) Motion to dismiss;
So they file a petition not for habeas data but for amparo.
(b) Motion for extension of time to file return,
WHAT HAPPENED?
opposition, affidavit, position paper and other
DISMISSED. pleadings;
I think kasali doon si Joma Sison, ang daming mga (c) Dilatory motion for postponement;
personalities nilagay pati local politicians natin
(d) Motion for a bill of particulars;
What they should have filed is writ of habeas data for them to
(e) Counterclaim or cross-claim;
know kung ano yung ginagather nila na data in the
surveillance allegedly conducted by the elements of the state (f) Third-party complaint;
kung meron man that more have been the more appropriate
petition. (g) Reply;

(ii) the steps or actions taken by the (h) Motion to declare respondent in default;
respondent to ensure the security and (i) Intervention;
confidentiality of the data or information;
and, (j) Memorandum;

(iii) the currency and accuracy of the data or (k) Motion for reconsideration of interlocutory orders
information held; and, or interim relief orders; and

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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

(l) Petition for certiorari, mandamus or prohibition HEARING ON OFFICER’S RETURN

against any interlocutory order.
- The court shall set the return for hearing
PERIOD TO DECIDE
- with due notice to the parties and act accordingly
- the court has 10 days from the time the petition is
OTHER ACTIONS
submitted for decision within which to decide
- The same rules
JUDGMENT
INSTITUTION OF SEPARATE ACTIONS
- If the allegations in the petition are proven by
substantial evidence, the court shall - The filing of a petition for the writ of habeas
data shall
o enjoin the act complained of,
- not preclude the filing of separate criminal, civil
o or order the deletion, destruction, or
or administrative actions
rectification of the erroneous data or
information and - CRIMINAL ACTION COMMENCED FIRST
o grant other relevant reliefs as may be just o Availed of habeas data by filing a motion in a
and equitable; criminal case that is already pending
o otherwise, the privilege of the writ shall be - HABEAS DATA FIRST LATER IN THE CRIMINAL
denied ACTION WAS FILED
UPON ITS FINALITY, the judgment shall be enforced by the o It can be consolidated in the criminal action
- sheriff or Wala gi discuss ang writ of kalikasan.
- any lawful officers as may be designated by the court,
justice or judge
- within five (5) working days.
AFTER THE ENFORCEMENT:
- Sheriff will make a RETURN – ito na yung
pangalawang return
* second RETURN was made by the SHERIFF– pertains to the
execution of judgment
* The first RETURN was made by the RESPONDENT -
responsive pleading

first RETURN second RETURN

- made by the respondent - made by the sheriff

- responsive pleading - pertains to the execution of
judgment
- it contains all the defenses or
denial in the allegations of the
petitions

RETURN OF SERVICE
- Sheriff verified return when there is already
enforcement of the judgment in the petition
- He shall file within 3 days from his enforcement
The return shall contain:
- a full statement of the proceedings under the writ and
- a complete inventory of the database or information,
or
- documents and articles inspected, updated, rectified,
or deleted,
- with copies served on the petitioner and the
respondent.
The officer shall state in the return:
- how the judgment was enforced and complied with
by the respondent,
- as well as all objections of the parties regarding the
manner and regularity of the service of the writ.
APPEAL
- within 5 working days from the date of notice of the
judgment or final order and under RULE 45

