SPECIAL PROCEEDINGS LAGURA, J.

Book by Dean Gemy Lito Festin FINALS REVIEWER

ADOPTION Petition may be There is none.

allowed to be
Definition accompanied with
Adoption is a juridical act, a proceeding in prayers for change
rem, which creates between two persons a of name,
relationship similar to that which results rectification of
from legitimate paternity and filiation. simulated birth or
declaration that the
Adoption statute, being humane and child is a foundling,
salutary, hold the interest and welfare of abandoned
the child to be of paramount consideration. dependent or
neglected child.
Governing Laws:
1. Domestic Adoption Act (RA 8552)
2. Inter-Country Adoption Act (RA 8043) INTER-COUNTRY ADOPTION ACT - 1995
(RA 8043)
Construction: Liberally Construed.
The main purpose of adoption is the Who may be adopted?
promotion of the welfare of the Only a legally free child may be the subject
children. Accordingly, the law should of inter-country adoption. It means a child
be construed liberally, in a manner that who has been voluntarily or involuntarily
will sustain rather than defeat the said committed to the DSWD, in accordance
purpose. The law should also be applied with the Child and Youth Welfare Code.
with compassion, understanding, and
less severity in view of the fact that it is Who may adopt?
intended to provide homes, love, care Any alien or Filipino citizen permanently
and education for less fortunate residing abroad may file his petition for
children. adoption provided he/she is:

