I.
Overview of Special Proceedings
Rule 1, Section 3 (c) A special proceeding is a remedy by which
(c), Rules of Court a party seeks to establish a status, a right, or a
particular fact.
Rule 3, Section 3, Section 3. Representatives as parties. Where
Rules of Court the action is allowed to be prosecuted or
defended by a representative or someone acting
in a fiduciary capacity, the beneficiary shall be
included in the title of the case and shall be
deemed to be the real party in interest. A
representative may be a trustee of an express
trust, a guardian, an executor or administrator,
or a party authorized by law or these Rules. An
agent acting in his own name and for the benefit
of an undisclosed principal may sue or be sued
without joining the principal except when the
contract involves things belonging to the
principal.
Administrative SECTION 35. Powers and Functions.
Code of 1987,
Book IV, Title 3, The Office of the Solicitor General shall
Chapter 12, represent the Government of the Philippines,
Section 35(1) its agencies and instrumentalities and its
officials and agents in any litigation, proceeding,
investigation or matter requiring the services of
a lawyer. When authorized by the President or
head of the office concerned, it shall also
represent government-owned or controlled
corporations. The Office of the Solicitor General
shall constitute the law office of the Government
and, as such, shall discharge duties requiring
the services of a lawyer. It shall have the
following specific powers and functions:
(1) Represent the Government in the Supreme
Court and the Court of Appeals in all criminal
proceedings; represent the Government and its
officers in the Supreme Court, the Court of
Appeals, and all other courts or tribunals in all
civil actions and special proceedings in which
the Government or any officer thereof in his
official capacity is a party.
Rule 72, Rules of Subject Matter and Applicability of General
Court Rules
Section 1. Subject matter of special proceedings.
— Rules of special proceedings are provided for
in the following cases:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of
minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation of correction of entries in the
civil registry.
Section 2. Applicability of rules of civil actions. —
In the absence of special provisions, the rules
provided for in ordinary actions shall be, as far
as practicable, applicable in special proceedings.
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Rule 1.2, Special Rule 1.2. Nature of the proceedings. - All knowledge or based on authentic records, and
Rules of Court on proceedings under the Special ADR Rules are correct of his personal knowledge or based on
Alternative special proceedings. authentic records, and shall contain as annexes
Dispute such documents as may be deemed by the party
Resolution (A.M. court may be decide matters on the basis of
No. 07-11-08-SC) affidavits and other documentary evidence.
Where necessary, the court shall conduct
Rule 3, Section 1, Section 1. Nature of Proceeding - Any proceeding clarificatory hearings before resolving any
Rules of initiated under these Rules shall be considered matter submitted to it for resolution.
Procedure on in rem. Jurisdiction over all persons affected by
Corporate the proceeding shall be considered as acquired ----------------------------------------------------------
Rehabilitation upon publication of the notice of the
(A.M. No. commencement of the proceedings in any A petition for rehabilitation, the procedure for
00-8-10-SC newspaper or general circulation in the which is provided in the Interim Rules of
[2008]), cf. A. M. Philippines in the manner prescribed by these Procedure on Corporate Recovery, should be
No. 00-8-10-SC rules. considered as a special proceeding. It is one
(2001), that seeks to establish the status of a party or a
“Clarification on The proceedings shall also be summary and particular fact. As provided in section 1, Rule 4
the Legal Fees to non-adversarial in nature. The following pleading of the Interim Rules on Corporate Recovery, the
be Collected and are prohibited: status or fact sought to be established is the
the Applicable inability of the corporate debtor to pay its
Period of Appeal (a) Motion to dismiss; debts when they fall due so that a
in Cases Formerly (b) Motion for a bill of particulars: rehabilitation plan, containing the formula for
Cognizable by the (c) Petition for relief; the successful recovery of the corporation, may
Securities and (d) Motion for extension; be approved in the end. It does not seek a relief
Exchange (e) Motion for postponement from an injury caused by another party.
Commission” (f) Third-party complaint;
(g) Intervention; Rule 3, Section Section 1. Nature of the proceedings initiated by
(h) Motion to hear affirmative defenses; and 1(b), Rules on the filing of the Petition for Assistance on the
(I) Any pleading or motion which is similar to or Liquidation of Liquidation (PAL) under these Rules.
of like effect as any of the foregoing. Closed Banks
(A.M. No. a) A proceeding in rem. - Jurisdiction over all
Any pleading, motion, opposition, defense or 19-12-02-SC) persons affected by the proceedings shall be
claim filed by any interested party shall be considered as acquired upon publication of the
supported by verified statements that the affiant order setting the PAL for initial hearing in any
has read same and that the factual allegations newspaper of general circulation in the
therein are true and correct of his personal Philippines in the manner prescribed by these

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Rules.
b) A special proceeding. - It declares the
concomitant rights of the creditors and the order
of payment of their valid claims in the
disposition of the assets of the closed bank.
c) Exclusive jurisdiction. - The Liquidation Court
(LC) shall have exclusive jurisdiction to
adjudicate disputed claims against the closed
bank, assist in the enforcement of individual
liabilities of the stockholders, directors, and
officers, and decide on all other issues as may be
material to implement the Master Liquidation
Plan.
OCA Circular No. ● Uniformity of assessment and collection
48-2020 of docket and other legal fees.
● Petitions for recognition of foreign
judgement shall be considered as a
special proceeding.
FUJIKI V. MARINAY
Facts:
● Fujiki is a Japanese national who married Marinay, a Filipino.
Fujiki could not bring Marinay home to Japan because his
parents did not approve of their marriage. Thus, they lost
contact.
● Marinay married another Japanese citizen, Maekara, without her
marriage with Fujiki being dissolved. However, because of
physical abuse, Marinay parted ways with Maekara.
● Fujiki helped Marinay obtain a judgement from a family court in
Japan declaring her marriage with Maekara void on the ground
of bigamy.
● Fujiki filed a petition for Judicial Recognition of Foreign
Judgement before the RTC. RTC dismissed.
Issue:
● Can a husband of a prior marriage file a petition to recognize a
foreign judgement nullifying the subsequent marriage?
Ruling:
● Yes. Recognition of foreign judgement requires only proof of fact
of the judgement, it may be made in a special proceeding for
cancellation or correction of entries in the civil registry under
Rule 108 of the Rules of Court. Section 1 of the said rule provides
for who may file such a petition.
● Sec. 1: Who may file petition. — Any person interested in any act,
event, order or decree concerning the civil status of persons
which has been recorded in the civil register, may file a verified
petition for the cancellation or correction of any entry relating
thereto, with the Regional Trial Court of the province where the
corresponding civil registry is located.
II. Difference between Special Proceedings and Civil Actions
● According to Rule 1, Section 3(c) of the Rules, the purpose of a
special proceeding is to establish a status, right, or particular
fact. As held early on in Hagans v. Wis lizenus, a "special
proceeding" may be defined as "an application or proceeding to
establish the status or right of a party, or a particular fact." In
special proceedings, the remedy is granted generally upon an
application or motion.
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 ● Hence, the main point of differentiation between a civil action
and a special proceeding is that in the former, a party sues
another for the enforcement or protection of a right which the
party claims he/she is entitled to, such as when a party-litigant
seeks to recover property from another, while in the latter, a
party merely seeks to have a right established in his/her favor.
● Ordinary civil actions for declaration of nullity of a document,
nullity of title, recovery of ownership of real property, or
reconveyance are actions in personam. And thus, they only bind
particular individuals although they concern rights to tangible
things. Any judgment therein is binding only upon the parties
properly impleaded. Hence, any decision in the private
respondents' ordinary civil action would not prejudice
non-parties.
TREYES V. LARLAR (Majority Decision)
Facts:
● Rosie Larlar Treyes (Rosie), the wife of Dr. Nixon Treyes (Dr.
Nixon), died without any children and without a will. Rosie left
behind seven siblings, Antonio, Emilio, Heddy, Rene, Celeste,
Judy, and Yvonne (Larlar, et al.).
● At the time of her death, Rosie owned fourteen (14) real estate
properties with Dr. Nixon as conjugal properties. Subsequently,
Dr. Nixon executed two Affidavits of Self-Adjudication,
transferring the estate of Rosie unto himself, claiming that he
was the sole heir
● Hence, Larlar, et al. filed before the Regional Trial Court (RTC) a
Complaint for annulment of the Affidavits, cancellation of TCTs,
reconveyance of ownership and possession, partition, and
damages.