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 SPECIAL PROCEEDINGS
From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
CHANGE OF NAME
RULE 103
SECTION 1. Venue. - A person desiring to change his name
shall present the petition to the Court of First Instance of the
province in which he resides, or, in the City of Manila, to the
Juvenile and Domestic Relations Court.
SECTION 2. Contents of petition. - A petition for change of
name shall be signed and verified by the person desiring his
name changed, or some other person on his behalf, and shall
set forth:
(a) That the petitioner has been a bona fide resident of the
province where the petition is filed for at least three (3) years
prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is
sought;
(c) The name asked for.
SECTION 3. Order for hearing. - If the petition filed is
sufficient in form and substance, the court, by an order reciting
the purpose of the petition, shall fix a date and place for the
hearing thereof, and shall direct that a copy of the order be
published before the hearing at least once a week for three (3)
successive weeks in some newspaper of general circulation
published in the province, as the court shall deem best. The
date set for the hearing shall not be within thirty (30) days
prior to an election nor within four (4) months after the last
publication of the notice.
SECTION 4. Hearing. - Any interested person may appear at
the hearing and oppose the petition. The Solicitor General or
the proper provincial or city fiscal shall appear on behalf of the
Government of the Republic.
SECTION 5. Judgment. - Upon satisfactory proof in open
court on the date fixed in the order that such order has been
published as directed and that the allegations of the petition
are true, the court shall, if proper and reasonable cause
appears for changing the name of the petitioner, adjudge that
such name be changed in accordance with the prayer of the
petition.
SECTION 6. Service of judgment. - Judgments or orders
rendered in connection with this rule shall be furnished the civil
registrar of the municipality or city where the court issuing the
same is situated, who shall forthwith enter the same in the civil
register.
You already know what Rule 103 is all about.
ARTICLE 376 of the CIVIL CODE
Before the advent of RA 9048 you cannot change your name
without Judicial Order
In fact in the case of the one in the adoption wherein the
change of name was only limited to the surname that was
amended by the DOMESTIC ADOPTION LAW which includes
the first name that was still governed under the old law
because you still need to petition for the change of first name.
But with the CLERICAL ERROR LAW or RA 9048 pwede ka na
mag change ng first name, completely different first name as
long as you can justify it in an administrative proceedings
without judicial order.
So there is a great development when it comes to correction or
changing of names with the advent of RA 9048 this in effect
modify Article 376 as well as Article 412 of the Civil Code.
Article 376. No person can change his name or surname
without judicial authority.
Article 412. No entry in a civil register shall be changed or
corrected, without a judicial order. (n)
These are the justifications for the judicial change of name
(showed on the slides)
NAME
- Designation by which a person is known and called in
the community he lives in
In the world that you live in your name identifies you.
Usually 2 parts
- Given name (proper name)
- Surname (family name)
There are names provided in your baptismal certificate but the
one hat will govern is the one stated in your birth record.
CHARACTERISTIC OF NAME
- Obligatory (nobody can live without a name, lahat
tayo dapat may pangalan)
- Absolute, intended to protect individual from being
confused with others.
- Fixed, unchangeable, or immutable, at least at the
start, and may be changed only for good cause and
by judicial proceedings;
- Outside the commerce of man, hence, inalienable and
intransmissible by act inter vivos or mortis causa
- Imprescriptible
MIDDLE NAME
- Maternal lineage or filiation of a person (you go
abroad, tayo lang ang natatanging bansa na
nagrerequire ng middle name, the rest they don’t care
much about middle names, ang iba the concept of
their middle name is actually the second name, for us
the middle name would refer to the last name or
surname of your mom, maternal surname siya)
- It distinguishes him from others who may have the
same given name and surname as he has.
I have not came across of any specific provision regarding
middle names.
- For LEGITIMATE CHILDREN they can never be
deprived of a middle name. Legitimate children must
have a middle name o identify their maternal lineage.
You cannot deprive a legitimate child of a middle
name especially if the reason if merely for
convenience. Like what happened in the case of:
IN RE: PETITION FOR CHANGE OF NAME/CORRECTION
OF ENTRY IN CIVIL REGISTRY OF JULIAN LIN
CARULASAN WANG
- His middle name was sought to be removed.
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
- The child was legitimate and if you remove his middle
name you will create an impression that the child is
an unacknowledged illegitimate child. So you
downgrade his status from legitimate child to an
unacknowledged illegitimate child. You cannot do
that.
So kung walang middle name ang bata, automatic ang
implication niyan is the child is an unacknowledged illegitimate
child
NAME OF MARRIED WOMAN
- There is really no obligation on the part of the
married woman to adopt the surname of the
husband, it is optional.
- If the marriage is terminated you don’t have to go to
court to revert your maiden name, no need to file an
action in court.
- You only have to present the cause of the termination
of the marriage like death or decree of annulment,
even legal separation that allows you to revert back
to your maiden name or declaration of nullity of the
marriage.
Article 370. A married woman may use:
(1) Her maiden first name and surname and add her
husband's surname, or
(2) Her maiden first name and her husband's
surname or
(3) Her husband's full name, but prefixing a word
indicating that she is his wife, such as "Mrs."
BAR MATTER 1625
YASIN v SHARIA DISTRICT COURT
- The SC held that there is no need to file any petition.
You just automatically reassume your original name.
According to the Civil Code, when the marriage is
dissolved, you can go back and use your maiden
name.
REMO v SECRETARY OF FOREIGN AFFAIRS
- The SC upheld the optional character of adopting the
husband’s surname.
- However, if in your passport you already adopted as
your surname the surname of your husband you
cannot revert to your maiden name anymore, unless
you can show the termination of your marriage and
that is by virtue of Section 5 (d) of RA 8239 it is this
certain law that prohibit you from doing that.
NAME OF CHILDREN
- LEGITIMATE CHILDREN
o Article 264 of the Civil Code
Article 264. Legitimate children shall have the right:
(1) To bear the surnames of the father and
of the mother;
o GR: Shall principally use the surname of their
father
o If the change of surname will give the
impression of family relationship to another
that does not exist, it will not be allowed.
Like in a case of a step father unless he
adopts the child of his spouse you cannot
have the name of the child transferred or
changed to the name of the step father.
o Why? Because it creates the impression that
the step father is the step father of the child,
it creates the relation of paternity when
there is actually none.
- ILLEGITIMATE CHILDREN
o Article 176 of the FAMILY CODE:
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. The legitime
of each illegitimate child shall consist of one-half of the
legitime of a legitimate child. Except for this modification, all
other provisions in the Civil Code governing successional rights
shall remain in force. (287a)
o Therefore his surname will follow his
mother’s surname and that is mandatory
under Article 176 regardless of whether the
father admits paternity or acknowledges the
child. The law is mandatory.
o Until RA 9255 the Revilla Law where the
llegitmate child acknowledge by the father
will may now use the surname of the father.
o IRR RA 9255
o RULE 8 (EFFECTS OF RECOGNITION)
AMENDED ARTICLE 176 OF THE FAMILY CODE
 So there is an amendment of Article
176 of the FC because now the
illegitimate children may now use
the surname and shall now be
under the parental authority of the
mother and shall be entitled to
support. However illegitimate
children may use the surname of
the father if their filitaion 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 document is
made by the father.
RULES AND REGULATIONS GOVERNING THE
IMPLEMENTATION OF RA 9255
Rule 7. Requirements for the Child to Use the Surname
of the Father
7.1 For Births Not Yet Registered
7.1.1 The illegitimate child shall use the
surname of the father if a public document is
executed by the father, either at the back of
the Certificate of Live Birth or in a separate
document.
7.1.2 If admission of paternity is made
through a private handwritten instrument,
the child shall use the surname of the father,
provided the registration is supported by the
following documents:
a. AUSF
b. Consent of the child, if 18 years old and
over at the time of the filing of the document
Sc. Any two of the following documents
showing clearly the paternity between the
father and the child:
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
1) Employment records
2) SSS/GSIS records
3) Insurance
4) Certification of membership in
any organization
5) Statement of Assets and
Liabilities
6) Income Tax Return (ITR)
7.2 For Births Previously Registered under the
Surname of the Mother
7.2.1 If filiation has been expressly
recognized by the father, the child shall use
the surname of the father upon the
submission of the accomplished AUSF.
7.2.2 If filiation has not been expressly
recognized by the father, the child shall use
the surname of father upon submission of a
public document or a private handwritten
instrument supported by the documents
listed in Rule 7.1.2.
7.3 Except in Item 7.2.1, the consent of the
illegitimate child is required if he/she has reached the
age of majority. The consent may be contained in a
separate instrument duly notarized.
Rule 8. Effects of Recognition
8.1 For Births Not Yet Registered
8.1.1 The surname of the father shall be
entered as the last name of the child in the
Certificate of Live Birth. The Certificate of
Live Birth shall be recorded in the Register of
Births.
8.1.2 If admission of paternity is done at the
back of the Certificate of Live Birth, no
annotation is made in the Certificate of Live
Birth. However, annotation shall be made in
the Register of Births as follows:
"Acknowledged by (name of father) on
(date) pursuant to RA 9255."
8.1.3 If admission of paternity is made in a
separate public document, the proper
annotation shall be made in the Certificate of
Live Birth and the Register of Births. The
annotation shall be as follows:
"Acknowledged by (name of father) on
(date) pursuant to RA 9255."
8.1.4 In case of delayed registration, follow
the provisions under 8.1.1 to 8.1.3 and
comply with the requirements under Rule 25
of Administrative Order No. 1 series of 1993.
Proper annotation with regard to delayed
registration shall be made.
8.2 For Births Previously Registered under the
Surname of the Mother
8.2.1 If admission of paternity was made
either at the back of the Certificate of Live
Birth or in a separate public document or in
a private handwritten document, the public
document or AUSF shall be recorded in the
Register of Legal Instruments. Proper
annotation shall be made in the Certificate of
Live Birth and the Register of Births as
follows:
"The surname of the child is hereby
changed from (original surname) to (new
surname) pursuant to RA 9255."
The original surname of the child appearing
in the Certificate of Live Birth and Register of
Births shall not be changed or deleted.
8.2.2 If filiation was not expressly recognized
at the time of registration, the public
document or AUSF shall be recorded in the
Register of Legal Instruments. Proper
annotation shall be made in the Certificate of
Live Birth and the Register of Births as
follows:
"Acknowledged by (name of father) on
(date). The surname of the child is hereby
changed from (original surname) to (new
surname) on (date) pursuant to RA 9255."
Under Rule 7:
“7.1.1 The illegitimate child SHALL use the surname of the
father if a public document is executed by the father, either at
the back of the Certificate of Live Birth or in a separate
document.”
Under Rule 8:
“8.1.1 The surname of the father SHALL be entered as the
last name of the child in the Certificate of Live Birth. The
Certificate of Live Birth shall be recorded in the Register of
Births.”
“8.1.2 If admission of paternity is done at the back of the
Certificate of Live Birth, no annotation is made in the
Certificate of Live Birth. However, annotation SHALL be made
in the Register of Births as follows: "Acknowledged by (name
of father) on (date) pursuant to RA 9255."
“8.1.3 If admission of paternity is made in a separate public
document, the proper annotation SHALL be made in the
Certificate of Live Birth and the Register of Births. The
annotation shall be as follows: "Acknowledged by (name of
father) on (date) pursuant to RA 9255."
So here under the IRR mandatory. Nagging mandatory ang
paggamit ng surname ng father once he acknowledge the child
by the use of the word “SHALL” and automatic change of
surname under Rule 8. Read again the amendment to Article
176.
RA 9255
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."
In RA 9255 provides:
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
“...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.”
There is no use of the word “SHALL.”
GRANDE v ANTONIO (2014 case)
- The father acknowledge the child and wanted the
child to use his surname. He cited Rule 7 and 8 of the
IRR providing for the mandatory use of the father’s
surname upon recognition of paternity of the child.
- The SC said implementing rules are not valid. (IRR
RULE 7 AND 8 – VOID)
- The IRR contravenes ARTICLE 176 OF THE FAMILY
CODE which gives illeligitmate children the right to
decide if they want to use the surname of their
father. Neither the father of the mother is granted by
law to decide the surname of their illegitimate
children.
- ARTICLE 176 OF THE FAMILY CODE use the word
“MAY” clearly showing that an acknowledge
illegitimate child is under no compulsion to use the
surname of the illegitimate father
- Who will decide? The illegitimate children, not the
mother, not the father
- Void ang IRR that makes it mandatory for an
acknowledge illegitimate child to use the surname of
the father.
- Bottom line, the law gives the child the option and the
right to decide whether or not to adopt the surname
of his father by the use of the word “MAY.”
- I think in this case it was remanded to ascertain the
preference of the child whether to use the surname of
the father.
ALLOWED NAME CHANGE
- ARTICLE 176 OF THE FAMILY CODE
REPUBLIC v CAPOTE
- The child was using the surname of the father.
- But his parents were not married.
- By some reason nakalusot, hindi sinunod ang apilyedo
ng nanay.
- The father’s surname was followed kahit na hindi
married.
- Illegitimate yung bata.
- They wanted to revert to mother’s surname by reason
of his being illegitimate.
- So you are downgrading the status ofthe child from
legitimate to illegitimate.
Is that allowed? Isn’t that contrary to the best interest of the
child?
- The SC said that the change of name will erase the
impression that he was ever recognized by his father.
- It merely reflects the fact that he was never
recognized it is being consistent with the reality.
- It is also to his best interest, as it will facilitate his
mother’s intended petition to have him to join her in
the United States. This wcourt will not stand in the
way of the reunification of the mother and son.
- So the very main reason kung bakit ipapachange yun
is para mapetitionan nung nanay yung bata in the US.
- The SC said that is more in keeping with the best
interest of the child to be reunited by the mother.
- But if you will look at it closely kung i-che-change mo
yung status niya from legitimate to illegitimate it is
not really for the best interest of the child.
- But there is another standard use the the SC and that
is the REUNIFICATION OF THE MOTHER AND THE
CHILD.
Another ground to allow the change of name of the child was
those made pursuant to the REVILLA LAW (RA 9255).
Take note if the child has already been registered in the name
of the mother because he is illegitimate and later on the father
acknowledges him. WHAT DO YOU DO? HOW CAN YOU
CHANGE THE BIRTH RECORD?
CAN YOU RESORT TO RA 9048 para ma change ang kanyang
apilyedo?
- NO, because the change of name under RA 9048 is
only the first name not the surname.
RA 9255 (REVILLA LAW) is actually for the change of the
surname
- FILE A PETITION IN COURT – you really have to
resort to a judicial action.
- You have to have a court order in order to effect the
change of name.
GRANDE v ANTONIO
- The child must state his preference that he want to
use the surname of his father
- Not just the will of the father or the mother to be
followed
- But the will of the child will be followed
DELA CRUZ v GRACIA (2009)
- This is a peculiar case, the child here is illegitimate,
the parents were not married
- Father died before the child was born (born
optimus??? – sorry can’t clearly hear)
So paano ngayon i-a-acknowledge ng tatay para magamit niya
ang surname ng tatay? HOW?
- The Revilla Law requires that there must be
acknowledgment
How?
- The signature of the father in the birth record or
admission in a public document or private
handwritten document and signed by the parent
concerned
Did the SC allow the change of name?
- YES
Was there sufficient proof of acknowledgment?
- The SC said YES. Although the father did not sign in
the birth record, there was admission in a public
document or private handwritten document.
- Take note that in a private handwritten document
kailangan pirmado ng tatay
Was there a signature of the dad?
- NONE
Why did the SC allow it?
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