COMPARISON 1. Atleast 27y/o and at least 16y/older

than the child to be adopted unless
RA 8552 RA 8043 the adopter is the parent by nature or
Domestic Adoption Inter-Country Adoption spouse of such parent
1. Family Court in 1. In the Regional 2. Joint adoption for married adopter
the place where Trial Court (RTC) 3. Has the capacity to act and assume all
the adopter having jurisdiction rights and responsibilities of parental
resides. over the place authority under his national laws, and
where the child undergone appropriate counselling in
resides or may be his/her country
found; or 4. Has not been convicted of a crime
2. It may be filed involving moral turpitude;
directly with the 5. Eligible to adopt under his/her
Inter-Country national law
Adoption Board. 6. In a position to provide the proper
Application may be Application may be care and support and to give necessary
filed with the through agency located moral values
Family Court in the in the foreign country. 7. Agrees to uphold the basic rights of
Philippines. the child under the law, UN
Trial custody shall Trial custody is Conventions and abide rules and
be made for six mandatory in the regulations under this Act.
months. country of adopter. 8. Comes from a country with whom
Publication of the No requirement for Philippines has diplomatic relations;
petition is publication. adoption is allowed under his/her
necessary. national laws; maintains similarly
authorized agency;
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
9. Possesses all the qualification and none
of the disqualifications.
REMEMBER: NO CHILD SHALL BE
MATCHED TO A FOREIGN ADOPTIVE
FAMILY UNLESS IT IS SATISFACTORILY
SHOWN THAT THE CHILD CANNOT BE
ADOPTED LOCALLY.
DOMESTIC ADOPTION ACT – 1998
(RA 8552)
Who may be adopted?
1. Any person below 18y/o,
administratively or judicially declared
available for adoption
2. Legitimate son/daughter of one spouse
by the other spouse
3. An illegitimate son/daughter by a
qualified adopter
4. A person of legal age if, prior to
adoption, the person has been
consistently considered and treated by
the adopters as hi/her own child since
minority
5. A child whose adoption has been
previously rescinded
6. A child whose biological or adoptive
parents has died
Who may adopt?
a) Any Filipino citizen of legal age:
 In possession of full civil
capacity and legal rights
 Of good moral character
 Has not been convicted of any
crime involving moral
turpitude,
 Emotionally and psychologically
capable of caring for children
 Atleast 16 y/older than the
adoptee
 In a position to support and
care for his/her children in
keeping with the means of the
family
b) Any alien possessing the above
qualifications and:
 His/her country has diplomatic
relations with the Philippines
 Living in the Philippines for
atleast 3 years prior to the filing
of application and maintain
LAGURA, J.
FINALS REVIEWER
such residence until the
adoption decree is entered
 Has legal capacity to adopt in
her country as his/her
diplomatic/consular office
 His/her government allows the
adoptee to enter his country as
his adopted son/daughter.
Waiver of rule (residency and certification):
 A former Filipino citizen who
seeks to adopt a relative with
the 4th degree of consanguinity
or affinity
 One who seeks to adopt the
legitimate son/daughter of
her/his Filipino spouse
 One who is married to a
Filipino citizen and seeks to
adopt jointly with his spouse a
relative within 4th degree of
consanguinity or affinity of the
Filipino spouse.
c) Guardian with respect to the ward (after
termination of guardianship and
clearance of his/her financial
accountabilities.
WHOSE CONSENT IS NECESSARY TO
THE ADOPTION (Section 9, RA 8552)
a) The adoptee, if 10 years old or above
b) The biological parents of the child, if
known, or the legal guardian, or the
proper government instrumentality
which has legal custody of the child
c) Legitimate/adopted son or daughter,
10 years old or over, of the adopters and
adoptee
d) Illegitimate son/daughters, 10 years old
or over, of the adopter if living with said
adopter and the latter’s spouse;
e) The spouse, if any, of the person
adopting or to be adopted.
HUSBAND AND WIFE SHALL JOINTLY
ADOPT. Yes, as a rule, husband and wife
shall jointly adopt. This is in consonance
with the concept of joint parental authority
over the child is the ideal situation. As the
child to be adopted is elevated to the level of
a legitimate child, it is but natural to
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
require the spouses to adopt jointly. The
rule also inures harmony between the
spouses.
Exception:
a) If one spouse seeks to adopt the
legitimate son/daughter of the
other; or
b) If one spouse seeks to adopt
his/her own illegitimate
son/daughter: provided,
however, that the other spouse
has signified his/her consent
thereto; or
c) If the spouses are legally
separated from each other.
WRITTEN CONSENT OF BIOLOGICAL
PARENTS, WHEN NECESSARY.
General Rule:
Clearly, the written consent of the biological
parents is indispensable for the validity of a
decree of adoption. Indeed, the natural
right of a parent to his child requires his
consent must be obtained before his
parental rights and duties may be
terminated and re-established in
adoptive parents. (Landingin vs. Republic)
Exception:
It is not necessary if the subject of
adoption is deemed as an
abandoned child. An abandoned
child is a child who has no proper
parental care or guardianship, or
whose parent(s) have deserted
him/her for a period of at least three
continuous months, which include
foundling.
LEGAL EFFECTS OF AN ADOPTION
1. Sever all legal ties between the
biological parent(s) and the adoptee,
except when the biological parent is the
spouse of the adopter.
2. Deem the adoptee as a legitimate
child of the adopter; and
3. Give adopter and adoptee reciprocal
rights and obligations arising from the
relationship of parent and child:
 Bear surname of the parents
LAGURA, J.
FINALS REVIEWER
 Receive support
 Entitled to legitimate and other
successional rights
JURISPRUDENCE
1. Husband and Wife shall joint adopt.
The law is clear. There is no room for
ambiguity. Petitioner, having remarried at
the time the petitions for adoption were
filed, must jointly adopt. Since the petitions
for adoption were filed only by petitioner
herself, without joining her husband,
Olario, the trial court was correct in
denying the petitions for adoption on this
ground.
Neither does petitioner fall under any of the
three exceptions enumerated in Section 7.
First, the children to be adopted are not the
legitimate children of petitioner or of her
husband, Olario. Second, the children are
not the illegitimate children of petitioner.
And third, the petitioner and Olario are not
legally separated from each other.
The fact that Olario gave his consent to
the adoption as shown in his Affidavit of
Consent does not suffice. There are
certain requirements that Olario must
comply being an American citizen. He must
meet the qualifications setforth in Section 7
of RA No. 8552 such as: (1) he must prove
that his country has diplomatic relations
with the Philippines; (2) Living in the
Philippines for at least 3 years prior to the
filing of application for adoption; (3) he