● Dr. Nixon filed a Motion to Dismiss on the ground, among others,
of lack of jurisdiction over the subject matter and, corollarily,
lack of real parties in interest.
Issue:
● Is a prior determination of the status as a legal or compulsory
heir in a separate special proceeding a prerequisite to an
ordinary civil action for recovery of ownership and possession of
property?
Ruling:
● Restated, the party does not seek to establish his/her right as
an heir because the law itself already establishes that status.
What he/she aims to do is to merely call for the nullification of
a deed, instrument, or conveyance as an enforcement or
protection of that right which he/she already possesses by
virtue of law.
● Subject to the required proof, without any need of prior judicial
determination, Larlar, et al., siblings of Rosie, by operation of law,
are entitled to one-half of the inheritance of the decedent.
● Thus, in filing their Complaint, they do not seek to have their
right as intestate heirs established, for the simple reason that it
is the law that already establishes that right. What they seek is
the enforcement and protection of the right granted to them
under Article 1001 in relation to Article 777 of the Civil Code by
asking for the nullification of the Affidavits of Self-Adjudication
that disregard and violate their right as intestate heirs.
● Unless there is a pending special proceeding for the settlement
of the decedent’s estate or for the determination of heirship, the
compulsory or intestate heirs may commence an ordinary civil
action to declare the nullity of a deed or instrument, and for
recovery of property, or any other action in the enforcement of
their ownership rights acquired by virtue of succession, without
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 the necessity of a prior and separate judicial declaration of their
status as such.

TREYES V. LARLAR (Dissenting Opinion, Leonen)

● The rule that heirship must first be declared in a special

proceeding is not merely so a probate court is given precedence
over a regular court in estate proceedings. Instead, what is
being prevented is the lack of notice an ordinary civil action has
to the entire world as opposed to that of a special proceeding. If
parties institute any ordinary civil action that essentially
declares heirship, anyone outside of this action can simply
contest the ruling, as this is not an action in rem.
● On the contrary, special proceedings are equipped with different
procedures that would make its decision conclusive to all, and
not just to the parties involved. This ensures that the partition of
the decedent's estate would reach a finality.
● Contrary to the majority's assertion, to allow the determination
of heirship in an ordinary civil action would in no way contribute
to judicial economy. Rather, it may potentially begin circuitous
proceedings where, after a trial court declares a decedent's heirs
in an ordinary civil action,: other interested third parties will
contest the decision and eventually elevate the matter to this
Court---only to remand the case to a trial court sitting as a
probate or intestate court to finally settle the question of
heirship and ,estate of the deceased.
○ Special proceedings are actions in rem, binds the whole
world
○ Civil actions are in personam, it binds only the parties to
the case

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III. Special Writs: Habeas Corpus
Rule 102, Rules of Sec. 1. To what habeas corpus extends. -
Court Except as otherwise 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.
Sec. 2. Who may grant the writ. - The writ of
habeas corpus may be granted by the
Supreme Court, or any member thereof, on
any day and at any time, or by the Court of
Appeals or any member thereof in the
instances authorized by law, and if so
granted it shall be enforceable anywhere in
the Philippines, and may be made returnable
before the court or any member thereof, or
before the Court of First Instance (now RTC),
or any judge thereof for the hearing and
decision on the merits. It may also be granted
by a Court of First Instance (RTC), or a judge
thereof, on any day and at any time, and
returnable before himself, enforceable only
within his judicial district.
Sec. 3. Requisites of application therefor. -
Application for the writ shall be by petition
signed and verified either by the party for
whose relief it is intended, or by some person
on his behalf, and shall set forth:
(a) That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty;
(b) The officer or name of the person by whom
he is so imprisoned or restrained; or, if both
are unknown or uncertain, such officer or
person may be described by an assumed
appellation, and the person who is served
with the writ shall be deemed the person
intended;
(c) The place where he is so imprisoned or
restrained, if known;
(d) A copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the efficiency of
the remedy; or, if the imprisonment or
restraint is without any legal authority, such
fact shall appear.
NOTE: There is no need to have a
relationship with the person who was
illegally detained. It states “some person”.
Sec. 7 states you don’t even have to know
the name of the person being illegally
detained.