- The SC allowed it, the signature of the father is (a) When the name is ridiculous,
strictly required if there is only one private dishonorable or extremely difficult to write or
handwritten instrument. pronounce;
- Kung nag-iisa lang kailangan may prima ng tatay pag (b) When the change results as a legal
more than one pwede na wala for as long as you can consequence such as legitimation;
show that the handwritten instrument is really made
[Note: This is not an existing
by the father
ground anymore under the Petition
- Signature not required if private handwriten for Change of Name through Rule
instrument is accompanied by other relevant and 103 because it was already
competent evidence, corroborative evidence amended by RA 9255.]
Ano yung evidence na nandito? (c) When the change will avoid confusion;
- It was an AUTOBIOGRAPHY written by the father and (d) When one has continuously used and
in his autobiography he clearly admitted the child in been known since childhood by a Filipino
the womb of the mother is his name;
- That was considered by the SC as sufficient ground to AND was unaware of alien parentage;
prove the acknowledgment of the illegitimate child
(e) A sincere desire to adopt a Filipino name
and allowed the child to use the surname of the
to erase signs of former alienage, all in good
father even when the child was born after the death
faith and without prejudicing anybody; and
of the father.
(f) When the surname causes
DISALLOWED CHANGE OF NAME
embarrassment;
- Like I said if the change of name is to reflect or to
AND there is no showing that the desired
establish a filiation that does not exist that will not be
change of name was for a fraudulent
allowed
purpose OR that the change of name would
PROCEDURE prejudice public interest.”
PETITION FOR CHANGE NAME NOT GROUNDS FOR CHANGE OF NAME
REPUBLIC v HERNANDEZ
WHO MAY PETITION? 1. SEPARATION OF SPOUSES – without decree of legal
separation
- Any person regardless of status inlcuing aliens can file
a petition 2. NO PROOF OF PREJUDICE BY USE OF OFFICIAL
NAME
- But temporary resident aliens are not covered
3. MERE USE AND KNOWN BY DIFFERENT NAME
- Dapat permanent resident aliens and mag fi-file
4. NO PROOF THAT THE TRUE NAME EVOKES DERISIVE
WHERE?
LAUGHTER
- RTC of the province where the petitioner resides
5. USE OF BAPTISMAL NAME
CONTENTS OF PETITION
Actually itong use of baptismal name if only for the first name
- You have to show pwede na siya sa under RA 9048 to change the first name.
Also itong mere use and known by different name if only for
o bona fide residency in a place where you file the first name pwede na siya sa under RA 9048 to change the
a petition, first name.
o the cause for the change of name and ORDER OF HEARING
o the name asked fo If the petition filed
Take note that the name to be changed and the name asked - the court will issue an order of hearing
for must be included in the caption of the petition as well as all
other names and aliases must be reflected in the caption of the - shall fix a date and place for the hearing thereof, and
petition.
- The date set for the hearing shall not be within thirty
If you do not indicate all the other names and aliases that is (30) days prior to an election nor within four (4)
considered fatal because the court would not acquire months after the last publication of the notice.
jurisdiction over your petition it renders the entire proceeding
PUBLICATION
void.
- shall direct that a copy of the order be PUBLISHED
FORM OF PETITION
BEFORE THE HEARING
- signed and verified by the petitioner or some other
o at least once a week for three (3) successive
persons on his behalf
weeks in some newspaper of general
- if it is a minor, then with the assistance of his parents circulation published in the province, as the
court shall deem best
- must be accompanied by a certification against forum
shopping THE PURPOSE OF THE PUBLICATION