must maintain such residency until the
adoption decree is entered; (4) he has legal
capacity to adopt in his own country; and
(5) the adoptee is allowed to enter the
adopted’s country as the latter’s adopted
child. None of these qualifications were
shown and proved during the trial.
2. Financial Qualification in Adoption
(Landingan v. Republic)
Since the primary consideration in adoption
is the best interest of the child, it follows
that the financial capacity of prospective
parents should also be carefully evaluated
and considered.
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
This is but in consonance with the liberal
concept that adoption statutes, being
humane and salutary, hold the interest and
welfare of the child to be of paramount
consideration and are designed to provide
homes, parental care and education for
unfortunate, needy or orphaned children
and give them the protection of society and
family in the person of the adopter as well
as to allow childless couples or persons to
experience the joys of parenthood and give
them legally a child in the person of the
adopted for the manifestation of their
natural parental instincts. Every reasonable
intendment should be sustained to promote
and fulfill these noble and compassionate
objectives of the law.
Since the primary consideration in adoption
is the best interest of the child, it follows
that the financial capacity of prospective
parents should also be carefully evaluated
and considered. Certainly, the adopter
should be in a position to support the
would be adopted child or children, in
keeping with the means of the family. While
the Court recognizes that petitioner has only
the best of intentions for her nieces and
nephew, there are legal infirmities that
militate against reversing the ruling of the
CA.
3. Use of Middle name Upon Decree of
Adoption (In the Matter of the Adoption
of Stephanie Nathy Garcia v. Catindig)
May an illegitimate child, upon adoption
by her natural father, use the surname of
her natural mother as her middle name?
It is a settled rule that adoption
statutes, being humane and salutary,
should be liberally construed to carry
out the beneficent purposes of adoption.
The interests and welfare of the adopted
child are of primary and paramount
consideration, hence, every reasonable
intendment should be sustained to promote
and fulfill these noble and compassionate
objectives of the law. Hence, since there is
no law prohibiting an illegitimate
child adopted by her natural father, like
Stephanie, to use, as middle name her
mother’s surname, we find no reason why
she should not be allowed to do so.
LAGURA, J.
FINALS REVIEWER
Being a legitimate child by virtue of her
adoption, it follows that Stephanie is
entitled to all the rights provided by law
to a legitimate child without
discrimination of any kind, including the
right to bear the surname of her father
and her mother, as discussed above. This
is consistent with the intention of the
members of the Civil Code and Family Law
Committees as earlier discussed. In fact, it
is a Filipino custom that the initial or
surname of the mother should immediately
precede the surname of the father.
4. Rescission of Adoption
While R.A. No. 8552 has unqualifiedly
withdrawn from an adopter a
consequential right to rescind the
adoption decree even in cases where
the adoption might clearly turn out to
be undesirable, it remains,
nevertheless, the bounden duty of the
Court to apply the law. Dura lex sed
lex would be the hackneyed truism that
those caught in the law have to live
with. It is still noteworthy, however,
that an adopter, while barred from
severing the legal ties of adoption, can
always for valid reasons cause the
forfeiture of certain benefits otherwise
accruing to an undeserving child. For
instance, upon the grounds recognized
by law, an adopter may deny to an
adopted child his legitime and, by a will
and testament, may freely exclude him
from having a share in the disposable
portion of his estate.
Interestingly, even before the passage
of the statute, an action to set aside the
adoption is subject to the five-year bar
rule under Rule 100 of the Rules of
Court and that the adopter would lose
the right to revoke the adoption decree
after the lapse of that period. The
exercise of the right within a
prescriptive period is a condition that
could not fulfill the requirements of a
vested right entitled to protection. It
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
must also be acknowledged that a
person has no vested right in statutory
privileges. While adoption has often
been referred to in the context of a
right, the privilege to adopt is itself not
naturally innate or fundamental but
rather a right merely created by
statute. It is a privilege that is governed
by the states determination on what it
may deem to be for the best interest
and welfare of the child. Matters
relating to adoption, including the
withdrawal of the right of an adopter
to nullify the adoption decree,
are subject to regulation by the
State. Concomitantly, a right of
action given by statute may be taken
away at anytime before it has been
exercised.
Grounds for rescission of Adoption
(Section 19, RA 8552)
Upon petition of the adoptee, the
adoption may be rescinded on any of
the following grounds:
1. Repeated physical and verbal
maltreatment by the adopter(s)
2. Attempt on the life of the adoptee
3. Sexual assault or violence
4. Abandonment and failure to
comply with parental obligations
Rule 102
WRIT OF HABEAS CORPUS
Definition
1. Except as 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. (Section 1,
Rule 102)
2. A writ directed the person detaining
another and commanding him to
LAGURA, J.
FINALS REVIEWER
produce the body of the prisoner at
a certain time and place, with the
day and the cause of his caption
and detention, to do, and receive
whatsoever the court or judge
awarding the writ shall consider
that behalf.
Nature
1. Habeas corpus is a summary remedy.
It is analogous to a proceeding in rem
when instituted for the sole purpose of
having the person of restraint presented
before the judge in order that the cause
of his detention may be inquired into
and his statements final.
2. A writ of habeas corpus which is
regarded as a “palladium of liberty” is
a prerogative writ which does not
issue as a matter of right but in the
sound discretion of the court or
judge. It is, however, the writ of right on
proper formalities being made by proof.
Resort to the writ is to inquire into the
criminal act of which a complaint is
made but unto the right of liberty,
notwithstanding the act, and the
immediate purpose to be served is relief
from illegal restraint. The primary, if
not the only subject of the writ of
habeas corpus ad subjuciendum is to
determine the legality of the
restraint under which a person is
held.
Purpose
1. To inquire into the legality of detention
2. To relieve/release a person therefrom if
such restraint is illegal.
NOTE: ANY RESTRAINT WHICH WILL
PRECLUDE FREEDOM OF SUCH PERSON
IS SUFFICIENT. Equally well-settled,
however, is that the writ will not issue
where the person in whose behalf the writ
is sought is judged with jurisidiction or by
virtue of a judgment or of a court of record.
Concept of Restraint
