RULE ON CUSTODY OF MINORS and WRIT OF
HABEAS CORPUS IN RELATION TO THE Corpus involving minors: In cases involving
CUSTODY OF MINORS
(A.M. No. 03-04-04-SC)
Who may file the petition for the RIGHTFUL
CUSTODY OF MINOR: A verified petition for the
rightful custody may be filed by any person
claiming such right (A.M. No. 03-04-04-SC, Sec. 2).
Where to file PETITION FOR RIGHTFUL
CUSTODY OF MINOR: Family Court of the
province or city where the petitioner resides or
where the minor may be found (A.M. No. 03-04-
04-SC, Sec. 3).
Where to file a PETITION FOR WRIT OF
HABEAS CORPUS involving custody of minors:
General Rule: 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 the judicial region to which
the Family Court belongs (A.M. No. 03-04-04-SC,
Sec. 20).
Exception: The petition may however 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 SC, CA or
with any of its members and, if granted, the writ
shall be enforceable anywhere in the
Philippines. The writ may be made returnable to
a Family Court or to any regular court within the
region where the petitioner resides or where the
minor may be found for hearing and decision on
the merits (Id.).
Requisites in Petitions for Habeas Corpus
involving minors:
1. That the petitioner has the right of custody
over the minor;
2. That the rightful custody of the minor is
being withheld from the petitioner by the
respondent; and
3. That it is to the best interest of the minor
concerned to be in the custody of petitioner
and not that of the respondent (Sombong vs.
CA, et. al. G.R. No. 111876, 31 January 1996).
Purpose of the Petition for the Writ of Habeas
minors, the purpose of a petition for habeas
corpus is NOT limited to the production of the
child before the court; the main purpose of the
petition for habeas corpus is to determine who has
the rightful custody over the child (Bagtas vs.
Santos, G.R. No. 166682, 27 November 2009).
Contents of the Verified Petition:
1. The personal circumstances of the petitioner
and respondent;
2. The name, age and present whereabouts of
the minor and his/her relationship to the
petitioner and respondent;
3. The material operative facts constituting
deprivation of custody; and
4. Such other matters which are relevant to the
custody of the minor (A.M. No. 03-04-04-SC,
Sec. 4).
Will a Motion to Dismiss prosper?
General Rule: NO. It is not allowed.
Exception: On the ground of lack of jurisdiction
over the subject matter or the parties (A.M. No.
03-04-04-SC, Sec. 6).
Remedy: Any ground other than lack of
jurisdiction over the subject matter or parties to
warrant dismissal may be raised as an affirmative
defense.
Filing of ANSWER: Period
Respondent must file a verified answer within five
(5) days from the service of summons and copy of
the petition (A.M. No. 03-04-04-SC, Sec. 7).
Pre-Trial:
It is MANDATORY. (A.M. No. 03-04-04-SC, Sec. 9).
Effects of Failure to appear at the Pre-Trial:
1. 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.
2. 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 (A.M. No. 03-04-
04-SC, Sec. 11).
 Failure to file the pre-trial brief or to comply
with its required content shall have the same
effect as failure to appear at the pre-trial (A.M. No.
03-04-04-SC, Sec. 10).
Provisional Order Awarding Custody: As far as
practicable, the following order of preference shall
be observed in the award of the custody:
 NO APPEAL SHALL BE ALLOWED UNLESS A
MOTION OR RECONSIDERATION OR NEW TRIAL
HAS BEEN FILED.
 A judgment involving the custody of a minor
child cannot be accorded the force and effect of res
judicata (Beckett vs. Hon. Sarmiento, Jr., A.M. No.
RTH+J-12-2326, 30 January 2013).

1. Both parents, jointly; In case of Legal Separation of the Parents:

2. Either parent, taking into account all relevant
considerations, especially the choice of the
minor over 7 years of age and of sufficient
discernment unless the parent chosen is
UNFIT;
3. The Grandparent or if there are several
grandparents, the grandparent chosen by the
minor over 7 years of age and of sufficient
discernment, unless the grandparent chosen
is UNFIT or DISQUALIFIED;
4. The eldest brother or sister over 21 years of
age unless he/she is UNFIT or
DISQUALIFIED;
5. The actual custodian of the minor over 21
years of age, unless the former is UNFIT or
DISQUALIFIED; or
6. Any other person or institution the court may
deem suitable to provide proper care and
guidance for the minor (A.M. No. 03-04-04-
SC, Sec. 13).
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 (A.M. No. 03-04-04-SC, Sec. 15)
The custody of the minor children shall be
awarded to the innocent spouse, unless
otherwise directed by the court in the interest of
the minor children.
But when the husband and wife are living
separately and apart from each other, without
decree of the court, the court shall award the care,
custody, and control of each child as will be for his
best interest, permitting the child to choose which
parent he prefers to live with if he is over 7 years
of age unless the parent so chosen be unfit to take
charge of the child by reason of moral depravity,
habitual drunkenness or poverty (Sy vs. CA, G.R.
No. 124518, 27 December 2007).
By filing a Petition for Declaration of Nullity of
Marriage, the issue of custody of the children is
deemed automatically submitted pursuant to the
express provisions of Articles 49 and 50 of the
Family Code (Yu vs. Yu, G.R. No. 164915, 10 March
2006)

Hold Departure Order:

The minor 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 propio or upon application under

oath, may issue an ex parte hold departure order
(A.M. No. 03-04-04-SC, Sec. 16).

 The court may also issue a Protection Order

(A.M. No. 03-04-04-SC, Sec. 17).

APPEAL:
Notice of Appeal may be filed within 15 days from
notice of denial of Motion for Reconsideration or
New Trial (A.M. No. 03-04-04-SC, Sec. 19).