RULE 99

Adoption and Custody of Minors

Section 6. Proceedings as to the child whose parents are separated. Appeal. — When
husband and wife are divorce or living separately and apart from each other, and the
question as to the care, custody, and control of a child or children of their marriage is brought
before a Court of First Instance by petition or as an incident to any other proceeding, the
court, upon hearing the testimony as may be pertinent, shall award the care, custody, and
control of each such child as will be for its best interest, permitting the child to choose which
parent it prefers to live with if it be over ten years of age, unless the parent so chosen be
unfit to take charge of the child by the reason of moral depravity, habitual drunkenness,
incapacity, or poverty. If, upon such hearing, it appears that both parents are improper
persons to have the care, custody, and control of the child, the court may either designate
the paternal or maternal grandparent of the child, or his oldest brother or sister, or some
reputable and discreet person to take charge of such child, or commit it to any suitable
asylum, children's home, or benevolent society. The court may in conformity with the
provisions of the Civil Code order either or both parents to support or help support said child,
irrespective of who may be its custodian, and may make any order that is just and
reasonable permitting the parent who is deprived of its care and custody to visit the child or
have temporary custody thereof. Either parent may appeal from an order made in
accordance with the provisions of this section. No child under seven years of age shall be
separated from its mother, unless the court finds there are compelling reasons thereof.

Republic of the Philippines

SUPREME COURT
Manila

A.M. No. 03-04-04-SC             April 22, 2003

RE: PROPOSED RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS

IN RELATION TO CUSTODY OF MINORS

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court
submitting for this Court’s consideration and approval the Proposed Rule on custody of
Minors and Writ of Habeas Corpus in Relation to Custody of Minors, the Court Resolved to
APPROVE the same.

The Rule shall take effect on May 15, 2003 following its publication in a newspaper of
general circulation not later than April 30, 2003.

April 22, 2003

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez,

Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Quisumbing, J., on official leave.

RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS

IN RELATION TO CUSTODY OF MINORS

SECTION 1. Applicability. - This rule shall apply to petitions for custody of minors and writs
of habeas corpus in relation thereto.

The Rules of Court shall apply suppletorily.

Section 2. Petition for custody of minors; who may file.- A verified petition for the rightful
custody of a minor may be filed by any person claiming such right. The party against whom it
may be filed shall be designated as the respondent.

Section 3. Where to file petition. - The petition for custody of minors shall be filed with the
Family Court of the province or city where the petitioner resides or where the minor may be
found.

Section 4. Contents of petition. - The verified petition shall allege the following:

(a) The personal circumstances of the petitioner and of the respondent;

(b) The name, age and present whereabouts of the minor and his or her relationship
to the petitioner and the respondent;

(c) The material operative facts constituting deprivation of custody; and

(d) Such other matters which are relevant to the custody of the minor.

The verified petition shall be accompanied by a certificate against forum shopping, which the
petitioner must sign personally.

Section 5. Summons; personal service on respondent. - If the court is satisfied that the
petition is sufficient in form and substance, it shall direct the clerk of court to issue summons,
which shall be served together with a copy of the petition personally on the respondent.

Section 6. Motion to Dismiss. - A motion to dismiss the petition is not allowed except on
the ground of lack of jurisdiction over the subject matter or over the parties. Any other ground
that might warrant the dismissal of the petition may be raised as an affirmative defense in the
answer.

Section 7. Verified Answer. - The respondent shall file an answer to the petition, personally
verified by him, within five days after service of summons and a copy of the petition.

Section 8. Case study; duty of social worker. - Upon the filing of the verified answer or the
expiration of the period to file it, the court may order a social worker to make a case study of
the minor and the parties and to submit a report and recommendation to the court at least
three days before the scheduled pre-trial.

Section 9. Notice of mandatory pre-trial. - Within fifteen days after the filing of the answer
or the expiration of the period to file answer, the court shall issue an order: (1) fixing a date
for the pre-trial conference; (2) directing the parties to file and serve their respective pre-trial
briefs in such manner as shall ensure receipt thereof by the adverse party at least three days
before the date of pre-trial; and (3) requiring the respondent to present the minor before the
court.