1. Actual physical restraint is not always
required. Any restraint which will
prejudice freedom of action is sufficient.
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
2. It is more than mere moral restraint;
In fact, the law requires actual or
physical confinement. However, the
fact that no physical force was exerted
to keep a person does not make less
real the deprivation of his personal
freedom which includes the freedom of
movement, freedom to transfer from one
place to another, freedom to choose
ones residence.
3. FREEDOM MAY BE LOST DUE TO
INTERNAL MORAL COMPULSION-
that may curtail the mental faculty
of choice or the unhampered exercise
of the will. If the actual effect of such
psychological spell is to place a person
at the mercy of another, the victim is
entitled to the protection of courts of
justice as much as the individual who is
illegally deprived of liberty by duress or
physical coercion.
Section 3, Rule 102.
LIBERAL CONSTRUCTION.
The technical requirement for a habeas
corpus petition as provided in Rules of
Court may be dispensed with where the
allegations in the application are sufficient
to make out a case for habeas corpus. To
strictly restrict the great writ of liberty
to technicalities not only defeats the
spirit that animates the writ but also
waters down the precious right that the
writ seeks to protect, the right to
liberty. To dilute the remedy that
guarantees protection to the right is to
negate the right itself. Thus, the Court will
not unduly confine the writ of habeas
corpus in the prison walls of technicality.
Otherwise, it will betray its constitutional
mandate to promulgate rules concerning
the protection and enforcement of
constitutional rights.
CASES WHEREIN THE WRIT MAY BE
EXTENDED:
1. Legality of an alien’s detention and
proposed detention is a settled practice
because aside from being thorough, it
affords prompt relief from unlawful
imprisonment.
LAGURA, J.
FINALS REVIEWER
2. Custody of Minors. The writ of habeas
corpus extends also to all cases by
which the rightful custody of a person is
withheld from the person entitled
thereto. It is the proper legal remedy to
enable parents to regain the custody of
a minor child even if the latter be in the
custody of a third person of his own free
will. It may be even said that in
custody cases involving minors, the
question of illegal and involuntary
restraint of liberty is not the
underlying rationale for the
availability of the writ as a remedy.
Rather, it is prosecuted for the
purpose of determining the right of
custody over a child.
Under Article 211 of the Family Code,
respondent and petitioner have joint
parental authority over their child and
consequently joint custody. Further,
although the couple separated de facto,
the issue of a judicial grant of custody
to one parent, both parents are still
entitled to the custody of their child. In
the present case, private respondents
cause of action is the deprivation of his
right to see his child as alleged in his
petition. Hence, the remedy of habeas
corpus is available to him.
What if the child has been
presented before the courts prior
to the issuance of writ?
General rule: The petition for the
issuance of writ becomes moot and
academic. Courts of justice
constituted to pass upon
substantial rights will not consider
questions where no actual interests
are involved. Thus, the well-settled
rule that courts will not determine a
moot question. The Court will,
therefore, abstain from expressing
its opinion in a case where no legal
relief is needed or called for.
Exception: For purposes of
determining the rightful custody of a
minor. The court may not dismiss a
petition a petition for writ of habeas
corpus on the ground that the minor
had already been produced in court.
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
In cases involving 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 is to determine who has
the rightful custody over the
child.
Who has jurisdiction to issue writs of
habeas corpus involving custody of
minors?
1. Pursuant to RA 8369, Family Courts
is vested with exclusive original
jurisdiction over such petitions.
2. TAKE NOTE, HOWEVER, that
RA 8369 DID NOT divest the Court
of Appeals and the Supreme Court
of their jurisidiction over habeas
corpus cases involving the custody
of a minor.
3. A.M. No. 03-3-04(Rule on the
Custody of Minors and Writ of
Habeas Corpus in relation to
Custody of minors) provides that the
petition may likewise be filed with
the Supreme Court, Court of
Appeals, or with any of its members
and, if so granted, the writ shall be
enforceable anywhere in the
Philippines.
WHO MAY GRANT THE WRIT? Under the
1987 Constitution, writ of habeas corpus
may be granted by the following:
1. Supreme Court and Court of
Appeals (enforceable throughout
the Philippines)
2. Regional Trial Court
(enforceable within its respective
judicial region)
BAR QUESTION: The writ of
habeas corpus issued by the
Family Court in Angeles City
cannot be enforced in Cebu
City, the latter, not being
within the judicial region of
the issuing court.
3. Municipal Trial Court (in the
absence of RTC)
LAGURA, J.
FINALS REVIEWER
4. Sandiganbayan (only if it is in
aid of its appellate jurisidiction.
BAR QUESTION: Petitioners went to the
Supreme Court and asserted that habeas
corpus is unavailable against the mother
who, under the law, has the right of
custody of the minor.
Petitioners can raise it as a counter
argument for private respondents
petition for custody. BUT IT IS NOT
A BASIS FOR PREVENTING THE
FATHER TO SEE HIS OWN CHILD.
NOTHING IN THE SAID
PROVISION DISALLOWS A
FATHER FORM SEEING OR
VISIITNG HIS CHILD UNDER 7
YEARS OF AGE.
Declaration of Nullity of Marriage vs.
Habeas Corpus. The motion to dismiss the
petition for habeas corpus should be
granted. By filing the case for nullity of
marriage, H automatically submitted the
issue of the custody of the child as an
incident thereof. Under the law, the court is
directed to take jurisidiction over a petition
for declaration of nullity of marriage to
resolve the custody of common children, by
mere motion of either party, it could only
mean that the filing of a new action is not
necessary for the court to consider the
issue of custody of minor.
Section 3, Rule 102
WHO MAY FILE THE PETITION?
An application for the writ shall be by
petition signed and verified by the party for
whose relief it is intended, or by some
person on his behalf.
A live-in partner may file a
petition for habeas corpus. The
law is clear. A petition for the
issuance of the writ of habeas
corpus may be filed by some person
in his behalf pursuant to Rule 102
of the Rules of Court.
As the grandparent of the two
minor girls, B has the right of
custody as against A, the mother,
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Book by Dean Gemy Lito Festin
who is a prostitute. Moreso, because
his son, the father of minor
children, is already dead.
CONTENTS OF THE PETION
1. THE FACT OF IMPRISONMENT.
That the person on his behalf the
application is made is imprisoned or
restrained of his liberty
2. The officer or name of the person
whom he is so imprisoned or
restrained; If unknown, he must be
named in an assumed appellation
3. The place where he is so imprisoned or
restrained
