II.

RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN

RELATION TO CUSTODY OF MINORS (A.M. No. 03-04-04-SC)

SALIENT POINTS:
The rule applies to petitions for custody of minors and writs of habeas corpus in relation
thereto. The Rules of Court applies suppletorily. The writ of habeas corpus is
prosecuted for the purpose of determining the right of custody over a child.

There are requisites for the valid grant of the writ in cases where the custody over a
minor is withheld from a person lawfully entitled therein. These are the as follows:
1. The petitioner has the right of custody over the minor;
2. The rightful custody over the minor is being withheld from the petitioner by the
respondents;
3. It is to the best interest of the minor concerned to be in the custody of petitioner
and not that of the respondents

The main factor to be considered in here is the best interests of the minor. Paramount
consideration must be given to his or her material and moral welfare.

JURISDICTION AND 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 or with the CA or the SC.

If filed with the Family Court where the petitioner resides, or where the minor may be
found, the writ is enforceable within the judicial region where the Family Court belongs.

If filed with the CA or the SC, or with any of its members, the writ shall be enforceable
anywhere in the Philippines. Upon issuance of the writ by the SC or CA, it may be made
returnable to a Family Court or to any regular court within the region where the
petitioner resides or where the minor may be found.

If the presiding judge of the Family Court is absent, then the petition may be filed with a
regular court, provided that the regular court shall refer the case to the Family Court as
soon as the presiding judge returns to duty. If there are no Family Courts in the area,
then the petition may be filed with the regular courts

A motion to dismiss is not allowed except on the ground of lack of jurisdiction over the
subject matter or over the parties. Any other ground that might warrant the dismissal of
the petition may be raised as an affirmative defense in the answer. Also, pre-trial is
mandatory.
HOLD DEPARTURE ORDER: The minor child shall not be brought out of the country
without prior order from the court while the petition is pending. The court, motu proprio
or upon application under oath, may issue ex parte a hold departure order, addressed to
the Bureau of Immigration and Deportation (BID), directing it not to allow the departure
of the minor from the Philippines.

The court may recall the hold departure order motu proprio, or upon verified motion of
any of the parties after summary hearing, subject to such terms and conditions as may
be necessary for the best interests of the minor.

PROTECTION ORDER: The court may issue such order requiring any person:
1. To stay away from the home, school, business, or place of employment of the
minor, other parent or any other party, or from any other specific place
designated by the court;
2. To cease and desist from harassing, intimidating, or threatening such minor or
the other parent or any person to whom custody of the minor is awarded;
3. To refrain from acts of commission or omission that creates an unreasonable risk
to the health, safety, or welfare of the minor;
4. To permit a parent or a party entitled to visitation by a court order or a separation
agreement, to visit the minor at stated periods;
5. To permit a designated party to enter the residence during a specified period of
time in order to take personal belongings not contested in a proceeding pending
with the
6. Family Court; and
7. To comply with such other orders as are necessary for the protection of the minor

PROCEDURE:
Any person claiming rightful custody of a minor may file a verified petition is filed
alleging the following:
1. The personal circumstances of the petitioner and of the respondent;
2. The name, age and present whereabouts of the minor and his or her
relationship to the petitioner and the respondent;
3. The material operative facts constituting deprivation of custody; and
4. Such other matters which are relevant to the custody of the minor

The verified petition must also be accompanied by a certificate against forum

shopping personally signed by the petitioner.
If sufficient in form and substance, court shall direct the clerk of court to issue
summons, which shall be issued together with a copy of the petition personally
on respondent.

Within a period of five (5) days, the respondent shall file a verified answer.

Upon filing of answer or expiration of period to file it, court may order a social
worker to make a case study of the minor and the parties and to submit a report
and recommendation at least 3 days before the scheduled pre-trial. The court
may also issue a provisional order awarding custody of the minor. Further, the
court shall provide in its order awarding provisional custody appropriate visitation
rights to the non-custodial parent/s, unless the court finds said parent/s unfit or
disqualified.