Sec. 4. When writ not allowed or discharge
authorized. - If it appears that the person
alleged to be restrained of his liberty is in the
custody of an officer under process issued by
a court or judge or by virtue of a judgment or
order of a court of record, and that the court
or judge had jurisdiction to issue the process,
render the judgment, or make the order, the
writ shall not be allowed; or if the jurisdiction
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appears after the writ is allowed, the person
shall not be discharged by reason of any
informality or defect in the process,
judgment, or order. Nor shall anything in this
rule be held to authorize the discharge of a
person charged with or convicted of an
offense in the Philippines, or of a person
suffering imprisonment under lawful
judgment.
Sec. 6. To whom writ directed, and what to
require. - In case of imprisonment or restraint
by an officer, the writ shall be directed to him,
and shall command him to have the body of
the person restrained of his liberty before the
court or judge designated in the writ at the
time and place therein specified. In case of
imprisonment or restraint by a person not an
officer, the writ shall be directed to an officer,
and shall command him to take and have the
body of the person restrained of his liberty
before the court or judge designated in the
writ at the time and place therein specified,
and to summon the person by whom he is
restrained then and there to appear before
said court or judge to show the cause of the
imprisonment or restraint.
Sec. 7. How prisoner designated and writ
served. - The person to be produced should
be designated in the writ by his name, if
known, but if his name is not known he may
be otherwise described or identified. The
writ may be served in any province by the
sheriff or other proper officer, or by a person
deputed by the court or judge. Service of the
writ shall be made by leaving the original
with the person to whom it is directed and
preserving a copy on which to make return of
service. If that person cannot be found, or has
not the prisoner in his custody, then the
service shall be made on any other person
having or exercising such custody.
Sec. 8. How writ executed and returned. - The
officer to whom the writ is directed shall
convey the person so imprisoned or
restrained, and named in the writ, before the
judge allowing the writ, or, in case of his
absence or disability, before some other
judge of the same court, on the day specified
in the writ, unless, from sickness or infirmity
of the person directed to be produced, such
person cannot, without danger, be brought
before the court or judge; and the officer shall
make due return of the writ, together with the
day and the cause of the caption and
restraint of such person according to the
command thereof.
Sec. 9. Defect of form. - No writ of habeas
corpus can be disobeyed for defect of form, if
it sufficiently appears therefrom in whose
custody or under whose restraint the party
imprisoned or restrained is held and the
court or judge before whom he is to be
brought.
Sec. 15. When prisoner discharged if no
appeal. - When the court or judge has
examined into the cause of caption and
restraint of the prisoner, and is satisfied that
he is unlawfully imprisoned or restrained, he
shall forthwith order his discharge from
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 confinement, but such discharge shall not be
effective until a copy of the order has been
served on the officer or person detaining the
prisoner. If the officer or person detaining
the prisoner does not desire to appeal, the
prisoner shall be forthwith released.
B.P. 129, Section 21(1) Section 21. Original jurisdiction in other
cases. – Regional Trial Courts shall exercise
original jurisdiction:
(1) In the issuance of writs of certiorari,
prohibition, mandamus, quo warranto,
habeas corpus and injunction which may be
enforced in any part of their respective
regions; and
NOTE: The wording for RTC jurisdiction is
“region”, as compared to Sec. 2, Rule 102,
which states “judicial district”.
This means that WHC is enforceable within
the region.
If you don’t lnow where the person is being
held, don’t file it in RTC because it is only
applicable in a judicial region.
Rule 41, Section 3, SEC. 3. Period of ordinary appeal; appeal in
Rules of Court (as habeas corpus cases. — The appeal shall be
amended by A.M. No.
taken within fifteen (15) days from notice
01-1-03-SC)
of the judgment or final order appealed
from. Where a record on appeal is required,
the appellant shall file a notice of appeal
and a record on appeal within thirty (30)
days from notice of the judgment or final
order.
However, an appeal in habeas corpus
cases shall be taken within forty-eight
(48) hours from notice of the judgment or
final order appealed from.
The period of appeal shall be interrupted by
a timely motion for new trial or
reconsideration. No motion for extension of
time to file a motion for new trial or
reconsideration shall be allowed. (n)
The amendment shall take effect on 15 July,
2001 following the publication of this
Resolution in two (2) newspapers of
general circulation not later than 30 June
2001.
Caballes v. Court of Appeals, G.R. No. 163108, 23 February 2005
DOCTRINE: Habeas corpus is not the proper remedy to assail the trial
court’s denial of petitioner’s motion to dismiss the case, the denial of
bail, as well as the voluntary inhibition of Judge Laurea. It is a special
proceeding seeking the enforcement of civil rights. IT is not meant to
inquire into a criminal act subject of a complaint, but into the right of
liberty, notwithstanding the act and the immediate purpose to be served
is relief from illegal restraint.
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NOTE: HABEAS CORPUS is a summary proceeding, and similar to a
proceeding in rem. It is an action upon the jailer, and not upon the
prisoner who seeks relief.
It is not in the nature of a writ of error , not a mode to substitute
judgment.
Facts:
● Glenn Chua, petitioner, was charged with rape of a minor, which
is a non-bailable offense, and was detained. The trial kept
getting rescheduled because Dr. Marquez’s (a witness declared
by the prosecution) presence couldn’t be secured.
● The petitioner objected and invoked their right to a speedy trial. .
The trial was reset where the petitioner’s petition for bail was
denied.
● The original judge, Judge Laurea, inhibited himself from the case
to avoid being misunderstood (for allowing prosecution to
reschedule the pre-trial over and over again)
● The case was re-raffled to the court of Judge Antonio. Petitioner
filed an MR on the judge’s order but the same was denied. The
petitioner’s motion to dismiss was denied.
● The petitioner then filed a Petition for Habeas Corpus and/or
Certiorari and Prohibition with the CA. He averred that (a) he was
deprived of his constitutional right to a speedy trial; (b) Judge
Laurea erred in inhibiting himself from the case; (c) trial court
committed grave abuse of its discretion in denying his petition
for bail; and (d) Judge Antonion had prejudiced the case against
him.
Issue:
● Is Habeas Corpus the proper remedy?
Ruling:
● The SC agreed with the CA’s assessment that habeas corpus is
not the proper remedy to assail the trial court’s denial of
petitioner’s motion to dismiss the case, the denial of bail, as
well as the voluntary inhibition of Judge Laurea. The Court talked
about the nature of habeas corpus. They stated that it is a
special proceeding seeking the enforcement of civil rights. IT is
not meant to inquire into a criminal act subject of a complaint,
but into the right of liberty, notwithstanding the act and the
immediate purpose to be served is relief from illegal restraint.
When a prisoner petitioner petitions for a writ of habeas corpus,
he thereby commences a suit and prosecutes a case in trial.
● Habeas corpus is also 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 his
statements final.
● It is not a relief on the person held, but against the holder’s
unlawful authority.
○ Whether the person detaining has the authority to do
so.
Adonis v. Tesoro, G.R. No. 182855, 5 June 2013
DOCTRINE: The ultimate purpose of a writ of habeas corpus is to relieve
a person from unlawful restraint. It exists as a speedy remedy to help
relieve people from unlawful restraint and a defense of personal
freedom.
This writ is issued only for the purpose of obtaining relief for those
illegally confined or imprisoned without sufficient legal basis, not when
the person is in custody because of a judicial process or valid judgment.
NOTE: What do you think factored in for them to petition to the SC if
they knew where the detained people were?
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 ● The people/groups involved want to generate more attention
to the case.
● The goal is not only to have the body produced, but because
of the issues involved, they went to the SC because it gets
more attention to the case.
Facts:
● Adonis (represented by the organization) was convicted for Libel,
which was a case filed against him by Nograles. A second libel
case was filed against him by Leuterio and was pending before
the RTC.
● On December 2007, the Board of Pardons and Parole issued an
order stating Adonis will be discharged, and will take effect on
May 2008.
● January of 2008, an Admin Circular was released: “Guidelines in
the Observance of a Rule of Preference in the Imposition of
Penalties in Libel Cases.”. This lef adonis to file a motion to
reopen the case, praying for immediate release.
● The motion was granted and he was allowed to post bail, the
Court issued an order directing to release Adonis “unless he is
being held for some other crimes or offenses”. The order was
served, but Adonis was not released.
● This led to the instant petition for issuance of a writ of habeas
corpus alleging his liberty was restrained for no valid reason.
