Professional Documents
Culture Documents
Special Proceedings
Special Proceedings
Remedial Law
SUMMER REVIEWER
—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.
Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan—
Remedial Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
h. Habeas corpus
i. SC (original, concurrent with RTC) RULE 73
ii. CA (original, concurrent with RTC) VENUE AND PROCESS
iii. RTC (within its respective region)
iv. MTC (in absence of RTC judges in Section 1. Where estate of deceased person
province/city) settled
Section 2. Where estate settled upon dissolution
i. Change of name of marriage
i. Judicial (Rules of Court): RTC in place Section 3. Process
where petitioner resides Section 4. Presumption of death
ii. Administrative (RA 9048):
Civil registar where entry is located or if According to Circular No. 21-99 (15 April 1999), the
applicant migrated: civil registar in place new jurisdictional amounts as adjudged under RA
where he resides 7691 will be as follows:
Consul General: if applicant resides
abroad File in the RTC:
Before 14 14 April Beginning
j. Voluntary dissolution of corporations: SEC April 1999 1999 – 31 Year 2004
December
k. Constitution of family home: under the Family 2003
Code, it is deemed constituted on a house and In Metro >P200,000 >P400,000 >P400,000
lot from the time it is occupied as a family Manila
residence Outside >P100,000 >P200,000 >P300,000
Manila
l. Declaration of absence
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place whereare needed
absentee resided before his
to see this picture. File in the MTC:
disappearance Before 14 14 April Beginning
April 1999 1999 – 31 Year 2004
m. Cancellation of correction of entries in civil December
registry 2003
i. Judicial (Rules of Court): RTC in place In M. ≤P200,000 ≤P400,000 ≤P400,000
where the civil registry is located Manila
ii. Administrative (RA 1948): Outside ≤P100,000 ≤P200,000 ≤P300,000
Manila
or had no notice of the settlement. § 4, Rule 74, is not Section 1. Allowances necessary; Conclusive as
meant to be a statute of limitations. An extrajudicial to execution
partition, being merely an ex parte proceeding, would Section 2. Custodian of will to deliver
not affect third persons who had no knowledge Section 3. Executor to present will and accept or
thereof. By its registration in the manner provided by refuse trust
law, a transaction may be known actually or Section 4. Custodian and executor subject to fine
constructively. for neglect
Section 5. Person retaining will may be of non-resident, that he left an estate within
committed such territorial jurisdiction).
WHO MAY PETITION FOR THE ALLOWANCE OF When does court acquire jurisdiction?
A WILL: Upon PUBLICATION for 3 weeks successively of the
a. Any creditor as preparatory step for filing his order setting the case for hearing AND sending of
claim therein; NOTICES (20 days before hearing by mail, 10 days
b. Devisee or legatee before by personal notice) to all persons interested.
c. Person interested in the estate (heirs)
d. Executor Section 5. Proof at hearing
e. Testator himself during his lifetime.
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EVIDENCE IN SUPPORT OF PROBATE OF
WHO MAY BE A PARTY INseeAthisPROBATE?
are needed to picture. UNCONTESTED WILL
Generally, any person having a direct and material a. Notarial Wills – testimony of at least 1 of the
interest in the will or estate subscribing witnesses; deposition allowed if
witnesses outside the province (Sec. 7)
JURISDICTIONAL FACTS ALLEGED IN PETITION b. Holographic Wills – testimony of 1 witness
FOR PROBATE: who knows the handwriting and signature of
a. Person died leaving a will; the testator. In the absence thereof, testimony
b. In case of a resident, that he resided within the of an expert witness.
territorial jurisdiction of the court; (in the case
Section 6. Proof of lost or destroyed will the testator. In the absence thereof, testimony
of an expert witness.
HOW WILL IS PROVEN AS LOST OR
DESTROYED: Section 12. Proof where testator petitions for
a. Prove that will: allowance of holographic will
i. Was in existence at time of testator’s Section 13. Certificate of allowance attached to
death, OR proved will
ii. Was fraudulently or accidentally
destroyed in testator’s lifetime without his
knowledge;
b. Provisions of will must be clearly and distinctly
proven by at least 2 credible witnesses RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE OF
Section 7. Proof when witnesses do not reside in PHILIPPINES AND ADMINISTRATION OF ESTATE
province THEREUNDER
Section 8. Proof when witnesses dead or insane
or do not reside in the Philippines Section 1. Will proved outside Philippines may be
Section 9. Grounds for disallowing will allowed here
Section 2. Notice of hearing for allowance
GROUNDS FOR DISALLOWING WILL: Section 3. When will allowed, and effect thereof
a. Not executed and attested as required by law; Section 4. Estate, how administered
b. Testator was mentally incapacitated to make a
will or insane at the time of execution; IN RE-PROBATE OF WILL PROVEN ABROAD,
c. Executed under duress, influence of fear, or PROPONENT MUST PROVE:
threats; a. Testator was domiciled in the foreign country;
d. Procured by undue and improper influence and b. Will has been admitted to probate in such
pressure on the part of the beneficiary or of country;
some other person for his/her benefit; c. Foreign country was, under the laws of such
e. Signature of testator was procured by country, a probate court with jurisdiction;
fraud/trick and she/he did not intend instrument d. Law on foreign probate procedure and proof of
to be will. compliance therewith;
e. Legal requirements in said country for valid
GENERAL RULE: HOLOGRAPHIC WILL execution of will.