Within 15 days after filing of answer or expiration of period to file it, the court shall
issue an order of the following:
1. Fixing a date for the pre-trial conference;
2. Directing the parties to file and serve their respective pre-trial briefs in such
manner as shall ensure receipt thereof by the adverse party at least 3 days
before the date of pre-trial; and
3. Requiring the respondent to present the minor before the court

The filing of the pre-trial brief must contain the following:

1. A statement of the willingness of the parties to enter into agreements that
may be allowed by law, indicating its terms;
2. A concise statement of their respective claims together with the applicable
laws and authorities;
3. Admitted facts and proposed stipulations of facts;
4. The disputed factual and legal issues;
5. All the evidence to be presented, briefly stating or describing its nature and
purpose;
6. The number and names of the witnesses and their respective affidavits
which shall serve as the affiant's testimony on direct examination; and
7. Such other matters as the court may require be included in the pre-trial brief

In the pre-trial, the parties may agree on the custody of the minor. If parties
disagree, court may refer to a mediator who has 5 days to effect an agreement
between the parties. If still not settled, court to proceed with pre-trial conference.

In the event that petitioner failed to appear at the pre-trial, the case shall be
dismissed, unless his counsel or a duly authorized representative appears in
court and proves a valid excuse for the nonappearance. Also, if respondent has
filed his answer but fails to appear at the pre-trial, the petitioner shall be allowed
to present his evidence ex parte. The court shall then render judgment on the
basis of the pleadings and the evidence thus presented

Court renders judgment awarding custody of the minor to the proper party
considering the best interests of the minor. Court may order either or both
parents to give an amount necessary for the support, maintenance and education
of the minor, irrespective of who may be its custodian Further, the court may also
issue any order that is just and reasonable permitting the parent who is deprived
of custody to visit or have temporary custody.

A motion for reconsideration or new trial within 15 days from notice of judgment
must be filed first before one may file an appeal. Any aggrieved party may appeal
by filing a Notice of Appeal within 15 days from notice of the denial of the motion
for reconsideration or new trial and serving a copy thereof on the adverse parties

File a verified
petition
 Issuance of
summons

5 days
File a verified
answer

Provisional order awarding

Case study by a social worker
custody of the minor

15 days

Court order

File Pre-Trial
brief

Pre-Trial

Court order on parent/s to Court order permitting visit

Award of custody
give necessary amount or temporary custody

Motion for
Motion for New Trial
Reconsideration
15 days

Notice of Appeal

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM, MONINA P. LIM & IN RE:
PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM, MONINA P. LIM
G.R. Nos. 168992-93. May 21, 2009

FACTS:
Petitioner is an optometrist by Profession and was married to Primo Lim. They were
childless. Minor children, whose parents were unknown, were entrusted to them by a
certain Lucia Ayuban. Being so eager to have a child of their own, petitioner and Lim
registered the children to make it appear that they were the children's parents. Such
children were named Michelle P. Lim and Michael Jude P. Lim.

The spouses reared and cared for the children as if they were their own. They sent the
children to exclusive schools. They used the surname "Lim" in all their school records
and documents. Unfortunately Lim died. On 27 December 2000, petitioner married
Angel Olario, an American citizen. Thereafter, petitioner decided to adopt the children
by availing of the amnesty given under Republic Act No. 8552 to those individuals who
simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions
for the adoption of Michelle and Michael before the trial court. At the time of the filing of
the petitions for adoption, Michelle was 25 years old and already married, while Michael
was 18 years and seven months old.

Michelle and her husband gave their consent to the adoption as evidenced by their
Affidavits of Consent. Michael also gave his consent to his adoption as shown in his
Affidavit of Consent. Petitioner's husband Olario likewise executed an Affidavit of
Consent for the adoption of Michelle and Michael. RTC dismissed the petitions. It also
denied the motion for reconsideration filed by the petitioner.

ISSUE: Whether petitioner, who has remarried, can singly adopt

RULING:

NO.