GROUNDS OF NAME CHANGE - is to apprise the public of the pendency of the petition
REPUBLIC v. HERNANDEZ If there is a fatal discrepacy between the names stated in the
petition and in the published order that is a fatal defect it
- ENUMERATED THE GROUNDS under RULE 103 ON renders the entire proceeding void.
CHANGE OF NAME are as follows:
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

HEARING
- Any interested person may appear at the hearing and
oppose the petition
- The Solicitor General or the proper provincial or city
fiscal shall appear on behalf of the Government of the
Republic
- During the hearing there will be proof adduce as to
the publication and allegations in the petitions.
NATURE OF PROCEEDING
- Adversarial
How does it become adversarial?
- It becomes adversarial when it s published and the
Solicitor General has been served copy of petition
JUDGMENT
- Upon satisfactory proof in open court (If there is
gound to grant the petition the court will grant it –
the court has discretion to grant the petition)
- on the date fixed in the order
o that such order has been published as
directed and
- that the allegations of the petition are true,
- the court shall, if proper and reasonable cause
appears for changing the name of the petitioner,
o adjudge that such name be changed in
accordance with the prayer of the petition.
SERVICE OF JUDGMENT
- Judgments or orders rendered in connection with this
rule shall be furnished
o the civil registrar of the municipality or
o city where the court issuing the same is
situated,
- who shall forthwith enter the same in the civil
register.
The class president – Cut the lecture - may make up class pa
sa TAX 