If destroyed, cannot be probated.
requirement (the last; see Rule 76); and (2) in the Section 3. Bonds of joint executors and
latter, no need to name creditors in the petition. administrators
Section 4. Bond of special administrator
GROUNDS FOR OPPOSITION:
a. In Letters Testamentary: UNDERTAKINGS OF BOND OF
i. Incompetence EXECUTOR/ADMINISTRATOR:
b. In Letters of Administration: a. Make and return a complete inventory of the
i. Incompetence property of the estate which has come to his
ii. Preferential right of the heir under Rule 78 possession or knowledge, or the possession of
any person for him, within 3 months;
b. To administer the property of the estate
according to the Rules (if administrator) or
RULE 80 according to the will (if executor);
SPECIAL ADMINISTRATOR c. To render an account within 1 year and at any
other time required by the court; and
Section 1. Appointment of special administrator d. Perform all orders of the court.
Section 2. Powers and duties of special
administrator
Section 3. When powers of special administrator
cease; Transfer of effects; Pending suits RULE 82
REVOCATION OF ADMINISTRATION, DEATH,
SPECIAL ADMINISTRATOR RESIGNATION, AND REMOVAL OF EXECUTORS
He is appointed when there is a delay in granting AND ADMINISTRATORS
letters testamentary or of administration by any
cause, including an appeal from the allowance or Section 1. Administration revoked if will
disallowance of the will. discovered; Proceedings thereupon
Section 2. Court may remove or accept
ORDER OF APPOINTMENT DISCRETIONARY resignation of executor or administrator;
The preference accorded by Rule 78 refers to the Proceedings upon death, resignation, or removal
appointment of a regular administrator. Section 3. Acts before revocation, resignation, or
removal to be valid
Is the Order of Special Administrator appealable? Section 4. Powers of new executor or
No, such is an interlocutory order. administrator
Claims referred to under this section refer to 2. Foreclose his mortgage or realize upon his
claims for the recovery of money and which are not security by action in court making the executor
secured by a lien against the property of the estate. or administrator a party defendant and if there
is judgment for DEFICIENCY, he may file a
Claims which should not be filed under the claim (contingent) against the estate within the
Statute of Non-claims (ACTIONS WHICH DO NOT statute of non-claims;
SURVIVE) 3. Rely solely on his mortgage and foreclose
1. Money claims, debts incurred by deceased (judicial or extrajudicial) the same at anytime
during his lifetime arising from contract: within the period of the statute of limitations but
a. express or implied; he cannot be admitted as creditor and shall not
b. due or not due; receive in the distribution of the other assets of
c. absolute or contingent; the estate.
2. Claims for funeral expenses;
3. For the last illness of the decedent; and NOTE: These remedies are alternative, the
4. Judgment for money against decedent. availment of one bars the availment of other
remedies.
ABSOLUTE CLAIM
It is such a claim as, if contested between living Section 8. Claim of executor or administrator
persons, would be proper subject of immediate legal against an estate
action and would supply a basis of a judgment for a
sum certain. One of the instances where a special administrator is
appointed.
CONTINGENT CLAIM
It is a conditional claim or claim that is subject to the Section 9. How to file a claim. Contents thereof;
happening of a future uncertain event. Notice to executor or administrator
Claims not yet due or contingent may be approved at HOW TO FILE A CLAIM:
their present value. 1. deliver the claim with the necessary vouchers
to the clerk or court;
A claim that is extinguished by death should be 2. serve a copy thereof on the executor or
distinguished from an action which does not survive. administrator;
A claim is extinguished by reason of death if the 3. if the claim is due, it must be supported by
action is personal to either parties such as in cases of affidavit stating the amount due and the fact
legal separation, annulment or declaration of nullity. that there has been no offsets;
4. if the claim is not due or contingent, it must
Section 6. Solidary obligation of decedent be accompanied by affidavit stating the
particulars thereof.
Juacian v. Querol, 38 Phil 707 (1918)
Claim should be filed against decedent as if he Section 10. Answer of executor or administrator;
were the only debtor without prejudice on th part of Offsets
the estate to recover contribution from the other
debtor. Executor may file answer within 15 days from service
of claim.
Joint Obligation of decedent
Answer must set forth claims which decedent has
The claim must be confined to the portion belonging
against claimant or else it will forever be barred.
to the decedent.
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are needed to see this picture. Section 11. Disposition of admitted claim
Section 7. Mortgage debt due from estate
If executor or administrator admits claim, the heir,
ALTERNATIVE REMEDIS OF THE CREDITOR
legatee or devisee may oppose it.
HOLDING A CLAIM SECURED BY A MORTGAGE
OR OTHER COLLATERAL SECURITY
Section 12. Trial of contested claim
1. Abandon the security and prosecute his claim
against the estate and share in the general
The court may refer the claim to a commissioner.
distribution of the assets of the estate;
Before distribution is made or before any residue is REQUISITES BEFORE ACTION MAY BE FILED BY
known, the heirs and devisees have no cause of CREDITORS
action against the executor or administrator for 1. there is a DEFICIENCY of assets in the hands
recovery of the property left by the decedent. of an executor or administrator for the payment
of debts and expenses of administration;
Section 4. Executor or administrator may 2. the deceased in his lifetime had made or
compound with debtor attempted to make a FRAUDULENT
CONVEYANCE of his property or had so
conveyed such property that by law the 1. when the personal estate of the decedent is
conveyance would be void as against his not sufficient for that purpose;
creditors; 2. where the sale of such personalty would be to
3. the subject of the attempted conveyance would the detriment of the participants of the estate.
be liable to ATTACHMENT in his lifetime;
4. the executor or administrator has shown NO ORDER OF PAYMENT OF DEBTS:
DESIRE TO FILE action the action or failed to a. From portion of property designated in the will;
institute the same within a reasonable time; b. From personal property not disposed of by will;
5. LEAVE is granted by the court to the creditor c. From real property not disposed of by will.
to file the action;
6. a BOND is filed by the creditor; Section 4. Estate to be retained to meet
7. the action by the creditor is in the NAME of the contingent claims
executor or administrator.