It is undisputed that, at the time the petitions for adoption were filed, petitioner had
already remarried. She filed the petitions by herself, without being joined by her
husband Olario. The court has no other recourse but to affirm the trial court's decision
denying the petitions for adoption. The law is explicit in Section 7, Article III of RA 8552.

The use of the word "shall" in the above-quoted provision means that joint adoption by
the husband and the wife is mandatory. As the child to be adopted is elevated to the
level of a legitimate child, it is but natural to require the spouses to adopt jointly.
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, 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 set forth in Section 7 of RA 8552
such as: (1) he must prove that his country has diplomatic relations with the Republic of
the Philippines; (2) he must have been living in the Philippines for at least three
continuous years prior to the filing of the 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 adopter's country as the
latter's adopted child.

However, none of these qualifications were shown and proved during the trial. These
requirements on residency and certification of the alien's qualification to adopt cannot
likewise be waived pursuant to Section 7. The children or adoptees are not relatives
within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are
the adoptees the legitimate children of petitioner. Petitioner, being married at the time
the petitions for adoption were filed, should have jointly filed the petitions with her
husband. We cannot make our own legislation to suit petitioner. The filing of a case for
dissolution of the marriage between petitioner and Olario is of no moment. It is not
equivalent to a decree of dissolution of marriage.

OPINION:

VICENTE B. TEOTICO VS. ANA DEL VAL CHAN, ETC.

G.R. No. L-18753. March 26, 1965

FACTS:
Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in the City of Manila
leaving properties worth P600,000.00. She left a will written in Spanish which she
executed at her residence in No. 2 Legarda St., Quiapo, Manila.

Among the many legacies and devises made in the will was one of P20,000.00 to Rene
A. Teotico, married to the testatrix's niece named Josefina Mortera. To said spouses the
testatrix left the usufruct of her interest in the Calvo building, while the naked ownership
thereof she left in equal parts to her grandchildren who are the legitimate children of
said spouses. The testatrix also instituted Josefina Mortera as her sole and universal
heir to all the remainder of her properties not otherwise disposed of in the will.

Vicente B. Teotico filed a petition for the probate of the will. Ana del Val Chan, claiming
to be an adopted child of Francisca Mortera, a deceased sister of the testatrix, as well
as an acknowledged natural child of Jose Mortera, a deceased brother of the same
testatrix, filed an opposition to the probate of the will. Vicente B. Teotico filed a motion
to dismiss the opposition alleging that the oppositor had no legal personality to
intervene. The probate court, after due hearing, allowed the oppositor to intervene as an
adopted child of Francisco Mortera. The probate court admitted the will for probate but
declared that the disposition made in favor of Dr. Rene Teotico was void. Motions for
reconsideration were filed however, these were denied. The decision was appealed.

ISSUE: Whether the oppositor has any interest in any of the provisions of the will, and,
in the negative, whether she would acquire any right to the estate in the event that the
will is denied probate

RULING:

NO.

Under the terms of the will, oppositor has no right to intervene because she has no
interest in the estate either as heir, executor, or administrator, nor does she have any
claim to any property affected by the will, because it nowhere appears therein any
provision designating her as heir, legatee or devisee of any portion of the estate. She
has also no interest in the will either as administratrix or executrix. Neither has she any
claim against any portion of the estate because she is not a co-owner thereof, and while
she previously had an interest in the Calvo building located in Escolta, she had already
disposed of it long before the execution of the will.

She would acquire such right only if she were a legal heir of the deceased, but she is
not under our Civil Code. The oppositor cannot also derive comfort from the fact that
she is an adopted child of Francisca Mortera because under our law the relationship
established by adoption is limited solely to the adopter and the adopted does not extend
to the relatives of the adopting parents or of the adopted child except only as expressly
provided for by law. Hence, no relationship is created between the adopted and the
collaterals of the adopting parents. As a consequence, the adopted is an heir of the
adopter but not of the relatives of the adopter.

OPINION: