051821 – Spec Pro Discussion

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

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.

Q: If the petitioner is residing in Cotabato and the child is residing in Cebu, where do we file?

A: The Court may just order to transfer the venue for the purpose of convenience – forum
conveniens.

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.

Issuance – if the court is satisfied that the petition is sufficient in form and substance, it shall direct
the clerk of court to issue summons.

Personal service – shall be observed together with a copy of the petition 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.
For the rule on custody of minors, motion to dismiss is not allowed. If it is a petition more or less ang
response dito is comment. Sa kanilang comment or answer motion to dismiss is not allowed except
if the same is grounded with lack of jurisdiction over the subject matter or over the parties.

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.

What is the effect if petitioner fails 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.

So during the pre-trial the parties may…

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.

We have also the grant of custody.

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.

What is the factor here in awarding the custody of the minor whether it is temporary or permanent?
The main factor to consider in the determination of custody is the best interest of the minor. It refers 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.

We also have other factors to consider in the determination of custody:

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.

Di ba there is an award of temporary or permanent custody to a parent, how about the non-custodial
parent?

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.

What if the custodial parent wants to bring the minor abroad?

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.

We also have protection order.

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.

What if both parents are unfit to take care and custody 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.

3 kinds of custody in the rule

 1. Temporary custody
2. Temporary visitation rights – granted to non-custodial parent
3. Permanent custody

Ex. If the father is irresponsible and the mother files a petition for the custody of minor, so upon
judgment the mother was awarded custody. Sabi ng father, okay lang, at least wala na akong
susuportahan, sa iyo naman anak natin. Hanggang doon na lang ba? The father may still be held liable
for support. The Court must require him to give support.

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.

Is appeal allowed?

GR: No.

Exception: aggrieved party has filed a motion for reconsideration or motion for new trial within 15 days
from notice of judgment.

Mode of appeal – notice of appeal

Period to file the notice of appeal – 15 days from notice of denial of MR or MNT

Ex. If I am the non-custodial parent, for me to appeal, I must file a MR or MNT. If the same is denied, I
may now file a notice of appeal, 15 days from notice of denial.

By virtue of this we also have petition for writ of habeas corpus.

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.

Remember, saan nga natin ififile yung petition for custody of minors? Family court where the petitioner
or the minor resides; pero yung petition for issuance of habeas corpus may be filed not just in the family
court where the minor resides it may also be filed with the Court of Appeals or Supreme Court. So anong
gagawin dito ng Supreme Court, it may grant or deny the petition for the issuance of the writ of habeas
corpus usually they remand the case to the RTC or family court that will be the best venue for the said
petition.

Change of Name

ALAMIS v. CA

FACTS: Abdulhamid Ballaho was born and registered as Anacleto Ballaho Alanis III. He is a legitimate
child of Mario Alanis and Jarmila Ballaho. However, he never used his registered name. In fact, in all his
records growing up, he had been using the name Abdulhamid Ballaho. He filed a petition in court
seeking to change his name and surname so that he may be officially known as Abdulhamid Ballaho.

The Regional Trial Court denied his petition. The Court of Appeals affirmed the RTC. It was ruled that he
cannot change his first name because doing so will only create more confusion. He cannot change his
last name because according to Article 174 of the Family Code, the use of surnames must be in
accordance with the Civil Code. Article 364 of the Civil Code provides that legitimate and legitimated
children shall principally use the surname of the father. According to the trial court, Abdulhamid’s
remedy was to correct his other records to conform with his birth certificate.

ISSUE: Whether or not a legitimate child may use as surname the surname of his or her mother.

HELD: Yes. Indeed, the provision states that legitimate children shall “principally” use the surname of the
father, but “principally” does not mean “exclusively.” This gives ample room to incorporate into Article
364 the State policy of ensuring the fundamental equality of women and men before the law, and no
discernible reason to ignore it.

Section 14, Art. II of the 1987 Constitution provides: The State recognizes the role of women in nation-
building, and shall ensure the fundamental equality before the law of women and men.

Article II, Section 14 implies the State’s positive duty to actively dismantle the existing patriarchy by
addressing the culture that supports it. Courts, like all other government departments and agencies,
must ensure the fundamental equality of women and men before the law. Accordingly, where the text
of a law allows for an interpretation that treats women and men more equally, that is the correct
interpretation.

Anent Abdulhamid’s prayer to change his registered surname – it is granted. One of the grounds to allow
a change in registered name is if it avoids confusion. Certainly, to force Abdulhamid to use his registered
name despite the fact that he never used it before will only create confusion.
NOTES:

Arguments of the petitioner in the Supreme Court

 Petitioner has been using the name Abdullhamid Ballaho in all his records and transactions
 He is also known to and called by his family and friends by such name.
 He has never used the name Anacleto Ballaho Allanis III even once in his life. To have the
petitioner suddenly use the name Anacleto Ballaho Alanis III would cause undue embarrassment
to the petitioner since he has never been known by such name.
 Petitioner has shown not only some proper or compelling reason but also that he will be
prejudiced by the use of his true and official name.
 A mere correction of his private and public records to conform to the name stated in his
Certificate of Live Birth would create more confusion because petitioner has been using the
name Abdullhamid Ballaho since enrollment in grade school until finishing his law school degree.

The petition to change name should be granted:

 The SC held that indeed “confusion could arise” is evident.

 The RTC even acknowledged that confusion could exist here but found that granting his petition
would create more confusion.

Grounds to warrant change of name:

a) When the name is ridiculous, dishonorable, or extremely difficult to write or pronounce;

b) When the change results as a legal consequence of legitimation or adoption;
c) When the change will avoid confusion;
d) When one has continuously used and been known since childhood by a Filipino name and was
unaware of alien parentage;
e) When the change is based on a sincere desire to adopt a Filipino name to erase signs of former
alienage, all in good faith and without prejudice to anybody; and
f) When the surname causes embarrassment and there is no showing that the desired change of
name was for a fraudulent purpose or that the change of name would prejudice public interest.

Rule 103 Rule 108 R.A. No. 9048 R.A. No. 10172
Name of Law Change of name Cancellation/Correction Clerical Error Acts Amendment to
of Entries in the Civil R.A. No. 9048
Registry
Subject Matter Substantial Substantial and clerical Typographical or Typographical or
corrections (in corrections (change or clerical errors clerical
the change of corrections in the civil only (change of corrections (day
name) entries) name, nickname, and month of
and civil entries) birth or sex of a
person in civil
entries)
Who may file A person Any person interested Any person Any person
desiring to in any act, event, order having direct and having direct and
change his or decree concerning personal interest personal interest
 name (Sec. 1) the civil status of in the correction in the correction
persons which has of a clerical or of a clerical or
been recorded in the typographical typographical
civil register error in an entry error in an entry
and/or change of and/or change of
first name or first name or
nickname (Sec. 3) nickname (same
in RA 9048)
Venue RTC of the RTC f the city or 1. Local civil 1. Local civil
province province where the registry office registry
wherein the corresponding civil of the city or office of the
petitioner registry is located municipality city or
resides for 3 where the municipality
years prior to record being where the
the filing; or in sought to be record being
the city of corrected or sought to be
Manila (to the changed is corrected or
Juvenile and kept; changed is
Domestic 2. Local civil kept;
Relations Court) registry of 2. Local civil
the place registry of
where the the place
interested where the
party is interested
presently party is
residing or presently
domiciled; or residing or
3. Philippine domiciled; or
Consulates 3. Philippine
consulates
Kind of Judicial Judicial proceeding, Administrative Administrative
proceeding proceeding which is either proceeding proceeding
(always summary (merely
adversarial) clerical) or adversarial
(substantial)
Form Verified petition Verified petition Affidavit Affidavit
Notice and At least once a At least once a week At least once a At least once a
publication week for 3 for 3 consecutive week for 2 week for 2
consecutive weeks in a newspaper consecutive consecutive
weeks in a of general circulation weeks in a weeks in a
newspaper of newspaper of newspaper of
general general general
circulation circulation circulation
(publish the (publish the (publish the
notice of whole affidavit) whole affidavit)
hearing)
Where to Court of Court of Appeals Civil Registrar Civil Registrar
 appeal Appeals General General

Definition of terms

Clerical or typographical error

 Refers to an obvious mistake committed in clerical work, either in writing, copying, transcribing,
or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name
or misspelled place of birth and the like, and can be corrected or changed only by reference to
other existing record or records
 A clerical error is one which is visible to the eyes or obvious to the understanding; an error made
by a clerk or a transcriber; a mistake in copying or writing, or a harmless change such as a
correction of name that is clearly misspelled or of a misstatement of the occupation of the
parent.

Substantial/Contentious/Controversial Alterations

 Include those which may affect the citizenship, legitimacy of paternity or filiation, or legitimacy
of marriage
 May be allowed only in adversarial proceedings, in which all interested parties are impleaded
and due process is properly observed

To correct

 To make or set a right; to remove the faults or error from

To change

 To replace something with something else of the same kind or with something that serves as a
substitute

Rule 103 – change of name

 In rem proceeding
 The purpose is to change the name recorded in the civil register
 Before the passage of R.A. No. 9048, changing one’s name in the civil registry can only be
allowed if there is judicial authority, to wit:
“Civil Code. Art. 376 – No person can change his name or surname without judicial
authority.”

Rule 103 v. R.A. No. 9048

 R.A. No. 9048 relates to the administrative proceeding for the change of someone’s first name
 In order to substantially change one’s first name, a petition under Rule 103 must be filed.
 Correction of one’s surname can only be done under Rule 108.

Question: if from NHASSIE JOHN GONZAGA i-change to MARIA TERESA GONZAGA, unsa ang remedy?
Rule 103 because it is a substantial change of one’s name.

NHASSIE JOHN GONZAGA  NHASSIE JOHN AYALA = Rule 108 if surname

Requirement for change of name under Rule 103

- A change of name is a privilege and not a matter of right, such that a proper and reasonable
cause must exist before it may be authorized.

PAUL VINCENT REYES  PAUL BINSENT REYES = RA 9048

PAUL VINCENT REYES  JESETTE REYES = substantial change of name, Rule 103

PAUL VINCENT REYES  LORD VOLDEMORT REYES = substantial change of name, Rule 103

Rule 108 – Cancellation or Correction of Entries in the Civil Registry

Rule 103 refers to change of name; Rule 108 refers to other changes whether substantial or clerical

Section 2. Entries subject to cancellation or correction. — Upon good and valid grounds, the following
entries in the civil register may be cancelled or corrected: (a) births [subject to RA No. 9048, as
amended]: (b) marriage; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f)
judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l)
civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o)
changes of name [subject to RA No. 9048, as amended]

However, take note that births can now be clerical or typographical error may now be subject to RA
9048; however, take note na month and day lang so kung year dili puwede that’s why the remedy is Rule
108.

Clerical – summary judicial proceeding; substantial – adversarial judicial proceeding (the Civil Registry
and all interested parties must be notified; summons must be served upon them; publication)

Rule 108 covers both:

- Adversarial/adversary – if the correction pertains to substantial errors

 - Summary – if the correction pertains to clerical (typographical) mistakes:
EXPN: Clerical/typographical errors pertaining to the following can be corrected through
an administrative proceeding by filing a petition with the Local Civil Registry (R.A. No.
9048, as amended by R.A. No. 10172):
 First name/Nickname
 Day and/or Month of Birth
 Sex of a person (on the ground of clerical/typo error only)

SILVERIO v. REPUBLIC

FACTS: Silverio field a petition for the change of his first name “Rommel Jacinto” to “Mely” and his sex
from male to female in his birth certificate in the RTC of Manila, for reason of his sex reassignment. He
alleged that he is a male transsexual, he is anatomically male but thinks and acts like a female. The RTC
ruled in his favor, saying that it is in consonance with the principle of justice and equality.

The Republic, through the OSG, filed a petition for certiorari in the CA, alleging that there is no law
allowing change of name by reason of sex alteration. Petitioner filed a reconsideration but was denied.
Hence, this petition.

ISSUE: Whether or not a change in the “name” and “sex” entries in birth certificates are allowed by
reason of sex reassignment.

RULING: No. A change of name is a privilege and not a right. It may be allowed in cases where the name
is ridiculous, tainted with dishonor, or difficult to pronounce or write; a nickname is habitually used; or if
the change will avoid confusion. The petitioner’s basis of the change of his name is that he intends his
first name compatible with the sex he thought he transformed himself into thru surgery. The Court says
that his true name does not prejudice him at all, and no law allows the change of entry in the birth
certificate as to sex on the ground of sex reassignment. The petition was denied.

REPUBLIC v. CAGANDAHAN

FACTS: Cagandahan filed a Petition for Correction of Entries in Birth Certificate before the RTC. She
alleged that she was born on January 13, 1981 and was registered as a female in the Certificate of Live
Birth but while growing up, she developed secondary male characteristics and was diagnosed to have
Congenital Adrenal Hyperplasia (CAH) – a condition where persons afflicted possess both male and
female characteristics. She alleged that for all interests and appearances as well as in mind and emotion,
she has become a male person. Thus, she prayed that her birth certificate be corrected such that her
gender be changed from female to male and her first name be changed from Jennifer to Jeff.

Respondent testified and presented the testimony of Dr. Michael Sionzon of the Department of
Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a medical
certificate stating that respondent’s condition is known as CAH. He testified that this condition is very
rare, that respondent’s uterus is not fully developed because of lack of female hormones, and that she
has no monthly period. He further testified that respondent’s condition is permanent and recommended
the change of gender because respondent has made up her mind, adjusted to her chosen role as male,
and the gender change would be advantageous to her.

The RTC granted respondent’s petition.

Hence, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the
abovementioned ruling. The OSG contends, among others, that Rule 108 does not allow change of sex or
gender in the birth certificate and respondent’s claimed medical condition known as CAH does not make
her a male.

ISSUE: Whether or not the RTC erred in granting the petition on the ground of her medical condition.

RULING: No.

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must
look to the statutes. Rule 108 now applies only to substantial changes and corrections in entries in the
civil register.

Under Rep. Act No. 9048, a correction in the 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.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code. The acts, events or factual errors
contemplated under Article 407 of the Civil Code include even those that occur after birth.

Respondent undisputedly has CAH. It is one of the many conditions that involve intersex anatomy. An
organism with intersex may have biological characteristics of both male and female sexes.

In deciding this case, we consider the compassionate calls for recognition of the various degrees of
intersex as variations, which should not be subject to outright denial. The current state of Philippine
statutes apparently compels that a person be classified either as a male or as a female, but this Court is
not controlled by mere appearances when nature itself fundamentally negates such rigid classification.

In the instant case, if we determine respondent to be a female, then there is no basis for a change in the
birth certificate entry for gender. But if we determine, based on medical testimony and scientific
development showing the respondent to be other than female, then a change in the subject’s birth
certificate entry is in order.

Ultimately, we are of the view that where the person is biologically or naturally intersex the determining
factor in his gender classification would be what the individual, like respondent, having reached the age
of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and
considering that his body produces high levels of male hormones (androgen) there is preponderant
biological support for considering him as being male. Sexual development in cases of intersex persons
makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons,
like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or
interfere with what he was born with. And accordingly, he has already ordered his life to that of a male.
Respondent could have undergone treatment and taken steps, like taking lifelong medication, to force
his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead
taken its due course in respondent’s development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so
innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo
medical treatment to reverse the male tendency due to CAH. To him belongs the human right to the
pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of
action to take along the path of his sexual development and maturation. In the absence of evidence that
respondent is an “incompetent” and in the absence of evidence to show that classifying respondent as a
male will harm other members of society who are equally entitled to protection under the law, the
Court affirms as valid and justified the respondent’s position and his personal judgment of being a male.

We respect respondent’s congenital condition and his mature decision to be a male.

As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a
matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the
consequences that will follow. The trial court’s grant of respondent’s change of name from Jennifer to
Jeff implies a change of a feminine name to a masculine name. Considering the consequence that
respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s
change of name. Such a change will conform with the change of the entry in his birth certificate from
female to male.

The Republic’s petition is denied.

PEOPLE v. SALI

Facts: Lorena Omapas Sali filed a Verified Petition, dated November 26, 2008, for Correction of Entry
under Rule 108 of the Rules of Court before the RTC with the following material averments:

- Petitioner is a Filipino, of legal age, single and a resident [of] 941 D. Veloso St.[,] Baybay, Leyte;
- The respondent is located in Baybay City, Leyte and within the jurisdiction of this Honorable
Court where it can be served with summons and other processes of this Honorable Court;
- All parties herein have the capacity to sue and be sued;
- Petitioner is the daughter of Spouses Vedasto A. Omapas and Almarina A. Albay who was born
on April 24, 1968 in Baybay, Leyte.
- Unfortunately, in recording the facts of her birth, the personnel of the Local Civil Registrar of
Baybay, Leyte thru inadvertence and mistake erroneously entered in the records the following:
the first name of the petitioner as “DOROTHY” instead of “LORENA” and, the date of birth of the
petitioner as “June 24, 1968” instead of “April 24, 1968.”
- The petitioner has been using the name “Lorena A. Omapas[“] and her date of birth as “April 24,
1968” for as long as she since she could remember and is known to the community in general as
such;
- To sustain petitioner’s claim that the entries in her Certificate of Live Birth pertaining to her first
name and date of birth should be corrected so that it will now read as “LORENA A. OMAPAS”
and “April 24, 1968” respectively,; and
 - This petition is intended neither for the petitioner to escape criminal and/or civil liability, nor
affect the hereditary succession of any person whomsoever but solely for the purpose of setting
the records of herein petitioner straight.

On February 23, 2010, the trial court issued the assailed Decision in favor of Sali. On March 24, 2010, the
Republic, through the Office of the Solicitor General (OSG), appealed the RTC Decision for lack of
jurisdiction on the part of the court a quo because the title of the petition and the order setting the
petition for hearing did not contain Sali’s aliases.

The CA denied the appeal, ruling that: (1) the records are bereft of any indication that Sali is known by a
name other than “Lorena,” hence, it would be absurd to compel her to indicate any other alias that she
does not have; (2) Sali not only complied with the mandatory requirements for an appropriate
adversarial proceeding under Rule 108 of the Rules but also gave the Republic an opportunity to timely
contest the purported defective petition; and (3) the change in the first name of Sali will certainly avoid
further confusion as to her identity and there is no showing that it was sought for a fraudulent purpose
or that it would prejudice public interest.

Issues:  Whether or not the Petition of Lorena Omapas Sali is for a change of name as contemplated
under Rule 103 of the Rules and not for correction of entries under Rule 108. Whether or not the
Regional Trial Ciurt has jurisdiction over the petition.

Ruling: No, the Petition of Lorena Omapas Sali is not for a change of name as contemplated under Rule
103 of the Rules but for correction of entries under Rule 108.What she seeks is the correction of clerical
errors which were committed in the recording of her name and birth date. The Court has held that not
all alterations allowed in one’s name are confined under Rule 103 and that corrections for clerical errors
may be set right under Rule 108. The evidence presented by Sali shows that, since birth, she has been
using the name “Lorena.” Thus, it is apparent that she never had any intention to change her name.

However, at the time Sali’s petition was filed, R.A. No. 9048 was already in effect. Section 1 of the law
states: SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or
Nickname. – No entry in a civil register shall be changed or corrected without a judicial order, except for
clerical or typographical errors and change of first name or nickname which can be corrected or changed
by the concerned city or municipal civil registrar or consul general in accordance with the provisions of
this Act and its implementing rules and regulations.

The petition for change of first name may be allowed, among other grounds, if the new first name has
been habitually and continuously used by the petitioner and he or she has been publicly known by that
first name in the community. The local city or municipal civil registrar or consul general has the primary
jurisdiction to entertain the petition. It is only when such petition is denied that a petitioner may either
appeal to the civil registrar general or file the appropriate petition with the proper court.

In this case, the petition, insofar as it prayed for the change of Sali’s first name, was not within the RTC’s
primary jurisdiction. It was improper because the remedy should have been administrative, i.e., filing of
the petition with the local civil registrar concerned. For failure to exhaust administrative remedies, the
RTC should have dismissed the petition to correct Sali’s first name.
On the other hand, anent Sali’s petition to correct her birth date from “June 24, 1968” to “April 24,
1968,” R.A. No. 9048 is inapplicable. It was only on August 15, 2012 that R.A. No. 10172 was signed into
law amending R.A. No. 9048. As modified, Section 1 now includes the day and month in the date of birth
and sex of a person.

Hence, the petition is PARTIALLY GRANTED. The February 11, 2013 Decision of the Court of Appeals,
which affirmed in toto the February 23, 2010 Decision of the Regional Trial Court, Branch 14, Baybay
City, Leyte, is AFFIRMED WITH MODIFICATION. The Petition for Correction of entry in the certificate of
live birth of dorothy a. omapas with respect to her first name is dismissed without prejudice to its filing
with the local civil registrar concerned.

Take note that there should be notice/summons served to the Civil Registrar and all interested parties

Question: what determines jurisdiction to bind the whole world?

Answer: publication. Since the proceeding is one in rem, there should be publication as provided for by
law.

Purpose of notice and summons is for due process and fair play. Required ang notice and summons not
to acquire jurisdiction but for due process and fair play.

R.A. No. 9048 as amended by R.A. No. 10172

Coverage:
No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or
typographical errors and change of:

a. First name or nickname;

b. The day and month in the date of birth; or
c. Sex of a person

- only when there is patently clear that there was a clerical or typographical error or mistake in the
entry.

Conditions (GROUNDS) for the change of first name:

1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;
2. The new first name or nickname has been habitually and continuously used by the petitioner
and he has been publicly known by that first name or nickname in the community; or
3. The change will avoid confusion.

Supporting documents:

1. A certified true machine copy of the certificate or of the page of the registry book containing the
entry or entries sought to be corrected or changed;
2. At least two (2) public or private documents showing the correct entry or entries upon which
the correction or change shall be based; and
3. Other documents which the petitioner or the city or municipal civil registrar or the consul
general may consider relevant and necessary for the approval of the petition.

- No petition for correction of erroneous entry concerning the date of birth or the sex of a person
shall be entertained except if the petition is accompanied by earliest school record or earliest
school documents such as, but not limited to, medical records, baptismal certificate and other
documents issued by religious authorities; nor shall any entry involving change of gender
corrected except if the petition is accompanied by a certification issued by an accredited
government physician attesting to the fact that the petitioner has not undergone sex change or
sex transplant.

Publication requirement:

The petition for change of first name or nickname, or for correction of erroneous entry concerning the
day and month in the date of birth or the sex of a person, as the case may be, shall be published at least
once a week for two (2) consecutive weeks in a newspaper of general circulation.
Where to file:

The petition and its supporting papers shall be filed in three (3) copies and to be distributed as follows:

- 1st copy to the concerned city or municipal civil registrar [the local civil registrar], or the consul
general;
- Second copy to the office of the civil registrar general; and
- Third copy to the petitioner.

^ the local civil registrar will grant the petition but copy should be furnished also with the office of the
civil registrar general; for appeal, same shall be to the latter