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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
April 5, 2016 (SAbapo)
Rule 108
Cancellation or Correction of
Entries in the Civil Registry
Like Rule 103, it has also been modified by REPUBLIC ACT NO.
9048 (March 22, 2001) AN ACT AUTHORIZING THE CITY OR
MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO
CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN
ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN
THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER,
AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF
THE CIVIL CODE OF THE PHILIPPINES.
Republic vs. Mercadera defines what correction means. To
correct, it presupposes a certain error. That is why it is defined
as to make or set right to remove a false or error from. If
there is no error, then there is no basis to correct it.
Now, aside from the error, what may be corrected would be
under RA 9048 are clerical error, not substantial errors. The
law also allows the change of first name. If you want to
change your surname, go to Rule 103. It cannot be done
administratively under Rule 108.
These are some of the amendments introduced by this law to
these rules.
RA9048, Section 1. Authority to Correct Clerical or
Typographical Error and Change of First Name or Nickname –
No entry in a civil register shall be changed or corrected
without a judicial order, except for clerical or typographical
errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of
this Act and its implementing rules and regulations.
Rule 9048 Rule 108
Clerical or typographical errors Substantial changes i.e. affects
and change of first name or civil status, citizenship, nationality
nickname and Cancellation/ correction of
substantial errors
Summary procedure Adversarial proceeding i.e.
opposing parties, as distinguished
from ex parte application, legal
warning, opportunity to contest
Sec. 1. Who may file petition. Any person interested in any
act, event, order or decree concerning the civil status of
persons which has been recorded in the civil register, may file
a verified petition for the cancellation or correction of any
entry relating thereto, with the Court of First Instance of the
province where the corresponding civil registry is located.
Sec. 2. Entries subject to cancellation or correction. Upon
good and valid grounds, the following entries in the civil
register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations; (e) judgments of
annulments of marriage; (f) judgments declaring marriages
void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization (k)
election, loss or recovery of citizenship (l) civil interdiction; (m)
judicial determination of filiation; (n) voluntary emancipation of
a minor; and (o) changes of name.
It is important that you should implead the required parties to
the petition. Who are these parties? The Civil Registrar is the
indispensable party. Failure to implead the civil registrar would
be fatal to the action. This was ruled in Republic vs.
Cagandahan.
In this case, although there was failure to implead the Civil
Registrar, the petitioner nevertheless furnished a copy to the
local registrar. So the SC relaxed the rule as the purpose of the
law was already served by serving copy with the local
registrar.
Who else? All persons who have claims or interests which
would be affected by the correction. So for instance, if you
want to correct the name of the father, you have to implead
the children that would be affected. So you have to be
conscious with that.
Who else? All possible parties that can be considered as
indispensable parties.
Failure to implead would result to the dismissal of the petition.
In the case of Labayo-Rowe vs. Republic, the petition
involved the civil status and filiation of the person. Very
substantial! It is not just mere typographical error. Failure to
implead would not vest the court with jurisdiction. The
judgment rendered by the court is considered void. Include not
only the recognized father, but also the child itself, and all
persons who are deemed affected to make the petition
adversarial.
In Republic vs. Barco, the petitioners here had a child, the
name was sought to be corrected. The mum filed a petition
with the conformity of the father to correct the birth record of
their daughter to the dad’s surname. The problem is, the
father also had another illegitimate daughter who was not
included as a party. Is the illegitimate daughter represented by
her mother an indispensable party? The SC said the illegitimate
party is one of the parties mentioned in Sec. 3 of Rule 108.
Her successional rights would be affected if the other daughter
would be named after the father.
But the SC ruled that the failure was not fatal as to the
compliance with Sec. 4 of Rule 108.
Sec. 3. Parties. When cancellation or correction of an entry in
the civil register is sought, the civil registrar and all persons
who have or claim any interest which would be affected
thereby shall be made parties to the proceeding.
Sec. 4. Notice and publication. Upon the filing of the petition,
the court shall, by an order, fix the time and place for the
hearing of the same, and cause reasonable notice thereof to
be given to the persons named in the petition. The court shall
also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the
province.
Even though Barco was not impleaded in the petition, the
defect was cured by compliance with Sec. 4, Rule 108, which
requires notice by publication. The purpose of this section is to
bind the whole world to the subsequent judgment on the
petition. The sweep of the decision would cover even parties
who should have been impleaded under Sec. 3, Rule 108, but
were inadvertently left out.
A petition for correction is an action in rem, an action against a
thing and not against a person. The decision on the petition
binds not only the parties thereto but the whole world. It is
validated essentially through publication which serves as a
notice to the whole world that the proceeding has for its object
to bar indefinitely all who might be minded to make an
objection of any sort against the right sought to be
established.
In the case of Ceruila vs. Delantar, what happened here is
that Maria Roslyn Telin Delantar was the child victim in the
rape case involving Romeo Jalosjos. After she was involuntarily
committed to the care and custody of the DSWD, a petition for
the cancellation of her simulated birth certificate was filed by
spouses Platon and Librada Ceruila, without impleading her or
DSWD. Publication was made and summons was sent to the
Civil Registrar but not to Rosilyn. The published petition may
interpose his/her comment or opposition thereto on or before
the scheduled hearing. Valid?
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Did the publication cure the failure to implead and serve notice
on Rosilyn? NO
It is not only the civil registrar but also all persons who have or
claim any interest which would be affected by a proceeding
concerning the cancellation or correction of an entry in the civil
register must be made parties thereto. As enunciated in
Republic v. Benemerito, unless all possible indispensable
parties were duly notified of the proceedings, the same shall
be considered as falling much too short of the requirements of
the rules. Here, it is clear that no party could be more
interested in the cancellation of Rosilyn's birth certificate than
Rosilyn herself. Her filiation, legitimacy, and date of birth are
at stake.
It cannot be said that this is just mere inadvertence since the
the birth certificate was already attached and the very child
named therein was not impleaded.
Now, in Republic vs. Kho, what happened?
The birth certificates of minor children were sought to be
corrected to, among others, correct the mother’s name from
Maribel to Marivel and the date of marriage. Likewise, birth
records of Kho siblings were also sought to be corrected to
change the citizenship of their mother (Epifania) from Chinese
to Filipino and to delete the word “married.” Epifania as well as
Marivel were not impleaded nor served notice.
Held: Publication of the order of hearing under Section 4 of
Rule 108 cured the failure to implead an indispensable party
citing Barco vs. CA.
Bakit pa-iba iba ang Supreme Court? There are several
circumstances that the Court considered.
There is no dispute that the trial court's Order setting the
petition for hearing and directing any person or entity having
interest in the petition to oppose it was posted as well as
published for the required period; that notices of hearings
were duly served on the Solicitor General, the city prosecutor
of Butuan and the local civil registrar; and that trial was
conducted on January 31, 2002 during which the public
prosecutor, acting in behalf of the OSG, actively participated
by cross-examining Carlito and Epifania.
It may not be amiss to mention, however, that during the
hearing on January 31, 2002, the city prosecutor who was
acting as representative of the OSG did not raise any objection
to the non-inclusion of Marivel and Carlito's parents as parties
to the proceeding.
Parenthetically, it seems highly improbable that Marivel was
unaware of the proceedings to correct the entries in her
children's birth certificates, especially since the notices, orders
and decision of the trial courtwere all sent to the residence she
shared with Carlito and the children.
Date of marriage of Carlito and Marivel, their certificate of
marriage25 shows that indeed they were married on January
21, 2000, not on April 27, 1989.
Explaining the error, Carlito declared that the date "April 27,
1989" was supplied by his helper, adding that he was not
married to Marivel at the time his sons were born because his
previous marriage was annulled only in 1999. Given the
evidence presented by respondents, the CA observed that the
minors were illegitimate at birth, hence, the correction would
bring about no change at all in the nature of their filiation.
We also have the case of Republic vs. Lusagnay-Uy. We
have here the Republic questioning the decision rendered in
favor of Anita Sy. She is a Chinese citizen and a legitimate
child of Sy Ton and Sotera Lusagnay. She filed a petition for
correction of her first name and surname, her status from
legitimate to illegitimate and her citizenship from Chinese to
Filipino. She, however, only impleaded and notified the Local
Civil Registrar and failed to implead and notify her parents and
siblings.
The Supreme Court held that the fact that the notice of
hearing was published in a newspaper of general circulation
and notice thereof was served upon the State will not change
the nature of the proceedings taken. A reading of Sections 4
and 5, Rule 108 of the Rules of Court shows that the Rules
mandate two sets of notices to different potential oppositor ---
one given to the persons named in the petition and another
given to other persons who are not named in the petition but
nonetheless may be considered interested or affected parties.
Summons must, therefore, be served not for the purpose of
vesting the courts with jurisdiction but to comply with the
requirements of fair play and due process to afford the person
concerned the opportunity to protect his interest if he so
chooses.
It is clear from the foregoing discussion that when a petition
for cancellation or correction of an entry in the civil register