4. A copy of the commitment or cause of
detention of such person, or if he
imprisonment or restraint is without
legal cause, such fact shall appear.
CONTENTS OF THE RETURN
1. Whether he has or has not the party
under his custody of power or under
restraint;
2. If he has the party, the authority or true
and whole cause thereof, and a copy of
the order, judgment, process upon
which the party is held.
3. If he party is in his custody and is not
produced, the nature and gravity of
sickness and infirmity of such party by
reason of which he cannot, without
danger, brought before the court;
4. If he had the party in his custody and
has transferred such custody,
particularly to whom, at what time, for
what cause and by what authority such
transfer was made.
WHEN RETURN IS PRIMA FACIE
EVIDENCE OF THE CAUSE OF
RESTRAINT; WHEN IT IS ONLY A PLEA.
1. If it appears that the person is in
custody under the warrant of
commitment in pursuance of law, the
return shall be considered as a prima
facie evidence of the cause of restraint;
2. If under the custody of a private
authority, return shall be considered as
a plea of facts and the party claiming
the custody must prove such facts.
COVERTURES – NOT COVERED.
1. No marital rights including coverture
and living in conjugal dwelling may not
LAGURA, J.
FINALS REVIEWER
be enforced by extraordinary writ of
habeas corpus. No court is empowered
as a judicial authority to compel a
husband to live with this wife.
Coverture cannot be enforced by
compulsion of a writ of habeas corpus
carried out by sheriffs or any other
process. This is a matter beyond
judicial authority and is best left to
the man and woman’s free choice.
2. A husband may refuse to see his wife
for private reasons, he is at liberty to do
so without threat of any penalty
attached to the exercise of his right.
WHEN HABEAS CORPUS MAY BE ISSUED
BY VIRTUE OF A VALID JUDGMENT.
General Rule: The writ of habeas corpus is
issued only for the lone purpose of
obtaining relief for those illegally confined
or imprisoned without sufficient legal basis.
It is not issued when the person is in
custody because of judicial process or a
valid judgment.
In Jeany-Vi Kiani vs. The Bid, once a
person detained is duly charged in
court, he may no longer question his
detention through a petition for
issuance of a writ of habeas corpus.
His remedy would be to quash the
information and/or warrant of
arrest duly issued. The habeas
corpus should not be allowed after
the party sought to be released has
been charged before any court.
Exception: The rule that habeas corpus
may not be available of if the detention is
by virtue of a valid judgment is not
absolute. The writ may be allowed as post
conviction remedy when the proceedings
leading to the conviction were attended by
any of the following exceptions
circumstances:
1. DEPRIVATION OF CONSTITUTIONAL
RIGHT. There was a deprivation of a
constitutional right resulting to
restraint of a person
2. LACK OF JURISDICITION.
The court had no jurisdiction to impose
the sentence
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
3. EXCESSIVE PENALTY. The imposed
penalty was excessive, thus voiding the
sentence as to such excess.
BAR QUESTION. Mariano was
convicted of raping Victoria. During his
service, he married Victoria. He then
filed a motion in this court for his
release. This was however denied on the
ground that it had lost jurisdiction over
the case after its decision had become
final and executory.
1. The courts never lose jurisidiction
so long as its decision has not yet
been fully implemented and
satisfied. Finality of a judgment
cannot operate to divest a court of
its jurisidiciton. The court retains
an interest in seeing the proper
execution and implementation of its
judgments, and to the extent, may
issue such orders necessary and
appropriate for these purposes.
2. To secure the proper and most
expeditious release of Mariano, his
counsel should file: (a) Habeas
Corpus for the illegal confinement,
or (b) a motion in the court which
convicted him, to nullify the
execution of his sentence or the
order of his confinement on the
ground that a supervening
development has occurred despite
the finality of the judgment.
BURDEN OF PROOF
As a general rule, the burden of proving
illegal restraint by the respondents rests on
the petitioner who attaches such restraints.
Preliminary Citation vs. Peremptory Writ
Preliminary Citation. Where the person is
detained under governmental authority and
the illegality of his detention is not patent
from the petition for the writ, the court may
issue a citation to the government officer
having the person in his custody to show
cause why the writ of habeas corpus shall
not issue.
Peremptory Writ. It is issued when the
cause of action appears to be patently
LAGURA, J.
FINALS REVIEWER
illegal and the non-compliance wherewith is
punishable.
SECTION 14, RULE 102
WHEN BAIL IS AVAILABLE
1. NOT BAILABLE. If it appears that
the person 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.
2. BAILABLE. 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.
3. ADMITTED TO BAIL. 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. If such
bond is not so filed, the prisoner
shall be recommitted to
confinement.
May a detention prisoner avail the writ?
Yes. Detention prisoner can avail of the
habeas corpus proceeding to post bail to
ensure his appearance before the court if
the offense charged is bailable and if he has
been held without bail. HOWEVER, if the
offense is non-bailable, he cannot obtain
his provisional liberty on bail by habeas
corpus proceeding.
 CONVICTED FELON EXCLUDED.
“Alma is not entitled to bail as she
is not a detention prisoner but
already a convicted felon. Section
2 of Rule 102 which allows the
remedy of habeas corpus to post
bail is applicable only when the
prisoner is a detention prisoner
and the offense is bailable under
the law.”
PERIOD TO APPEAL
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
The period to appeal in habeas corpus
cases shall be 48 hours from notice of
judgment appealed from.
JURISPRUDENCE
1. Released but involuntary
restraints remains existing.
A release that renders a petition for
a writ of habeas corpus moot and
academic must be one which is free
from involuntary restraints. HENCE,
when a person so released
continues to be denied one or more
of his constitutional freedoms,
where there is a present denial of
due process, or where the restraints
are not merely involuntary but
appear to be unnecessary, the
person concerned or those acting in
his behalf may still avail themselves
again of the privilege of the writ.
2. Once a person detained is duly
charged in court, he may no longer
question his detention through a
petition from issuance of a writ of
habeas corpus. The writ of habeas
corpus should not be allowed after
the party sought to be released had
been charged before any court.
3. The term “court” in this context
includes quasi-judicial bodies of
governmental agencies authorized to
order the person’s confinement, like
the Deportation Board of the Bureau
of Immigration. Likewise the
cancellation of his bail cannot be
assailed via a petition for habeas
corpus.
4. When an alien is detained by the
Bureau of Immigration for
deportation pursuant to an order of