If the court is satisfied that contingent claim duly filed
NOTE: However, the last three requisites are is valid, it may order the executor or administrator to
unnecessary where the grantee is the executor or retain in his hands sufficient estate to pay a portion
administrator himself, in which event the action equal to the dividend of the creditors.
should be in the name of all creditors.
REQUISITES:
1. Contingent claim is duly filed;
2. Court is satisfied that the claim is valid; and
RULE 88 3. The claim has become absolute.
PAYMENT OF THE DEBTS OF THE ESTATE
Section 5. How contingent claim becoming
Section 1. Debts paid in full if estate sufficient absolute in two years allowed and paid; Action
against distributes later
Writ of execution is not the proper procedure to
satisfy debts. Court must ORDER THE SALE OR If such contingent claim becomes absolute and is
MORTAGE of the properties of decedent, the presented to the court or to the executor or
proceeds of which will satisfy the debts and administrator, within two years from the time limited
expenses. for other creditors to present their claims, it may be
allowed by the court.
Is execution a proper remedy to satisfy an
approved claim? Jaucian v. Querol, supra
NO, because: If the contingent claim matures after the
1. Payment approving a claim does not create a expiration of the two years, the creditors may sue the
lien upon a property of the estate; distributees, who are liable in proportion to the shares
2. Special procedure is for the court to order the in the estate respectively received by them.
sale to satisfy the claim.
De Bautista v. De Guzman, 125 SCRA 682 (1983)
Section 2. Part of estate from which debt paid It has been ruled that the only instance wherein a
when provision made by will creditor can file an action against a distributee of the
debtor’s assets is under Section 5, Rule 88 of the
If the testator makes a provision in his will or Rules of Court. The contingent claims must first have
designates the estate to be appropriated for the been established and allowed in the probate court
payment of his debts that will be followed. But if it is before the creditors can file an action directly against
no sufficient, such part of the
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disposed of by will,areifneeded
any, shall
to see be appropriated for
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that purpose.
Section 6. Court to fix contributive shares where
devisees, legatees, or heirs have been in
Section 3. Personalty first chargeable for debts,
possession
then realty
Section 7. Order of payment if estate is insolvent
2 INSTANCES WHEN REALTY IS LIABLE FOR
If estate is insolvent, as in liabilities are more than
DEBTS AND EXPENSES:
assets, Sec. 7 in relation to Arts. 1059 and 2239 to
2251 of the Civil Code (Concurrence and Preference Successor of deceased executor or administrator
of Credits) must apply. may be given an extension not to exceed 6 months.
What is the basis of the state’s right to receive Section 5. Other actions for escheat
property in escheat? Order of succession under
MINOR INCOMPETENT
RULE 92 (a) any relative; or (a) any relative; or
VENUE (b) other person on (b) friend; or
behalf of a minor; or
Section 1. Where to institute proceedings (c) the minor himself if 14 (c) other person on
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years of age or over; behalf of the resident
INCOMPETENTS – RTC of his residence or where
are needed to see this picture. or incompetent who has
his property is located in case of non-residents (Sec. no parents or lawful
1) guardian; or
(d) the Secretary of (d) the Director of Health
MINORS – Family Court of his residence or where Social Welfare and in favor of an insane
his property is located in case of non-resident (Sec. Development AND by person who should
3, A.M. No. 03-02-05-SC) the Secretary of be hospitalized or in
Health in case of an favor of an isolated
“Residence” means “domicile”. insane minor who leper (Sec. 1); or
Section 2. Contents of Petition Notice of date and place of hearing to be given to all
persons named in the petition residing in the
MINOR INCOMPETENT province, and to the minor himself if over 14 (NOTE:
(a) The jurisdictional (a) The jurisdictional not “14 or over”).
facts; facts;
(b) the name, age and (b) The incompetency There is NO requirement for PUBLICATION only
residence of the rendering the NOTICE except in case of non-resident minor or
prospective ward; appointment incompetent.
necessary or
convenient; However, service of NOTICE upon minor if above 14
(c) the ground rendering (c) the probable value years of age or upon incompetent is mandatory and
the appointment and character of his jurisdictional.
necessary or estate;
convenient; If the person is insane, service of notice upon the
(d) the death of the (d) the names, ages, Director of Hospital where he is hospitalized is
parents of the minor and residences of the sufficient.
or the termination, relatives of the
deprivation or incompetent, and of Section 4. Opposition to petition
suspension of their the persons having
parental authority; him in their care; GROUNDS:
1. Majority of alleged minor;
(e) the remarriage of the (e) the name of the
2. Competency of alleged incompetent;
minor’s surviving person for whom
3. Unsuitability of the persons for whom letters
parent; letters of
are prayed.
guardianship are
prayed. (Section 2 of
PROCEDURE OF GUARDIANSHIP PROCEEDINGS
Rule 93)
1. filing of petition;
(f) the names, ages, and (f) any one interested in
2. court shall set the case for hearing;
residences of relative the estate of a non-
3. cause notices to be served to the persons
within the 4th civil resident incompetent
mentioned in the petition, including the minor, if
degree of minor, and (Section 6)
above 14 years of age;
of persons having him
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in their care and
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are needed to see this picture. 5. declaration of the propriety of the petition;
custody;
6. issue letters of guardianship.
(g) the probable value,
character and location
Section 5. Hearing and order for letters to issue
of the property of the
Section 6. When and how guardian for
minor; and
nonresident appointed; Notice
(h) the name, age and
residence of the Any relative, friend or any one interested in the estate
person from whom of a person liable to be put under guardianship may
The authority to sell or encumber shall not extend Section 1. Petition that competency of ward be
beyond 1 year unless renewed by the court. adjudged and proceedings thereupon
Section 5. Court may order investment of Petition shall be verified by oath and shall state that
proceeds and direct management of estate such person is then competent.
4. when the best interest of the minor so requires. A verified petition for approval of the bond shall be
filed in the Family Court of the place where the
B. Considerations in Appointing Guardians (Sec. child resides or, if the child resides in a foreign
5) country, in the Family Court of the place where
1. moral character; the property or any part thereof is situated.
2. physical, mental and psychological condition;
3. financial status; The petition shall be docketed as a summary
4. relationship of trust with the minor; special proceeding in which all incidents and
5. availability to exercise the powers and duties of issues regarding the performance of the
a guardian for the full period of the obligations of a general guardian shall be heard
guardianship; and resolved.
6. lack of conflict of interest with the minor; and
7. ability to manage the property of the minor F. Removal or Resignation of Guardian (Sec. 24)
C. Who may be appointed guardian of the person No motion for removal or resignation shall be
or property, or both, of a minor (Sec. 6) granted unless the guardian has submitted the
proper accounting of the property of the ward and
In default of parents or a court appointed the court has approved the same.
guardian, the court may appoint a guardian of a
minor, observing as far as practicable, the G. Grounds for termination of Guardianship (Sec.
following ORDER OF PREFERENCE: 25)
1. the SURVIVING GRANDPARENT and In case The court motu proprio or upon verified motion of
several grandparents survive, the court shall any person allowed to file a petition for
select any of them taking Into account all guardianship may terminate the guardianship on
relevant considerations; the ground that the ward has COME OF AGE or
2. the OLDEST BROTHER OR SISTER of the has DIED. The guardian shall notify the court of
minor over twenty-one years of age, unless such fact within 10 days of its occurrence.
unfit or disqualified;
3. the ACTUAL CUSTODIAN of the minor over
twenty-one years of age, unless unfit or
disqualified; and RULE 98
4. any OTHER PERSON, who in the sound TRUSTEES
discretion of the court, would serve the best
interests of the minor. EXECUTOR/ GUARDIAN TRUSTEE
ADMINISTRATOR
D. Case Study Report (Sec. 9) Accounts are not Accounts must Accounts
under oath and be under oath must be
The court shall order a social worker to conduct a except for initial and filed under oath
case study of the minor and all prospective and final annually. and filed
guardians and submit report and recommendation submission of annually.
to the court for its guidance before the scheduled accounts, they
hearing. shall be filed only
at such times as
E. Bond of parents as guardian of property of may be required
minor (Sec. 16) by the court.
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Court that has Court which Court which
If the market value of tothe
are needed property
see this picture. or the annual jurisdiction may be has jurisdiction has
income of the child exceeds P50,000, the parent MTC or RTC. is RTC jurisdiction is
concerned shall furnish a bond in such amount as (incompetent) MTC or RTC
the court may determine, but in no case less than or Family Court if appointed to
10% of the value of such property or income, to (minor). carry into
guarantee the performance of the obligations effect
prescribed for general guardians. provisions of
a will; if
trustee dies,
(b) One who seeks to adopt the legitimate 3. Any child placement or child caring agencies.
son/daughter of his/her Filipino spouse;
(c) One who is married to a Filipino citizen and VENUE (Sec. 4b): Family Court of the province or
seeks to adopt jointly with his/her spouse a city in which the parent or guardian resides or where
relative within the 4th civil degree of the child is found.
consanguinity or affinity or the Filipino
spouse. WHO SHALL BE SUMMONED (Sec. 4c)
1. Parent or guardian of the child;
WHO MAY BE ADOPTED (Sec. 5) 2. Office of the public prosecutor.
1. Any person below eighteen (18) years of age
who has been judicially declared available for WHEN MAY SUMMONS NOT BE ISSUED (Sec. 4d)
adoption OR voluntarily committed to DSWD; 1. If it appears from the petition that both parents
2. The legitimate child of one spouse by the other of the child are dead; or
spouse; 2. That neither parent can be found in the
3. An illegitimate child by a qualified adopter to province or city where the court is located and
raise the status of the former to that of the child has no guardian residing therein.
legitimacy;
4. A person of legal age regardless of civil status, In case no summons is issued, the court has the duty
if, prior to the adoption, said person has been of appointing a guardian ad litem and shall proceed
consistently considered and treated by the with the hearing of the case with due notice to the
adopters as their own child since minority; provincial or city prosecutor.
5. A child whose adoption has been previously
rescinded; There is no answer here. Only hearing is required.
6. A child whose biological or adoptive parents
have died; CHILD’S RIGHT TO COUNSEL (Sec. 4g)
7. A child not otherwise disqualified by law or The court, upon request of the child capable of
these rules. forming his own views or upon request of his
guardian ad litem, shall appoint a lawyer to represent
“A child legally available for adoption” refers to a him in the proceedings.
child who has been voluntarily committed to the
DSWD or to a duly licensed and accredited child- DUTY OF THE PUBLIC PROSECUTOR (Sec. 4h)
placing or child caring agency, freed of the parental The provincial or city prosecutor shall appear for the
authority of his biological parents. State and ascertain if there has been due notice to all
parties concerned and that there is justification for the
2 WAYS TO COMMIT A CHILD declaration of dependency, abandonment or neglect.
1. Administrative/Voluntary – In this case, the
parent or guardian of the child voluntarily JUDGMENT (Sec. 4j)
committed him to the DSWD or any duly If, after hearing, the court shall find the child to be
licensed child placement or child caring dependent, abandoned, or neglected, it shall render
agency. The child must be surrendered in judgment committing him to the care and custody of
writing. Such written instrument must be the DSWD or any child placement or child caring
notarized and signed in the presence of an agency.
authorized representative of the department
after counseling has been made to encourage However, if the court finds, that the abandonment or
the parents to keep the child. (Sec. 5, A.M. No. neglect of the child may be remedied, the child may
02-1-19-SC) be allowed to stay in his home under the care and
2. Judicial/Involuntary – Follow
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A.M. No. 02-1-19-SC.
are needed to see this picture. the DSWD.
1. If one spouse seeks to adopt the legitimate (3) is married to a Filipino citizen and seeks to
son/daughter of the other; adopt jointly with his spouse a relative
2. If one spouse seeks to adopt his/her own within the 4th degree of consanguinity or
illegitimate son/daughter; affinity of the Filipino spouse.
3. If the spouses are legally separated from each
other. 3. If the adopter is the legal guardian of the
adoptee, the petition shall allege that
VENUE (Sec. 6): Family Court where the guardianship had been terminated and the
prospective adoptive parents reside. guardian had cleared his financial
accountabilities.
CONTENTS OF THE PETITION (Sec. 7)
1. If the adopter is a Filipino citizen, the petition 4. If the adopter is married, the spouse shall be a
shall allege the following: co-petitioner for joint adoption except if:
(a) The jurisdictional facts; (a) one spouse seeks to adopt the legitimate
(b) That the petitioner is of legal age, in child of the other; or
possession of full civil capacity and legal (b) if one spouse seeks to adopt his own
rights; is of good moral character; has not illegitimate child and the other spouse
been convicted of any crime involving moral signified written consent thereto; or
turpitude; is emotionally and psychologically (c) if the spouses are legally separated from
capable of caring for children; is at least 16 each other.
years older than the adoptee, unless the
adopter is the biological parent of the 5. If the adoptee is a foundling, the petition shall
adoptee or is the spouse of the adoptee’s allege the entries which should appear in his
parent; and is in a position to support and birth certificate, such as name of child, date of
care for his children in keeping with the birth, place of birth, if known; sex, name and
means of the family and has undergone citizenship of adoptive mother and father, and
pre-adoption services as required by Sec. 4 the date and place of their marriage.
of RA No. 8552.
6. If the petition prays for a change of name, it
2. If the adopter is an alien, the petition shall shall also state the cause or reason for the
allege the following: change of name.
(a) The jurisdictional facts;
(b) Sub-paragraph 1(b) above; In all petitions, it shall be alleged:
(c) That his country has diplomatic relations (a) The first name, surname or names, age and
with the Republic of the Philippines; residence of the adoptee as shown by his
(d) That he has been certified by his diplomatic record of birth, baptismal or foundling
or consular office or any appropriate certificate and school records;
government agency to have the legal (b) That the adoptee is not disqualified by law
capacity to adopt in his country and his to be adopted;
government allows the adoptee to enter his (c) The probable value and character of the
country as his adopted child and reside estate of the adoptee;
there permanently as an adopted child; and (d) The first name, surname or names by which
(e) That he has been living in the Philippines the adoptee is to be known and registered
for at least 3 continuous years prior to the in the Civil Registry.
filing of the petition and he maintains such
residence until the adoption decree is Petition shall be verified and specifically state at the
entered. QuickTime™ and a heading of the initiatory pleading whether the petition
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are needed to see this picture. contains an application for a change of name,
The requirement of certification of the alien’s rectification of simulated birth, voluntary or
qualification to adopt in his country and his involuntary commitment of children, or declaration of
residency may be waived if the alien: child as abandoned, dependent or neglected.
(1) is a former Filipino citizen who seeks to
adopt a relative within the 4th degree of A certification of non-forum shopping shall be
consanguinity or affinity; or included pursuant to Section 5, Rule 7 of the 1997
(2) seeks to adopt the legitimate child of his Rules of Civil Procedure.
Filipino spouse; or
ANNEXES TO THE PETITION (Sec. 11) the adoptee has been known which shall
1. Birth, baptismal or founding certificate, as be stated in the caption;
the case may be, and school records (2) The purpose of the petition;
showing the name, age and residence of the (3) The complete name which the adoptee will
adoptee; use in the petition is granted
2. Affidavit of consent of the following: (4) The date and place of hearing which shall
(a) The adoptee, if ten (10) years of age or be set within six (6) months from the date
over; of issuance of the order and shall direct that
(b) The biological parents of the child, if a copy thereof be published before the date
known, or the legal guardian, or the child- of hearing at least once a week for three
replacement agency, child-caring successive weeks in a newspaper of
agency, or the proper government general circulation in the province or city
instrumentality which has legal custody where the court is situated; Provided, that
of the child; in case of application for change of name,
(c) The legitimate and adopted children of the date set for hearing shall not be within
the adopter and of the adoptee, if any, four (4) months after the last publication
who are ten (10) years of age or over; of the notice nor within thirty (30) days prior
(d) The illegitimate children of the adopter to an election. The newspaper shall be
living with him who are ten (10)years of selected by raffle under the supervision of
age or over; and the Executive judge.