The notice of its order shall be served separately on both the parties and their respective
counsels. The pre-trial is mandatory.

Section 10. Contents of pre-trial brief. - The pre-trial brief shall contain the following:

(a) A statement of the willingness of the parties to enter into agreements that may be
allowed by law, indicating its terms;

(b) A concise statement of their respective claims together with the applicable laws
and authorities;

(c) Admitted facts and proposed stipulations of facts;

(d) The disputed factual and legal issues;

 (e) All the evidence to be presented, briefly stating or describing its nature and
purpose;

(f) The number and names of the witnesses and their respective affidavits which shall
serve as the affiant's testimony on direct examination; and

(g) Such other matters as the court may require to be included in the pre-trial brief.

Failure to file the pre-trial brief or to comply with its required contents shall have the same
effect as failure to appear at the pre-trial.

Section 11. Effect of failure to appear at the pre-trial.-(a) If the petitioner fails to appear
personally at the pre-trial, the case shall be dismissed, unless his counsel or a duly
authorized representative appears in court and proves a valid excuse for the non-
appearance of the petitioner.

(b) If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner
shall be allowed to present his evidence ex parte. The court shall then render judgment on
the basis of the pleadings and the evidence thus presented.

Section 12. What may be done at pre-trial. - At the pre-trial, the parties may agree on the
custody of the minor. If the parties fail to agree, the court may refer the matter to a mediator
who shall have five days to effect an agreement between the parties. If the issue is not
settled through mediation, the court shall proceed with the pre-trial conference, on which
occasion it shall consider such other matters as may aid in the prompt disposition of the
petition.

Section 13. Provisional order awarding custody. - After an answer has been filed or after
expiration of the period to file it, the court may issue a provisional order awarding custody of
the minor. As far as practicable, the following order of preference shall be observed in the
award of custody:

(a) Both parents jointly;

(b) Either parent, taking into account all relevant considerations, especially the
choice of the minor over seven years of age and of sufficient discernment, unless the
parent chosen is unfit;

(c) The grandparent, or if there are several grandparents, the grandparent chosen by
the minor over seven years of age and of sufficient discernment, unless the
grandparent chosen is unfit or disqualified;

(d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit
or disqualified;

(e) The actual custodian of the minor over twenty-one years of age, unless the
former is unfit or disqualified; or

(f) Any other person or institution the court may deem suitable to provide proper care
and guidance for the minor.

Section 14. Factors to consider in determining custody. - In awarding custody, the court

shall consider the best interests of the minor and shall give paramount consideration to his
material and moral welfare. The best interests of the minor refer to the totality of the
circumstances and conditions as are most congenial to the survival, protection, and feelings
of security of the minor encouraging to his physical, psychological and emotional
development. It also means the least detrimental available alternative for safeguarding the
growth and development of the minor.

The court shall also consider the following:

 (a) Any extrajudicial agreement which the parties may have bound themselves to
comply with respecting the rights of the minor to maintain direct contact with the non
custodial parent on a regular basis, except when there is an existing threat or danger
of physical, mental, sexual or emotional violence which endangers the safety and
best interests of the minor;

(b) The desire and ability of one parent to foster an open and loving relationship
between the minor and the other parent;

(c) The health, safety and welfare of the minor;

(d) Any history of child or spousal abuse by the person seeking custody or who has
had any filial relationship with the minor, including anyone courting the parent;

(e) The nature and frequency of contact with both parents;

(f) Habitual use of alcohol, dangerous drugs or regulated substances;

(g) Marital misconduct;

(h) The most suitable physical, emotional, spiritual, psychological and educational
environment for the holistic development and growth of the minor; and

(i) The preference of the minor over seven years of age and of sufficient
discernment, unless the parent chosen is unfit.

Section 15. Temporary visitation rights. - The court shall provide in its order awarding
provisional custody appropriate visitation rights to the non-custodial parent or parents, unless
the court finds said parent or parents unfit or disqualified.

The temporary custodian shall give the court and non custodial parent or parents at least five
days' notice of any plan to change the residence of the minor or take him out of his residence
for more than three days provided it does not prejudice the visitation rights of the non-
custodial parent or parents.

Section 16. Hold Departure Order. - The minor child subject of the petition shall not be
brought out of the country without prior order from the court while the petition is pending.

The court, motu proprio or upon application under oath, may issue ex parte a hold departure
order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the
departure of the minor from the Philippines without the permission of the court.

The Family Court issuing the hold departure order shall furnish the Department of Foreign
Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of
the hold departure order within twenty-four hours from its issuance and through the fastest
available means of transmittal.

The hold departure order shall contain the following information:

(a) The complete name (including the middle name), the date and place of birth, the
nationality and the place of last residence of the person against whom a hold
departure order has been issued or whose departure from the country has been
enjoined;

(b) The complete title and docket number of the case in which the hold departure
order was issued;

(c) The specific nature of the case;

(d) The date of the hold departure order; and

 (e) A recent photograph, if available, of the party against whom a hold departure
order has been issued or whose departure from the country has been enjoined.

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

Section 17. Protection Order. - The court may issue a Protection Order requiring any
person:

(a) To stay away from the home, school, business, or place of employment of the
minor, other parent or any other party, or from any other specific place designated by
the court;

(b) To cease and desist from harassing, intimidating, or threatening such minor or the
other parent or any person to whom custody of the minor is awarded;

(c) To refrain from acts of commission or omission that create an unreasonable risk
to the health, safety, or welfare of the minor;

(d) To permit a parent, or a party entitled to visitation by a court order or a separation

agreement, to visit the minor at stated periods;

(e) To permit a designated party to enter the residence during a specified period of
time in order to take personal belongings not contested in a proceeding pending with
the Family Court; and

(f) To comply with such other orders as are necessary for the protection of the minor.

Section 18. Judgment. - After trial, the court shall render judgment awarding the custody of
the minor to the proper party considering the best interests of the minor.

If it appears that both parties are unfit to have the care and custody of the minor, the court
may designate either the paternal or maternal grandparent of the minor, or his oldest brother
or sister, or any reputable person to take charge of such minor, or commit him to any suitable
home for children.

In its judgment, the court may order either or both parents to give an amount necessary for
the support, maintenance and education of the minor, irrespective of who may be its
custodian. In determining the amount of support, the court may consider the following
factors: (1) the financial resources of the custodial and non-custodial parent and those of the
minor; (2) the physical and emotional health, special needs, and aptitude of the minor; (3) the
standard of living the minor has been accustomed to; and (4) the non-monetary contributions
that the parents would make toward the care and well-being of the minor.

The court may also issue any order that is just and reasonable permitting the parent who is
deprived of the care and custody of the minor to visit or have temporary custody.

Section 19. Appeal. - No appeal from the decision shall be allowed unless the appellant has
filed a motion for reconsideration or new trial within fifteen days from notice of judgment.

An aggrieved party may appeal from the decision by filing a Notice of Appeal within fifteen
days from notice of the denial of the motion for reconsideration or new trial and serving a
copy thereof on the adverse parties.

Section 20. Petition for writ of habeas corpus. - A verified petition for a writ of habeas
corpus involving custody of minors shall be filed with the Family Court. The writ shall be
enforceable within its judicial region to which the Family Court belongs.
However, the petition may be filed with the regular court in the absence of the presiding
judge of the Family Court, provided, however, that the regular court shall refer the case to
the Family Court as soon as its presiding judge returns to duty.

The petition may also be filed with the appropriate regular courts in places where there are
no Family Courts.

The writ issued by the Family Court or the regular court shall be enforceable in the judicial
region where they belong.

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.
The writ may be made returnable to a Family Court or to any regular court within the region
where the petitioner resides or where the minor may be found for hearing and decision on
the merits.

Upon return of the writ, the court shall decide the issue on custody of minors. The appellate
court, or the member thereof, issuing the writ shall be furnished a copy of the decision.

Section 21. Confidentiality of proceedings. - The hearings on custody of minors may, at

the discretion of the court, be closed to the public and the records of the case shall not be
released to non-parties without its approval.

Section 22. Effectivity. - This Rule shall take effect on May 15, 2003 following its
publication in a newspaper of general circulation not later than April 30, 2003.

The custody of an illegitimate child is governed by the

provision of Section 1 of Republic Act (RA) 9255 (An Act
Allowing Illegitimate Children to Use the Surname of their
Father, Amending for the Purpose Article 176 of Executive
Order 209, Otherwise known as the “Family Code of the
Philippines),” which states:
“Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be
entitled to support in conformity with this Code. xxx xxx
xxx xxx.”
The above cited law is clear that the parental authority
over an illegitimate child belongs to the mother. “The right
of custody accorded to parents springs from the exercise
of parental authority (Santos vs. Court of Appeals, GR
113054, March 16, 1995, Ponente: Associate Justice
Flerida Ruth Romero).”
Gilbert’s claim that the decision of the child should be
followed has no legal basis. The choice of the child as to
which parent he likes to live with applies only to a
situation where the parents are married. Since your son is
an illegitimate child, then he is not given the option to
choose. This is in consonance with the decision in the
case of Masbate, et al. vs. Relucio (GR 235498, July 30,
2018), where the Supreme Court through Associate
Justice Estela Perlas Bernabe stated:
“Xxx xxx xxx. Accordingly, since the statement in Pablo-
Gualberto invoked by petitioners, i.e., that “Article 213
and Rule 99 similarly contemplate a situation in which the
parents of the minor are married to each other x x x,” was
based on Briones, then that same statement must be
understood according to its proper context — that is, the
issue pertaining to the right of a child to choose which
parent he prefers to live with. The reason as to why this
statement should be understood in said manner is
actually not difficult to discern: the choice of a child over
seven years of age (first paragraph of Article 213 of the
Family Code) and over 10 years of age (Rule 99 of the
Rules of Court) shall be considered in custody disputes
only between married parents because they are, pursuant
to Article 211 of the Family Code, accorded joint parental
authority over the persons of their common children. On
the other hand, this choice is not available to an
illegitimate child, much more one of tender age such as
Queenie (second paragraph of Article 213 of the Family
Code), because sole parental authority is given only to the
mother, unless she is shown to be unfit or unsuitable
(Article 176 of the Family Code). xxx xxx xxx xxx.”
Applying the above-cited decision in your situation, the
parental authority belongs to you, being the mother. The
only instance where such custody can be removed is when
it is shown that you are unfit or unsuitable.
This opinion is solely based on the facts you have narrated
and our appreciation of the same. The opinion may vary
when the facts are changed or further elaborated. We hope
that we were able to enlighten you on the matter.

Republic of the Philippines

Congress of the Philippines
Metro Manila

Twelfth Congress
Third Regular Session

Begun and held in Metro Manila, on Monday, the twenty-second day of July, two thousand
three.
Republic Act No. 9255             February 24 2004

AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THEIR

FATHER, AMENDING FOR THE PURPOSE ARTICLE 176 OF EXECUTIVE ORDER NO.
209, OTHERWISE KNOWN AS THE "FAMILY CODE OF THE PHILIPPINES"

Be it enacted by the Senate and House of Representatives of the Philippine Congress

Assembled:

SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family Code of
the Philippines, is hereby amended to read as follows:

"Article 176. Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to support in conformity with
this Code. However, illegitimate children may use the surname of their father if their
filiation has been expressly recognized by the father through the record of birth
appearing in the civil register, or when an admission in a public document or private
handwritten instrument is made by the father. Provided, the father has the right to
institute an action before the regular courts to prove non-filiation during his lifetime.
The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child."

SECTION 2. Repealing Clause. – All laws, presidential decrees, executive orders,

proclamations, rules and regulations, which are inconsistent with the provisions of this Act
are hereby repealed or modified accordingly.

SECTION 3. Effectivity Clause. – This Act shall take effect fifteen (15) days from its
publication in the Official Gazette or in two (2) newspapers of general circulation.

Approved,

FRANKLIN DRILON JOSE DE VENECIA JR.

President of the Senate Speaker of the House of
Representatives

This Act which is a consolidation of House Bill No. 4437 and Senate Bill No. 2510 was finally
passed by the House of Representatives and the Senate on January 21, 2004 and February
4, 2004, respectively.

OSCAR G. YABES ROBERTO P. NAZARENO

Secretary of Senate Secretary General
House of Represenatives

Approved: February 24 2004

GLORIA MACAPAGAL-ARROYO
President of the Philippines