deportation by the Deportation
Board, the RTCs have no power to
release such alien on bail even in
habeas corpus proceedings because
there is no law authorizing it.
A.M. NO. 03-04-04-SC
THE RULE ON CUSTODY OF MINORS AND
WRIT OF HABEAS CORPUS IN RELATION
TO CUSTODY OF MINORS
REQUISITES for the grant of writ of habeas
corpus involving custody of minors.
LAGURA, J.
FINALS REVIEWER
1. The petitioner has the right of
custody over the minor child
2. The rightful custody over the minor
is being withheld by the respondent
3. That it serves the “best interest” of
the minor child to be in the custody
of the petitioner rather than with
the respondent.
WHO MAY FILE?
A verified petition for the rightful custody of
a minor may be filed by any person
claiming such right.
WHERE TO FILE?
JURISDICTION:
1. Family Court (RTC)
2. Regular Courts in the absence of
the presiding judge of the Family
Court, provided the regular court
shall refer the case to the Family
Court as soon as its presiding judge
returns to duty
3. Supreme Court
4. Court of Appeals
VENUE: 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.
NOTE: A 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.
TAKE NOTE ALSO OF THE FOLLOWING:
1. The requirement of pre-trial
2. Non-attendance during pre-trial
3. Things may be done during pre-trial
4. Primordial consideration in granting
the writ
5. Contents of the petition
6. Appeals (No appeal from judgment is
allowed, unless an MR or new trial
within 15 days from notice of
judgment)
7. Best interest of the child
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
8. Contents of the judgment
9. Amount of support
PROVISIONAL ORDER AWARDING
CUSTODY OF THE MINOR. As far as
practicable, the preference shall be
observed in the award of custody:
1. Both parents jointly
2. Either parents (especially the
choice of the minor over 7 years of
age), unless the chosen parent is
unfit.
3. Grandparents (especially the choice
of the minor over 7 years of age),
unless the chosen grandparent is
unfit.
4. Eldest brother or sister over 21
years of age, unless he or she is
unfit/disqualified
5. Actual custodian unless he or she
is unfit/disqualified
6. Other person or institution the
court may deem fit
TAKE NOTE: TEMPORARY
VISITATION RIGHTS. The court
shall provide in its order of awarding
provisional custody appropriate
visitation rights to non-custodian
parent or parents, unless said
parent/s unfit or disqualified.
_______________________
WRIT OF AMPARO
Governing Law: A.M. No. 07-9-12-SC: Rules
on the Writ of Amparo as issued by the
Supreme Court
Definition (Section 1)
It 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 officer
or employee, or of a private individual or
entity. The writ shall cover extralegal
killings and enforced disappearances or
threats thereof.
 The writ of Amparo is
distinguished from writ of Habeas
Corpus in that it covers violations
of constitutional and civil rights
other than the right to unlawful
deprivation of liberty, like enforced
LAGURA, J.
FINALS REVIEWER
disappearance and extralegal
killings.
WHO MAY FILE? (Section 2)
a) Aggrieved party
b) By any qualified person or entity in
the following order:
1. Member of the immediate family
2. Ascendants, descendants or
collateral relatives with the 4th civil
degree of consanguinity or affinity
3. Any concerned citizen (or entities),
organization, institution, if there is
no known member of the
immediate family or relative.
TAKE NOTE: 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.
WHERE TO FILE?
1. Regional Trial Court of the place
where the threat, act, or omission
was committed or any of its
elements occurred, or
2. Sandiganbayan
3. Court of Appeals
4. Supreme Court, or any justice of
such courts
INTERIM RELIEFS (SECTION 14)
a) Temporary Protection Order
b) Inspection Order
c) Production Order
d) Witness Protection Order
Section 17
PRESUMPTION OF REGULARITY NOT
AVAILABLE AS DEFENSE. The respondent
public official or employee cannot invoke
the presumption that official duty has been
regularly performed to evade responsibility
or liability. Respondent must prove that
extraordinary diligence as required by
applicable laws was observed in the
performance of duty.
JURISPRUDENCE
1) Government involvement an
indispensable element. A writ of
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
Amparo may lie against a private
individual or entity. But even if the
person sought to be held accountable or
responsible in an Amparo petition is a
private individual or entity, still,
government involvement in the
disappearance remains an
indispensable element.
In Navia cs. Pardico, the petitioners are
mere security guards and they do not
work for the government and nothing
has been presented that would like or
connect them to some covert police,
military, or governmental operation. To
fall within ambit of A.M. No. 07-9-12 in
relation to RA 9851, the disappearance
must be attended by some
governmental involvement. This
hallmark of State participation
differentiates an enforced
disappearance case from ordinary
case of a missing person.
2) In Rodriguez vs. Macapagal–Arroyo¸
the Supreme Court ruled that
respondents are responsible or
accountable for the violation of
Rodriguez’s right to life, liberty, and
security on account of their abject
failure to a fair and effective official
investigation of his ordeal in the
hands of the military. (FACTS:
Rodriguez in this case was abducted
and forced to confess that he is a
member of the NPA. But he was later
released after the execution of an
affidavit to belie that he was never
abducted or tortured. Days after his
release, he still being followed by the
same vehicle used by soldiers who
abducted him. Hence, the petition.)
3) COMMAND RESPONSIBILITY NOT
APPLICABLE. In Rubrico vs.
Macapagal-Arroyo, the Supreme Court
rule that the Writ of Amparo does not
determine guilt or pinpoint criminal
culpability for the disappearance,
threats thereof or extrajudicial killings;
It determines responsibility or at least
accountability, for the enforced
disappearance, threats thereof or
extrajudicial killings for the purposes of
imposing the appropriate remedies to
LAGURA, J.
FINALS REVIEWER
address the disappearance or extra-
judicial killings.
The determination should not be
pursued to fix criminal liability on
respondents preparatory to criminal
prosecution, or as a prelude to
administrative disciplinary proceedings
under existing administrative
disciplinary proceedings under existing
administrative issuances.
4) RESTRICTION OF ONE’S RIGHT TO
TRAVEL AS A CONSEQUENCE OF
THE PENDENCY OF THE CRIMINAL
CASE WAS NOT UNLAWFUL FOR THE
WRIT TO ISSUE. Petitioner maintains
that Writ of Amparo does not exclusively
apply to situations of extrajudicial
killings and enforced disappearance,
but encompasses all liberties protected
by the Constitution. However, the Court
has already pronounced that the Writ of
Amparo, in its present form, is confined
only to these two instances of extralegal
killings and enforced disappearances.
The right to travel refers to the right
to move from one place to another. It
is subject to usual constraints for the
purpose of safeguarding the system
of justice. In such cases, whether the
accused should be permitted to leave
the jurisdiction for humanitarian
reasons is a matter of the court’s
sound discretion.
5) PURELY PROPERTY OR
COMMERCIAL CONCERNS ARE
EXCLUDED. In Masangkay Tapuz vs.
Hon. Judge Del Rosario, petitioners
Tapuz were charged with forcible entry
for having entered a land with force and
intimidation without the consent of the
alleged owners. Tapuz reported acts of
terrorism committed against them by
armed men who executed the
demolition and who allegedly torched
two houses of the petitioners. Hence,
the petition.
Under these legal and factual
situations, the Supreme Court is far
from satisfied with the prima facie
existence of the ultimate facts that
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
would justify the issuance of the Writ.
Rather than acts of terrorism that pose
a continuing threat to the persons of
the petitioners, the violent incidents
alleged appear to the Court to be purely
property–related and focused on the
disputed land. Thus , if the petitioners
wish to seek redress and hold the
alleged perpetrators criminally
accountable, the remedy may be more
the realm of ordinary criminal
prosecutions rather than the use of the
extraordinary remedy of the Writ of
Amparo.
The writ is intended to address
violations of, or threats to the right of
life, liberty, or security as an
extraordinary and independent remedy
supplemental to these Rules. What it is
not, is a writ to protect concerns
that are purely property or
commercial. Neither is it a writ that
the Court shall issue on amorphous
and uncertain grounds.
6) In Secretary of National Defense vs.
Manalo, the Supreme Court ruled that
NONETHLESS, THE CIRCUMSTANCES
OF RESPONDENT’S ABDUCTION,
DETENTION, TORTURE AND ESCAPE
REASONABLY SUPPORT A aircraft up to the time he was led to the
CONCLUSION THAT THERE IS AN
APPARENT THREAT THEY WILL AGAIN
BE ABDUCTED, TORTURED AND THIS
TIME, EVEN EXECUTED. THESE
CONSTITUTE THREATS TO THEIR
LIFE, LIBERTY AND SECURITY,
ACTIONABLE THRU PETION FOR WRIT
OF AMPARO. (Facts: While respondent’s
admit that they are no longer in
detention and are physically free, they
assert that they assert that they are not
free in every sense of the word as their
movements continue to be restricted for
fear that the people they named in the
affidavit are still at large and have not
been held accountable in any way.
7) In Canlas vs. NAPICO Homeowners¸ the
threatened demolition of a dwelling by
virtue of a final judgment of the court,
which in this case was affirmed with
finality by this Court, is NOT among the
enumeration under Section 1 of the
LAGURA, J.
FINALS REVIEWER
Rule on Writ of Amparo. A claim to
dwelling does not constitute right to
life, liberty and security. Therefore, no
legal basis for the issuance of the said
writ.
8) In Infant Caram vs. Atty. Segui¸ the
Supreme Court ruled that since it is
extant from the pleadings filed that
what is involved is the issue of child
custody and the exercise of parental
rights over a child, who, for all intents
and purposes, has been legally
considered a ward of state, the Amparo
cannot be properly applied.
9) In Lozada vs. Macapagal-Arroyo, the
Supreme Court ruled that the totality of
evidenced adduced by petitioners failed
to meet the threshold of substantial
evidence. Sifting through all the
evidence and allegations presented the
crux of the case boil down to assessing
the veracity and credibility of the parties
diverging claims as to what actually
transpired. In this regard, the Supreme
Court is in agreement with the factual
findings of the Court of Appeals to the
extent that petitioner Lozada was not
illegally deprived of his liberty from the
point when he disembarked from the
departure area of the airport, as he
voluntarily submitted himself to the
custody of respondents.
________________________
WRIT OF HABEAS DATA
Governing Law/Rule: A.M. No. 08-1-16-SC
The Rule on the Writ of Habeas Data
Definition (Section 1)
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
gathering, collecting or storing of data or
information regarding the person, family,
home and correspondence of the aggrieved
party.
WHO MAY FILE? (Section 2)
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
a) Aggrieved party
b) However, in cases of extralegal killings
and enforced disappearance, the
petition may be filed by:
1. Any member of the immediate
family
2. Ascendants, descendants or
collateral relatives with the 4th civil
degree of consanguinity or affinity
WHERE TO FILE?
1. Regional Trial Court where the
petitioner or respondent resides, or that
which has jurisdiction over the place
where the date or information is
gathered, collected or stored, at the
option of the petitioner.
2. Supreme Court, Court of Appeals or
the Sandiganbayan when the action
concerns public data files of government
offices.
JURISPRUDENCE
1. The CA correctly held that
petitioner failed to present
substantial evidence that this
right to life, liberty and security
were violated, or how his right to
privacy was threatened by
respondents. He did not specify
the particular documents to be
secured, their location or what
particular government office has
custody thereof, and who has
possession or control of the
same. He merely prayed that
respondents be ordered to
produce any documents
submitted to any of them in the
matter of any report on the case
of Francis Saez, including all
military intelligence reports.
2. The writs of Amparo and habeas
data will not issue to protect
purely property or commercial co
concerns nor when the grounds
invoked in support of the
petition therefor are vague or
doubtful. Employment
constitutes a property right
under the context of due process
clause of the Constitution. It is
evident that respondents
reservations on the real reasons
LAGURA, J.
FINALS REVIEWER
for her transfer is a legitimate
concern respecting the terms
and conditions of one’s
employment are what prompted
her to adopt the extraordinary
remedy of habeas data.
3. The Writ of Habeas Data was
conceptualized as a judicial
remedy enforcing the right to
privacy, most especially the right
to informational privacy of
individuals. The writ operates to
protect a person’s right to
control information regarding
himself, particularly in the
instances where such
information is being collected
through unlawful means in
order to achieve unlawful ends.
Needless to state, an
indispensable requirement
before the privilege of the writ
may be extended is the showing,
at least by substantial evidence,
of an actual or threatened
violation of the right to privacy
in life, liberty or security of the
victim.
4. The writ, however, will not
issue on the basis merely of an
alleged unauthorized access to
information about a person.
Availment of the writ requires
the existence of a nexus
between the right to privacy
on the one hand and the right
to life, liberty or security on
the other. Thus, the existence
of a person’s right to
informational privacy and a
showing, at least by
substantial evidence, of an
actual or threatened violation
of the right to privacy in life,
liberty and security of the
victim are indispensable
before the privilege of the writ
may be extended.
____________________
RULE 103
CHANGE OF NAME
Venue (Section 1)
SPECIAL PROCEEDINGS LAGURA, J.
Book by Dean Gemy Lito Festin FINALS REVIEWER

1. Regional Trial Court of the province in 6. When the surname causes

which he resides, or in the City of embarrassment and there is no showing
Manila; that the desired change of name was for
2. Juvenile and Domestic Relations Court a fraudulent purpose or that the change
of name would prejudice public interest.
Who may file?
1. By the person desiring his name JURISPRUDENCE
changed;
2. Some other persons on his behalf 1. As pointed out in Labayo-Rowe vs.
Republic, changes which may affect the
Publication of Order for hearing civil status from legitimate to
At least once a week for three (3) successive illegitimate are substantial and
weeks in some newspaper of general controversial alteration which can only
circulation published in the province, as be allowed after appropriate adversary
the court shall deem best. proceedings. Since respondent’s desired
change affects his civil status from
Rule 103 Once a week for three (3) legitimate to illegitimate, Rule 108
successive weeks in some applies. However, even assuming
newspaper of general arguendo that respondent has
newspaper simultaneously availed of these
Rule 108 Once a week for three (3) statutory remedies, respondent cannot
consecutive weeks in a be said to have sufficiently complied
newspaper of general with Rule 108. For as reflected above,
circulation aside from improper venue, he failed to
RA 9048 Once a week for two (2) implead the civil registrar of Makati and
consecutive weeks in a all affected parties as respondents in
newspaper of general the case.
circulation
RA 10172 Once a week for two (2) In fine, when a petition for cancellation
consecutive weeks in a or correction of an entry in the civil
newspaper of general register involves substantial and
circulation controversial alterations including those
on citizenship, legitimacy of paternity or
DATE OF HEARING filiations, or legitimacy of marriage, a
The date set for the hearing shall not be strict compliance with the requirements
within thirty (30) days prior to an election of Rule 108 is mandated of the Rules of
nor within four (4) months after the last Court is mandated.
publication of the notice.
_________________
GROUNDS FOR CHANGE OF NAME
1. When the name is ridiculous, RULE 108
dishonourable or extremely difficult to CANCELLATION OR CORRECTION OF
write or pronounce ENTRIES IN THE CIVIL REGISTRY
2. When the change results as a legal
consequence, as in legitimation; Who may file?
3. When the change will avoid confusion Any person interested in an act, event,
4. When one has continuously used and order or decree affecting the civil status
been known since childhood by a of a person which has been record in
Filipino name, and was unaware of the civil register
alien parentage;
5. Since desire to adopt a Filipino name to Where to file?
erase signs of former lineage, all in good The petition for correction or
faith and without prejudicing anybody; cancellation may be filed in the Court of
First Instance of the province where the
corresponding civil registry is located.
SPECIAL PROCEEDINGS
Book by Dean Gemy Lito Festin
HOW MAY CORRECTION OF ENTRIES
BE EFFECTED?
1. Administrative Proceedings
Under RA 9048/10172 for clerical
and typographical errors: change of
first name or nickname, month and
day of date of birth or sex of a
person
2. Judicial Proceedings
Under Rule 108 of the Rules of
Court, both clerical and substantial
errors may be corrected. However, in
substantial errors, it is required that
the proceeding is adversarial and
not summary.
RA 9048 does not cover clerical error on
surname. Where the entry to be corrected is
that of a surname, even if the error is
clerical merely and will not affect status,
citizenship or filiation of the person, it must
be done judicially under Rule 108.
JURISPRUDENCE
1. Whether or not petitioner is entitled to
change his first name (girl name) and
gender in his certificate of live birth by
reason of sex reassignment surgery.
A change of name is a privilege not a
right. Petitions for change of name
are controlled by statutes. Under RA
9048, a correction in 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.
To correct simply means to make or
set right; to remove the faults or
error from while to change means to
replace something with something
else of the same kind or with
something that serves as a 4. In view of the pronouncements herein
substitute. The birth certicicate of
petitioner contained no error. All
entries therein, including those
corresponding to his first name, and
sex, were all correct. No correction of
name.
LAGURA, J.
FINALS REVIEWER
Considering that there is n law
legally recognizing sex reassignment,
the determination of a person’s sex
made at the time of his or birth, if
not attended by error, is immutable.
2. Summary proceedings provided under
Rule 108 may be used only to correct
clerical, spelling, typographical and
other innocuous errors in the civil
registry. Substantial or contentions
alterations may be allowed only in
adversarial proceedings, in which all
interested parties are impleaded and
due process is observed.
Where the effect of a correction of an
entry in a civil registry will change the
status of a person from legitimate to
illegitimate, the same cannot be granted
in summary proceedings. The changes
sought by respondent were substantial,
thus, an adversarial proceeding is
essential in order to fully thresh out the
allegations in respondents petition.
Rule 108 is the appropriate adversary
proceeding to effect substantial
corrections and changes in entries of
the civil register.
3. While it is true that Rule 108 cannot be
availed of to determine the validity of
marriage, however, in this case, there
was no marriage to speak of, but the
correction of the record of such
marriage to reflect the truth as set forth
by the evidence. The facts of the case
show that there was no actually no
marriage between Mary Jane and Jogn
Starr that took place. She was not even
aware of such existence. Mary Jane do
not seek the nullification of marriage as
there was no marriage to speak of, but
the correction of the record of such
marriage.
made, the Court sees it fit to adopt the
following rules respecting the
requirement of affixing the signature of
the acknowledging parent in any
private handwritten instrument wherein
an admission of filiation of a legitimate
or illegitimate child is made:
SPECIAL PROCEEDINGS LAGURA, J.
Book by Dean Gemy Lito Festin FINALS REVIEWER

 Where the private handwritten the substantial rights of the person

instrument is the lone piece of appealing, unless it be an order
evidence submitted to prove granting or denying a motion for
filiation, there should be strict reconsideration or new trial.
compliance with the requirement
that the same must be signed by
the acknowledging parent; and
 Where the private handwritten
instrument is accompanied by
other relevant and competent
evidence, it suffices that the claim
of filiation therein be shown to
have been made and handwritten
by acknowledging parent as it is
merely corroborative of such other
evince.

RULE 109
APPEALS IN SPECIAL PROCEEDINGS

Who may appeal?

Ant interested person may appeal in
special proceedings from an order or
judgment rendered by the Court of First
Instance or Juvenile ad Domestic
Relations Court.

What are orders or judgments from

which appeals may be taken under
Rule 109 of the Rules of Court:

1. Allows or disallows a will

2. Determines the lawful heirs of the
estate of the deceased person, or the
distributive share of the estate
which the such person is entitled
3. Allows, in whole or in part, claims
against the estate of a deceased
person, or allows claims in behalf of
the estate in offset to a claim against
it.
4. Settlement of account of the
executor, administrator, trustee or
guardian
5. Constitutes, in a proceeding relating
to settlement of the estate of a
deceased person or administration
of a trustee or guardian, a final
judgment determining the rights of
the party appealing, however, n
appeal shall be allowed from
appointment of an special
administrator
6. Is the final order or judgment
rendered in case which would affect