(e) The spouse, if any, of the adopter or (5) A directive to the social worker of the court,
adoptee. the social service office of the local
3. Child study report on the adoptee and his government unit or any child-placing or
biological parents; child-caring agency, or the Department to
4. If the petitioner is an alien, certification by his prepare and submit child and home study
diplomatic or consular office or any reports before the hearing if such reports
appropriate government agency that he has had not been attached to the petition due to
the legal capacity to adopt to his country and unavailability at the time of the filling of the
that his government allows the adoptee to latter; and
enter his country as his own adopted child (6) A directive to the social worker of the court
unless exempted under Section 4(2); to conduct counseling sessions with the
5. Home study report on the adopters. If the biological parents on the matter of adoption
adopter is an alien or residing abroad but of the adoptee and submit her report before
qualified to adopt, the home study report by the date of hearing.
the Inter-Country Adoption Board; and
6. Decree of annulment, nullity or legal B. CHILD & HOME STUDY REPORTS (Sec .13)
separation of the adopter as well as that of - social worker verifies with the Civil Registry
the biological parents of the adoptee, if any. the real identity and the name of adoptee
and the fact that he is legally available for
PROCEDURE adoption
A. ORDER OF HEARING (Sec 12) - social worker may make recommendations
- Must be published at least once a week for to the court if he finds some grounds to
3 CONSECUTIVE WEEKS. deny the petition.
- At the discretion of the court, copies of the
order of hearing shall be furnished to the C. HEARING (Sec 14)
office of the Sol.Gen. through the provincial - To held within 6 MONTHS from the date of
or city prosecutor, QuickTime™ and the a DSWD and the issuance of the order
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biological are parents
needed to see thisof the adoptee, IF
picture. EXCEPT in case of APPLICATION FOR
KNOWN. CHANGE OF NAME which hearing must not
- If a change in the name of the adoptee is be within 4 MONTHS after LAST
prayed for in the petition, notice to the PUBLICATION nor within 30 DAYS prior to
Sol.Gen. shall be MANDATORY. election
Before issuance of the decree of adoption, the All hearings and records are confidential. (Sec. 18)
court shall give the adopter trial custody of the
adoptee for a period of at least six (6) months.
(f) That he can provide the proper care and RESCISSION relates only as to the date of judgment.
support and instill the necessary moral values Hence, vested rights prior to rescission should be
and example to all his children, including the respected.
child to be adopted,
(g) That he agrees to uphold the basic rights of the Who files? (Sec. 19)
child, as embodied under Philippine laws and 1. ADOPTEE
the U.N. Convention on the Rights of the Child, (a) Over 18 years of age or
and to abide by the rules and regulations (b) If minor with assistance of DSWD
issued to implement the provisions of Republic 2. GUARDIAN or COUNSEL, if over 18 but
Act No. 8043, incapacitated.
(h) That he comes from a country with which the
Philippines has diplomatic relations and whose Lahom v. Sibulo, G.R. No. 143989 (2003)
government maintains a similarly authorized The new law withdrew the right of an adopter to
and accredited agency and that adoption of a rescind the adoption decree and gave to the adopted
Filipino child is allowed under his national laws; child the sole right to sever the legal ties created by
and adoption.
(i) That he possesses all the qualifications and
none of the disqualifications provided in this GROUNDS (Sec. 19)
Rule, in Republic Act. No. 8043 and in all other 1. Repeated physical violation and verbal
applicable Philippine laws. maltreatment by the adopter despite having
undergone counseling;
ANNEXES (Sec. 31) 2. Attempt on the life of the adoptee;
(a) Birth certificate of petitioner; 3. Sexual assault or violence; or
(b) Marriage contract, if married, and, if applicable, 4. Abandonment or failure to comply with parental
the divorce decree, or judgment dissolving the obligations
marriage;
(c) Sworn statement of consent of petitioner’s VENUE (Sec. 20)
biological or adopted children above ten (10) FAMILY COURT of the city or province where the
years of age; adoptee resides.
(d) Physical, medical and psychological evaluation
of the petitioner certified by a duly licensed PERIOD WITHIN WHICH TO FILE VERIFIED
physician and psychologist; PETITION (Sec. 21)
(e) Income tax returns or any authentic document Within 5 YEARS from reaching age of majority or
showing the current financial capability of the after recovery from incompetency.
petitioner;
(f) Police clearance of petitioner issued within six Adverse party shall file his ANSWER within 15 days
(6) months before the filing of the petitioner; from receipt of order of court requiring him to answer.
(g) Character reference from the local (Sec. 22)
church/minister, the petitioner’s employer and
a member of the immediate community who EFFECTS OF JUDGMENT OF RESCISSION
have known the petitioner for at least five (5) 1. Parental authority of biological parent or legal
years; custody of DSWD will be resorted;
(h) Full body postcard-size pictures of the 2. Reciprocal rights of adoptee and adopter will
petitioner and his immediate family taken at be extinguished;
least six (6) months before the filing of the 3. Vested rights acquired prior to judicial
petition rescission shall be respected;
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4. Successional rights shall revert to its status
are needed to see this picture. prior to adoption, as of the date of judgment of
judicial rescission;
RESCISSION OF ADOPTION 5. Adoptee shall use the name stated in his
original birth or founding certificate;
Under the Domestic Adoption of 1998, the 6. Civil registrar will reinstate his original birth or
ADOPTER CAN NO LONGER RESCIND the founding certificate.
adoption, he can he adoptee in accordance with the
provisions of the Civil Code. Unlike in revocation of guardianship, revocation of
adoption is a separate proceeding from the adoption.
separate petition for custody because the issue can PRELIMINARY CITATION
be ventilated in the petition for writ. Where a person detained under governmental
authority and the illegality of his detention is not
REQUISITES FOR THE ISSUANCE OF THE WRIT patent from the petition for the writ, the court may
IN CASES WHERE THE RIGHTFUL CUSTODY issue a citation to the government officer having the
OVER THE PERSON OF A MINOR IS WITHHELD person in her/his custody to show cause why the writ
FROM THE PERSON ENTITLED THERETO: should not issue.
1. that the petitioner has the right to the custody
over the minor; PEREMPTORY WRIT
2. that the rightful custody of the minor is being It is issued when the cause of detention appears to
withheld from the petitioner by the respondent; patently illegal and the non-compliance therewith is
3. that it is to the best interest of the minor punishable
concerned to be in the custody of the petitioner
and not that of respondent. (Sombong v. CA, Elepante v. Madayag, G.R. No. 92586 (1991)
January 31, 1996) An appeal in Habeas Corpus proceedings should
be perfected (i.e. by filing Notice of Appeal) within 48
Section 3. Requisites of application therefor hours, compliance with which is mandatory and
jurisdictional. In counting the 48 hours, the date on
VERIFIED PETITION MUST SET FORTH: which the decision was promulgated is not counted,
1. that the person in whose behalf the application and the period starts to run the following day.
is made is imprisoned or restrained of his
liberty; NOTE: Please try to read the PROPOSED RULE
2. The officer or name of the person by whom he ON CUSTODY OF MINORS AND WRIT OF
is imprisoned or restrained; HABEAS CORPUS IN RELATION TO CUSTODY OF
3. Place where he is imprisoned or restrained, if MINORS which shall apply to petitions for custody of
known; minors and writs of habeas corpus in relation to
4. Copy of the commitment or cause of the minors. (A.M. No. 03-04-04-SC, effective 15 May,
detention, if it can be procured without 2003)
impairing the efficiency of the remedy (if no
legal authority for imprisonment, such fact shall Tung Chin Hui v. Rodriquez, G.R. No. 141767
appear). (2001)
P’s confinement is in accord with § 37 (a) of the
Section 4. When writ not allowed or discharge Philippine Immigration Act of 1940, as amended,
authorized which reads as follows: Ҥ 37. (a) The following aliens
shall be arrested upon the warrant of the
1. If the person is in custody of an officer under Commissioner of Immigration or of another officer
process issued by a court or by virtue of a designated by him for the purpose and deported
judgment or order of a court of record which upon the warrant of the Commissioner of Immigration
has jurisdiction to issue the process, render after a determination by the Board of Commissioners
the judgment or make the order of the existence of the ground for deportation as
2. If jurisdiction appears after the writ is charged against the alien: xxx (7) Any alien who
allowed; remains in the Philippines in violation of any limitation
3. If the person is charged with or convicted of or condition under which he was admitted as a non-
an offense in the Philippines immigrant.
Supervening Events May Bar Release
Section 6. To whom writ directed, and what to
Even if the arrest of a person
QuickTime™ is and aillegal, supervening
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events may bar release
are needed or
to seedischarge
this picture. from custody.
What is to be inquired into is the legality of detention
DIRECTED TO OFFICER AND COMMANDS HIM
as of, at the earliest, the filing of the application for
TO:
the writ of habeas corpus. (Velasco vs. CA, July 7,
1. Produce the body of person before the court ;
1995).
and
2. Show cause of the imprisonment or restraint.
Section 5. When the writ must be granted and
issued
Section 7. How prisoner designated and writ Section 14. When person lawfully imprisoned
served recommitted, and when let to bail
Section 8. How writ executed and returned Section 15. When prisoner discharged if no
appeal
1. Convey the person so imprisoned before the
judge, unless from sickness or infirmity such If one is unlawfully imprisoned, court shall order his
person cannot, without danger brought before discharge but such discharge shall not be effective
the court. until a copy of the order has been served on the
2. Make the return of the writ together with the officer or person detaining the prisoner. If person
day and the cause of caption or restraint. detaining him does not appeal, the prisoner shall be
released.
Section 9. Defect of form
PERIOD OF APPEAL
NO WRIT CAN BE DISOBEYED FOR DEFECT IN Within 48 hours from notice of the judgment or final
FORM IF IT SUFFICIENTLY STATES: order appealed from (Section 39 BP 129). Form of
1. Person In whose custody or under whose appeal is NOTICE OF APPEAL.
restraint is held; and
2. Court or judge before whom he is to be Section 16. Penalty for refusing to issue writ, or
brought. for disobeying the same
Section 17. Person discharged not to be again
Section 10. Contents of return imprisoned
(a) Whether he has or has not the party in his We hold that such a reservation is repugnant to the
custody or power , or under restraint; government of laws and not of men principle. Under
(b) If he has the party in his custody or power or this principle, the moment a person is acquitted on a
under restraint, the authority and the true and criminal charge he can no longer be detained or re-
whole cause thereof, set forth at large, with a arrested for the same offense. (Moncupa vs. Enrile,
copy of the writ, order, execution , or other supra)
process, if any, upon which the party is held;
(c) If the party in his custody or power or is Section 18. When prisoner may be removed from
restraint by him, and is not produced, one custody to another
particularly the nature and gravity o f the
sickness or infirmity of such party by reason of 1. By legal process;
which he cannot, without danger, be brought 2. Prisoner is delivered to a inferior officer to
before the court or judge; carry to jail;
(d) If he has had the party in his custody or power, 3. By order of proper court or judge directing that
or under restraint , and has transferred such he be removed from one place to another
custody or restraint to another, particularly to within the Philippines for trial;
whom, at that time, for what cause , and by 4. In case of fire, epidemic, insurrection or other
what authority such transfer was made. necessary or public calamity.
Section 11. Return to be signed and sworn to Section 19. Record of writ, fees and costs
Section 12. Hearing on return; Adjournments
Section 13. When the return evidence, and when When does court acquire jurisdiction over person
only a plea of respondent?
The writ itself plays the role of summons in ordinary
If detention is by public QuickTime™
authority, and a the petitioner has actions; court acquires jurisdiction over the person of
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burden of proof to show that
are needed to seethe restraint was illegal.
this picture. the respondent BY MERE SERVICE OF WRIT.
RULE ON CUSTODY OF MINORS AND WRIT OF TEMPORARY VISITATION RIGHTS (SEC. 15)
HABAES CORPUS IN RELATION TO THE The court shall provide in its order awarding
CUSTODY OF MINORS (A.M. No.03-04-04-SC) provisional custody appropriate visitation rights to the
non-custodian parent or parents unless the court
WHO MAY FILE PETITION?(Sec. 2) finds said parent or parents unfit or disqualified.
A verified petition for the rightful custody of a minor
may be filed by any person claiming such right. HOLD DEPARTURE ORDER (Sec. 16)
The minor child subject of the petition shall not be
WHERE TO FILE PETITION? brought out of the country without prior order from the
Family courts in the province or city where the court while the petition is pending.
petitioner resides or where the minor may be found.
The Court, motu prorio or upon application under
CONTENTS OF A VERIFIED PETITION (Sec. 4) oath, may issue and ex parte hold departure order.
1. The personal circumstances of the petitioner
and respondent; PETITION OF WRIT OF HABEAS CORPUS (Sec.
2. The name, age and present whereabouts of 20)
the minor and his or her relationship to the The petition shall be filed where the Family Court
petitioner or respondent; where petitioner resides or where the minor may be
3. The material operative facts constituting found
deprivation of custody;
4. Such other matters which are relevant to the The petition shall be enforceable within its judicial
custody of minor. region to which the Family Court belongs.
Motion to dismiss is not allowed except on the The petition may however be filed with the regular
ground of lack of jurisdiction over the subject matter court in the absence of the presiding judge of the
or over the parties. Family Court, provided however that the regular court
shall refer the case to the Family Court as soon as
Respondent must file verified answer within 5 days its presiding judge returns to duty.
from service of summons and copy of petition.
The petition may also be filed with the SC, CA or
PROVISIONAL ORDER AWARDING CUSTODY with any of its members and, if so granted the writ
(Sec. 13) may be made returnable to a Family Court or to any
As far as practicable, the following order of regular court within the region where the petitioner
preference shall be observed in the award of custody: resides or where the minor may be found for hearing
1. Both parents jointly; and decision on the merits.
2. 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; RULE 103
3. The grandparent or if there are several CHANGE OF NAME
grandparents, grandparent chosen by the
minor over seven years of age and of sufficient Section 1. Venue
discernment, unless the grandparent chosen
is unfit or disqualified; RTC of the province where the petitioner has been
4. The eldest brother or sister over twenty one residing for 3 years prior to the filing of the petition.
(21) years of age unless he or she is unfit or
disqualified; QuickTime™ and a Section 2. Contents of petition
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5. The actual custodian ofthisthe
are needed to see minor over twenty
picture.
one (21) years of age unless former is unfitor THE PETITION SHALL SET FORTH:
disqualified; or 1. That petitioner is a bona fide resident of the
6. Any other person or institution the court may province for at least 3 years prior to the date of
deem suitable to provide proper care and the filing of the petition
guidance for the minor. 2. Cause for which the change of name is sought
3. Name asked for (§2)
4. All names and aliases of petitioner (Republic v.
Zosa)
Any person interested in any act, event, order or Section 4. Notice and publication
decree concerning the civil status of persons.
Order of hearing shall be published once a week for 3
RTC of the province where the corresponding civil consecutive weeks in a newspaper of general
registrar is located. QuickTime™ and a circulation in the province and all persons named in
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are needed to see this picture. the petition shall be notified.
REQUISITES OF ADVERSARIAL PROCEEDINGS:
1. Proper petition is filed where the Civil Registrar Section 5. Opposition
and all parties interested are impleaded;
2. The order of hearing must be published once Within 15 days from notice of the petition or from date
a week for three consecutive weeks of last publication.
3. Notice thereof must be given to the Civil
Registrar and all parties affected thereby; Section 6. Expediting proceedings
Section 7. Order
RULE 109
APPEALS IN SPECIAL PROCEEDINGS