involves substantial and controversial alterations, including
those on citizenship, legitimacy of paternity or filiation, or
legitimacy of marriage, a strict compliance with the
requirements of Rule 108 of the Rules of Court is mandated. If
the entries in the civil register could be corrected or changed
through mere summary proceedings and not through
appropriate action wherein all parties who may be affected by
the entries are notified or represented, the door to fraud or
other mischief would be set open, the consequence of which
might be detrimental and far reaching.
Cases where the failure to implead and notify the affected or
interested parties may be cured by the publication of the
notice of hearing:
1. earnest efforts were made by petitioners in bringing to court
all possible interested parties; (Case of Barco)
2. where the interested parties themselves initiated corrections
proceedings;
3. when there is no actual or presumptive awareness of the
existence of the interested parties; or (Case of Barco)
4.when a party is inadvertently left out.
Only in these instances you can say that the failure to implead
the parties would be excusable.
So what is the form of the petition? It must be verified and
therein attached is the certificate of non-forum shopping.
So where do you file it? It should be filed in the RTC of the
province where the local civil registry is located.
So if you’re in Davao and your record is registered in Cebu,
you file it in the RTC of Cebu because you need to implead the
LCR.
Going through the cases, you’ll see that Rule 108 has a lengthy
history.
For correction of clerical or innocuous errors as early as 1954,
the SC decided in the case of Ty Kong Tin vs. Republic that the
nature of the correction of clerical or innocuous errors under
Rule 108 proceedings is summary in nature for correction of
clerical, typographical errors lang. If the proceeding is for
correction of substantial errors affecting civil status, citizenship
or nationality of a party, then it is adversarial. That was ruled
in the landmark case of Republic vs. Valencia, it is no longer
summary but adversarial if the correction sought is substantial
errors.
However, with the advent of RA 9048 as well as RA 10172,
Congress had taken out the Summary Proceeding from R108
because typographical or clerical error is now removed from
judicial proceedings under R108 and is now vested in the LCR
under the administrative correction of clerical errors.
What may be changed or corrected?
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Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Article 407 Civil Code: Acts, events and judicial decrees
concerning the civil status of persons shall be recorded in the
civil register.
Act 408 Civil Code: (1) Births; (2) marriages; (3) deaths; (4)
legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations;
(8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13)
civil interdiction; (14) judicial determination of filiation; (15)
voluntary emancipation of a minor; and (16) changes of name.
Another interesting case is Tan Co vs. Civil Register of
Manila.
What happened here is that the children were born to a
Chinese father. Obviously, their birth records would show that
their father is a Chinese. However, after they were born, their
father became a naturalized Filipino citizen. So it is an after-
birth event. Is that subject to correction?
The SC said yes. The petitioner’s recourse to Rule 108 of the
Rules of Court, as amended, is appropriate. Under Article 412
of the New Civil Code, no entry in a civil register shall be
changed or corrected without a judicial order. The law does
not provide for a specific procedure of law to be followed. But
the Court approved Rule 108 of the Rules of Court to provide
for a procedure to implement the law. The entries envisaged in
Article 412 of the New Civil Code are those provided in Articles
407 and 408 of the New Civil Code.
Specific matters covered by the said provision include not only
status but also nationality. The acts, events or factual errors
envisaged in Article 407 of the New Civil Code include even
those that occur after the birth of the petitioner.
However, in such cases, the entries in the certificates of birth
will not be corrected or changed. The decision of the court
granting the petition shall be annotated in the certificates of
birth and shall form part of the civil register in the Office of the
Local Civil Registrar.
To correct simply means to make or set aright; to remove the
faults or error from. To change means to replace something
with something else of the same kind or with something that
serves as a substitute. Article 412 of the New Civil Code does
not qualify as to the kind of entry to be changed or corrected
or distinguished on the basis of the effect that the correction
or change may be. Such entries include not only those clerical
in nature but also substantial errors. After all, the role of the
Court under Rule 108 of the Rules of Court is to ascertain the
truths about the facts recorded therein.
So it actually falls under the enumeration of Art. 408(10)
Naturalization.
SPOTLIGHT MOMENT ABOUT CLIENTS GAINED FROM AVID
VIEWERS OF HER SUNDAY MORNING SHOW.
Now, we will discuss if Rule 108 shall apply on change of
gender. The Supreme Court, in the case of Republic vs.
Cagandahan, ruled on the question on whether or not Rule
108 allow change of sex or gender in the birth certificate by
reason of Congenital Adrenal Hyperplasia (CAH) which is a
condition where persons thus afflicted possess both male and
female characteristics.
Yes. Under Rep. Act No. 9048, a correction in the civil registry
involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the
applicable procedure is Rule 108 of the Rules of Court.
Ultimately, we are of the view that where the person is
biologically or naturally intersex the determining factor in his
gender classification would be what the individual, like
respondent, having reached the age of majority, with good
reason thinks of his/her sex. Respondent here thinks of himself
as a male and considering that his body produces high levels
of male hormones (androgen) there is preponderant biological
support for considering him as being male. Sexual
development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the
gender of such persons, like respondent, is fixed.
This was before RA 10172 that took effect last January 2013
which now allows changing the sex provided there is no sex
reassignment. In this case, the petitioner is a hermaphrodite.
It just so happens that as he grew up, yung nag manifest na
dominant sex niya iba doon sa na-register sa kanyang birth
record. SC said that is allowed for correction because there
was no reassignment. But had Cagandahan petition for his
birth record after the enactment of RA 10172, then that would
have been entertained kasi wala namang sex reassignment.
Now eto ngayon, in the recent case of Republic vs. Olaivar
decided in 2014, here Olaivar wanted to cancel all entries in
the white portion of the alleged contract entered into during a
civil wedding. The reason is that di naman talaga siya
nagpakasal.
She just found out that meron nap ala marriage contract at
kasal na pala siya sa isang Taiwanese or Korea. So pina-cancel
niya. So effect of that petition if the nullification of marriage. Is
that allowed?
Yes, that is allowed since wala naman talagang kasal. But as to
the nullification, to be effected, must be supported by proof or
evidence.
So is this now an exception to the rule that Rule 108 may not
be used to determine the nullity of marriage?
The Supreme Court said no. Rule 108 cannot be availed of to
nullify the marriage. That is the rule enunciated in the case of
Braza vs. City Civil Register.
The issue here is WON the petition for correction of entry may
include a prayer for declaration of nullity of marriage and
whether it DNA testing to determine paternity and filiation is
allowed.
SC said NO. Petition for Correction of Entries prays as follows:
(1) the correction of the entries in Patrick's birth record with
respect to his legitimation, the name of the father and his
acknowledgment, and the use of the last name "Braza";
2) a directive to Leon, Cecilia and Lucille, all surnamed Titular,
as guardians of the minor Patrick, to submit Parick to DNA
testing to determine his paternity and filiation; and
3) the declaration of nullity of the legitimation of Patrick as
stated in his birth certificate and, for this purpose, the
declaration of the marriage of Lucille and Pablo as bigamous.
In a special proceeding for correction of entry under Rule 108
(Cancellation or Correction of Entries in the Original Registry),
the trial court has no jurisdiction to nullify marriages and rule
on legitimacy and filiation.
Rule 108 of the Rules of Court vis a vis Article 412 of the Civil
Code charts the procedure by which an entry in the civil
registry may be cancelled or corrected. The proceeding
contemplated therein may generally be used only to correct
clerical, spelling, typographical and other innocuous errors in
the civil registry. A clerical error is one which is visible to the
eyes or obvious to the understanding; an error made by a clerk
or a transcriber; a mistake in copying or writing, or a harmless
change such as a correction of name that is clearly misspelled
or of a misstatement of the occupation of the parent.
Substantial or contentious alterations may be allowed only in
adversarial proceedings, in which all interested parties are
impleaded and due process is properly observed.
However, the exact opposite happened in the case of
Concepcion vs. CA.
Can judicial recognition of foreign divorce extend to the
cancellation entry (of marriage) in the Local Civil Registry? No.
A petition for recognition of a foreign judgment is not the
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
proper proceeding, contemplated under the Rules of Court, for
the cancellation of entries in the civil registry.
Must separate proceedings be instituted for recognition of
foreign of foreign divorce decree and for cancellation of entry
under Rule 108? No. We hasten to point out, however, that
this ruling should not be construed as requiring two separate
proceedings for the registration of a foreign divorce decree in
the civil registry - one for recognition of the foreign decree and
another specifically for cancellation of the entry under Rule
108 of the Rules of Court.
Foreign divorce decree may be judicially recognized under Rule
108.
Provided the basic jurisdictional requirements under Rue 108
of the Rules of Court are complied with, i. e, verified petition
filed with the RTC of the province where the corresponding
civil registry is located, the civil registrar and all persons who
have or claim any interest are made parties to the proceeding,
and publication of the time and place for hearing in a
newspaper of general circulation.
The recognition of the foreign divorce decree may be made in
a Rule 108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the Rules of Court) is
precisely to establish the status or right of a party or a
particular fact. Moreover, Rule 108 of the Rules of Court can
serve as the appropriate adversarial proceeding by which the
applicability of the foreign judgment can be measured and
tested in terms of jurisdictional infirmities, want of notice to
the party, collusion, fraud, or clear mistake of law or fact.
If your ultimate goal is to cancel the marriage certificate by
virtue of the foreign divorce decree, you file a petition under
Rule 108 with a prayer for the court to recognize the foreign
judgment. The foreign decree of divorce. You simply comply
with the basic jurisdictional requirements: Publication, proof of
foreign law, proof of foreign decree, proof of jurisdiction of
foreign court that granted the divorce, etc. Same as reprobate
proceedings in foreign country.
So when the court receives the petition under Rule 108, what
will happen?
Upon filing of the petition, court shall:
 Issue an order fixing the time and place of hearing
 Cause service of notice on the persons named in the
petition
 Direct publication of the notice once a week for 3
consecutive weeks in a newspaper of general
circulation in the province (Section 4, Rule 108)
So in the case of Alba vs. CA, here Rogelio Alba had all
entries cancelled that the parents appearing in the birth
certificate are not married, that the records are false. He
impleaded the RoD and the mother’s child.
Rosendo Herrera petitioned for cancellation of entries in the
birth record of Rosendo Alba Herrera, Jr. i.e, (1) surname
Herrera; (2) name of Rosendo as father, (3) date of marriage
of parents, for being false. He impleaded the LCR, Armi (the
mother) and “all persons who have a claim or any interest in
the petition.” Petition, not being opposed by the OSG, was
granted. Three years later, Armi petitioned for the annulment
of judgment on the ground that she was not notified of
Rosendo’s petition as it indicated her wrong address.
Here you have a situation where a person who was named the
father of the child in the birth record was the one who filed a
petition for the cancellation of entries in that birth record.
He claimed that his name indicating to be the father was
falsely made and the date of marriage with the mother was
also false and that he was not the father. He was impugning
the validity of the birth record where his name appears as the
father.
Because it was unopposed, the petition was granted. The
mother came to know about it later and petitioned for the
annulment of judgment on the ground that she was not
notified of the petition because the petition indicated her old
address.
Held: In a proceeding in rem or quasi in rem, jurisdiction over
the person of the defendant is not a prerequisite to confer
jurisdiction on the court, provided that the latter has
jurisdiction over the res. Jurisdiction over the res is acquired
either (a) by the seizure of the property under legal process,
whereby it is brought into actual custody of the law; or (b) as
a result of the institution of legal proceedings, in which the
power of the court is recognized and made effective.
The service of summons or notice to the defendant is not for
the purpose of vesting the court with jurisdiction but merely
for satisfying the due process requirements.
How was jurisdiction vested?
The filing with the trial court of the petition for cancellation
vested the latter jurisdiction over the res. Substantial
corrections or cancellations of entries in civil registry records
affecting the status or legitimacy of a person may be effected
through the institution of a petition under Rule 108 of the
Revised Rules of Court, with the proper Regional Trial Court.
Being a proceeding in rem, acquisition of jurisdiction over the
person of petitioner is therefore not required in the present
case. It is enough that the trial court is vested with jurisdiction
over the subject matter.
Sec. 5. Opposition. The civil registrar and any person having or
claiming any interest under the entry whose cancellation or
correction is sought may, within fifteen (15) days from notice
of the petition, or from the last date of publication of such
notice, file his opposition thereto.
Who may oppose?
 Civil Registrar
 Any person having or claiming any interest in the
entry sought to be cancelled or corrected
When to oppose?
 Within 15 days from notice of petition or from the last
date of publication
Even if what was sought was the correction of the nationality
and civil status of petitioners minor’ children as stated in the
records, i.e. “Chinese” to “Filipino”, “legitimate” to
“illegitimate” which are not mere clerical errors, such may be
corrected as long as R108, Secs. 3-5 are complied with, and
the aggrieved parties have availed themselves of the
appropriate adversary proceedings
 Petition for correction is an action in rem
 Entries in Birth certificates relating to citizenship of
the father from “Chinese” to “Filipino” allowed under
CA 473, Sec. 15 (extending Philippine citizenship to
minor children of those naturalized under LOI 270)
Sec. 6. Expediting proceedings. The court in which the
proceeding is brought may make orders expediting the
proceedings, and may also grant preliminary injunction for the
preservation of the rights of the parties pending such
proceedings.
Sec. 7. Order. After hearing, the court may either dismiss the
petition or issue an order granting the cancellation or
correction prayed for. In either case, a certified copy of the
judgment shall be served upon the civil registrar concerned
who shall annotate the same in his record.
Now let’s go to correction clerical errors provided under RA
9048 and RA 10172.
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From the lectures of Atty. Geraldine Quimosing-Tiu
Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
RA 9048 amended Articles 376 and 412 of the Civil Code. RA
10172, on the other hand, amended Sections 1, 2, 5 and 8 of
RA 9048 to include administrative correction of clerical errors
in the day and month of birth and in the gender, provided that
there is no sex change involved.
Both of these laws provide for administrative correction of
clerical errors.
Who may correct clerical errors?
1. Concerned city/municipal registrar or (Sec 1, RA
9048)
2. Consul general (Sec 1, RA 9048)
3. Clerk of the Sharia Court in his capacity as District or
Circuit Registrar of Muslim Marriages, Divorces,
Revocation of Divorces and Conversions (Rule 1, IRR
of Rule 9048 A.O. No. 1, Series of 2001)
Scope of Administrative Correction under RA 9048
1. First Name
o A name or nickname given to a person which
may consist of one or more names in
addition to middle and last names (Sec 2(6))
2. Clerical or typographical errors
o refers to a mistake committed in the
performance of clerical work in writing,
copying, transcribing or typing an entry in
the civil register that is harmless and
innocuous, such as misspelled name or
misspelled place of birth or the like, which is
visible to the eyes or obvious to the
understanding, and can be corrected or
changed only by reference to other existing
record or records: Provided however, that no
correction must involve the change of
nationality, age, status or sex of the
petitioner. (Sec 2 (3))
Scope of Administrative Correction under RA 10172
1. Clerical or typographical error/mistake in the entry
 Only the day and month of the date of birth.
If it involves the year itself, it will affect your
age. It is no longer allowed for
administrative correction. You have to go to
court. That is not covered by RA 10172.
 Sex or gender of person
2. Clerical error that is patently clear
 Can you consider an error pertaining to
nationality, age, status, or sex as merely
clerical/typo? Not under RA 9048. But under
RA 10172, sex of persons are now included.
RA 9048 now governs the change of first name. It vests the
power and authority to entertain petitions for change of first
name to the city or municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction over
applications for change of first name is now primarily lodged
with the aforementioned administrative officers.
The intent and effect of the law is to exclude the change of
first name from the coverage of Rules 103 (Change of Name)
and 108 (Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court, until and unless an
administrative petition for change of name is first filed and
subsequently denied.
It likewise lays down the corresponding venue, form, and
procedure. In sum, the remedy and the proceedings regulating
change of first name are primarily administrative in nature, not
judicial. (Silverio vs. Republic)
In Lee vs. CA, the Supreme Court explained that RA 9048 is
Congress' response to the confusion wrought by the failure to
delineate as to what exactly is that so-called summary
procedure for changes or corrections of a harmless or
innocuous nature as distinguished from that appropriate
adversary proceeding for changes or corrections of a
substantial kind. For we must admit that though we have
constantly referred to an appropriate adversary proceeding, we
have failed to categorically state just what that procedure is.
Republic Act No. 9048 now embodies that summary procedure
while Rule 108 is that appropriate adversary proceeding. Be
that as it may, the case at bar cannot be decided on the basis
of Republic Act No. 9048 which has prospective application.
Hence, the necessity for the preceding treatise.
What are the grounds for the change of first name?
1. The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult
to write or pronounce;
2. The new first name or nickname has been habitually
and continuously used by the petitioner and he has
been publicly known by that by that first name or
nickname in the community; or
3. The change will avoid confusion.
Nota Bene: Sex reassignment is an invalid ground.
In Silverio vs. Republic, petitioner’s basis in praying for the
change of his first name was his sex reassignment. He
intended to make his first name compatible with the sex he
thought he transformed himself into through surgery.
However, a change of name does not alter one’s legal capacity
or civil status. RA 9048 does not sanction a change of first
name on the ground of sex reassignment. Rather than
avoiding confusion, changing petitioner’s first name for his
declared purpose may only create grave complications in the
civil registry and the public interest.
Who may file the petition?
For change of name, clerical error in day and month of birth,
and other clerical errors:
 Any person having direct and personal interest in the
correction of a clerical or typographical error in an
entry and/or change of first name or nickname in the
civil register may file the petition (Sec 3, RA 9048,
Rule 3 IRR)
 When a person is a minor or physically and mentally
incapacitated, the petition may be filed on his behalf
by his spouse, or any of his children, parents,
brothers, sisters, grandparents, guardians or persons
duly authorized by law.
 Person having direct and personal interest
o Owner of the record; or - Owner’s spouse,
children, parents, brothers, sisters,
grandparents, guardians or persons duly
authorized by law; or - Owner of the
document sought to be corrected. (Sec 3, RA
9048; Rule 3, IRR)
o Person affected by the error (Rule 3.2 IRR)
Hindi pwede ang spouse, anak, relative,
grandparents, etc.
What is the form of the petition?
1. In the form of an affidavit: subscribed and sworn to
before any person authorized by the law to administer
oaths. - set forth facts necessary to establish the
merits of the petition and shall show affirmatively that
the petitioner is competent to testify to the matters
stated.
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Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

2. State the particular erroneous entry or entries, which i. Resident Petitioner

are sought to be corrected and/or the change sought
a. In a conspicuous place provided for that
to be made. (Sec 5, RA 9048; Rule 8, IRR)
purpose
What is the manner of filing?
b. For 10 consecutive days after favorable
 It is Personal filing as provided under Sec 3, RA 9048; assessment
Rule 8 IRR
ii. Migrant Petitioner
Where should petition be filed?
a. Office of the PRCR for 10 consecutive days
1. Change of first name, error in day and month of birth
b. Office of the RKCR for another 10 days
 Resident petitioner With the LCRO of the city
iii. Non-resident Petitioner
or municipality or with the Office of the Clerk
of the Sharia Court, as the case may be, a. Where petition is filed and where record is
where the record is registered (Sec 3, RA kept
9048; Rule 4, IRR)
For Publication Requirement
 Migrant petitioner (transferred residence)
with the petition receiving civil registrar of i. Resident petitioner
the place where the migrant petitioner is a. Once a week for 2 successive newspaper
residing or domiciled. circulation weeks in of general
 Non-resident petitioner (residing abroad) ii. Migrant Petitioner
With the nearest Philippine Consulate for
persons whose civil registry record was a. Publication is made in a national newspaper
registered in the Philippines, or in any iii. Non-resident Petitioner
Philippine Embassy
a. File it abroad, 2 publications where petition
2. Error in sex is filed and where record is kept
 With the C/MCR of the city or municipality or What are the duties of the Civil Registrar?
the Philippine Consulate, as the case may
be, where the record is registered (Rule 4.2 1. Examine the petition and conduct investigation
IRR) 2. Post petition in a conspicuous place for 10
What are the attachments to the petition? consecutive days after finding it and its supporting
documents sufficient in form and substance
1. Certified machine copy of the certificate containing
the alleged erroneous entry or entries 3. Act on the petition and render decision not later than
5 working days after completion of posting and/or
2. Not less than 2 public or private documents upon publication requirement
which the correction shall be based
4. Transmit copy of decision together with records the
3. Notice and Certificate of Posting - Certified machine proceedings to the Office of Civil Registrar General
copy of Official Receipt of the filing fee - Other within 5 working days after the date of decision
documents as may be required by the City/Municipal
Civil Registrar (C/MCR) (Sec 5, RA 9048, Rule 8, IRR) 5. Perform such other duties and functions as may be
necessary to carry out the provisions of RA 9048 (Sec
What are the additional attachments for the change of 6, RA 9048; Rule 10, IRR)
name (RA 9048, Rule 8, 8.2 IRR)?
The Decision shall become final and executory if not impugned
1. Clearance or certification that owner of document has by the Civil Registry General. Changes shall be reflected in the
no pending administrative, civil or criminal case, or no birth certificate by way of marginal annotation.
criminal record, by the following:
Final decision approving change of first name sufficient basis in
a. Employer, if employed changing the first name of the same person in his other
b. National Bureau of Investigation affected records without need for filing a similar petition.

c. Philippine National Police
2. Affidavit of publication from the publisher and a copy
of the newspaper clipping. In petition for change of
First Name, publication in newspaper of general
circulation is required. In other cases, posting in
conspicuous public places is required.
What are the additional attachments for the change of
name (RA 10172)?
1. Medical records
2. Baptismal certificate or other documents issued
by religious authorities
3. For correction of sex – Certification by a
government physician attesting to the fact of
non-sex transplant or non-sex change
What are the posting and publication requirements?
Petitioner needs only to file a request with the concerned civil
registrar to make such marginal annotation attaching thereto a
copy of the decision (Rule 12 IRR).
What are the grounds for the denial of the petition?
1. The supporting documents are not authentic and
genuine.
2. The C/MCR has personal knowledge that a similar
petition is filed or pending in court or in any other
3. LCRO.
4. The petition involves the same entry in the same
document, which was previously corrected or
changed under this Order.
5. The petition involves the change of the status, sex,
age or nationality of the petitioner or of any person
named in the document.

For Posting Requirement 6. Such other grounds as the C/MCR may deem not
proper for correction.
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Rule 92 and beyond | Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

7. In the case of petition for change of first name or

nickname, any of the grounds provided in Sec 4 of RA
9048 are not present in addition to the
abovementioned (Rule 5, 5.8 IRR).
What are the remedies upon denial of the petition?
1. Appeal the decision to the CRG within ten (10)
working days from the receipt of the decision on the
following grounds:
 Newly discovered evidence which shall
materially affect, alter, modify or reverse the
decision of the C/MCR
 Denial of the C/MCR is erroneous or not
supported with evidence
 Denial of the C/MCR is done with grave
abuse of authority or discretion
 CRG shall render a decision within 30
calendar days after receipt of the appeal and
shall furnish the C/MCR, CG or D/CR a copy
of the decision not later than 10 working
date after date of decision
2. File the appropriate petition with the proper court
 May be filed even beyond period to appeal
(Rule 13 and 14 IRR)
When can decision be impugned?
 Within 10 working days from receipt of decision
granting decision
Who may impugn the decision?
 The Civil Registrar General (CRG)
What is the effect of failure to impugn the decision?
1. File MR within 15 working days from receipt of
decision on the ground of newly discovered evidence
 CRG shall resolve the MR within 30 working
days, thereafter the decision becomes final
and executory
2. File separate petition in court
In Re: Judicial Audit RTC 67 AM No 06-7-414-RTC, October 19,
2007
May the court apply RA 9048 for petitions for name change or
correction of entries, without hearing and publication
requirements?
No. Since R.A. No. 9048 refers specifically to the administrative
summary proceeding before the local civil registrar it would be
inappropriate to apply the same procedure to petitions for the
correction of entries in the civil registry before the courts. In
other words, you do not apply the procedure under RA 9048
for proceedings under Rule 108 since it is judicial.
The procedures are different. You cannot use RA 9048
procedure under a petition for correction under Rule 108. The
promulgation of rules of procedure for courts of justice is the
exclusive domain of the Supreme Court.

- END OF THE SEMESTER -

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