Issue:
● Whether the Writ of Habeas Corpus should be issued
Ruling:
● NO. The ultimate purpose of a writ of habeas corpus is to relieve
a person from unlawful restraint. It exists as a speedy remedy to
help relieve people from unlawful restraint and a defense of
personal freedom. This writ is issued only for the purpose of
obtaining relief for those illegally confined or imprisoned
without sufficient legal basis, not when the person is in custody
because of a judicial process or valid judgment.
● In this case, Adonis was convicted for libel. Because his
detention was by virtue of a final judgment, he is not entitled to
the writ of habeas corpus.
● The court emphasized that although he can be released on
parole, the pendency of another criminal case is a ground for
disqualification from being released on parole.
● The pending libel case was sufficient basis for the denial of the
immediate release at the time.
Boac, et al. v. Cadapan and Empeño, G.R. Nos. 184461-62, 31 May 2011
DOCTRINE: Since the right to life, liberty and security of a person is at
stake, the proceedings should not be delayed and execution of any
decision thereon must be expedited as soon as possible since any form
of delay, even for a day, may jeopardize the very rights that these writs
seek to immediately protect. Summary proceedings, it bears emphasis,
are immediately executory without prejudice to further appeals that
may be taken therefrom.
There is no need for a motion for execution.
NOTE: Cadapan family et al filed with CA because they didn’t know
the whereabouts of those that were detained. It was established that
they were being moved around. It would’ve been ineffective if filed
with RTC.
If a petition is filed with SC or CA, where is it returnable?
● Returnable to the RTC for holding of hearing and decision on
the merits
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If issued by SC, returnable before the SC or any SC justice. If issued
by CA, returnable before CA/any CA justice. SC or CA can make the
writ returnable in an RTC
If issued by RTC, returnable before the RTC judge who issued the writ.
Facts:
● Sherlyn Cadapan, Karen and Merino were abducted from a house
in Bulacan and were herded onto a jeep (bearing the plate
number RTF 597) that sped towards an undisclosed location.
● Sps. Cadapan and Empeño (parents of Sherlyn and Cadapan)
filed a petition for habeas corpus, impleading Generals Tolentino
and Palparan, Lt. Col. Boac, Enriquez, and Lt. Mirabelle as
respondents. The SC issued a writ of habeas corpus, returnable
to the Presiding Justice of the CA.
● By return of the writ, respondents denied that Cadapan, Karen
and Merino were in military custody. They allege that they do not
know the persons, likewise, their subordinates, and that they do
not own or possess a jeep with plate number RTF 597.
● CA dismissed the habeas corpus, but petitioners filed an MR to
present newly discovered evidence.
● During the pendency of the MR, Cadapan and Empeno filed a
Petition for Writ of Amparo before the SC. SC ordered the
consolidation of the amparo petition with the pending habeas
corpus petition
● CA granted the MR and ordered the immediate release of
Sherlyn, Karen, and Merino.
● Erlinda Cadapan and Concepcion Empeño filed before the
appellate court a Motion to Cite Respondents in Contempt of
Court for failure of the respondents in the amparo and habeas
corpus cases to comply with the directive of the CA to
immediately release the three missing persons.
● CA denied the motion, arguing that the decision is not ipso facto
executory.
Issue:
● Whether there is a need to file a motion for execution to cause
the release of the aggrieved parties?
Ruling:
● NO. Since the right to life, liberty and security of a person is at
stake, the proceedings should not be delayed and execution of
any decision thereon must be expedited as soon as possible
since any form of delay, even for a day, may jeopardize the very
rights that these writs seek to immediately protect.
● The CA ruling that the decision is not immediately executory
defeats the very purpose of having summary proceedings in
amparo petitions (or habeas corpus petitions). Summary
proceedings, it bears emphasis, are immediately executory
without prejudice to further appeals that may be taken
therefrom.
● The Rules of Court only find suppletory application in an amparo
(or habeas corpus) proceeding if the Rules strengthen, rather
than weaken, the procedural efficacy of the writ. As it is, the Rule
dispenses with dilatory motions in view of the urgency in
securing the life, liberty or security of the aggrieved party.
Andal v. People of the Philippines, G.R. No. 138268, 26 May 1999
DOCTRINE: The writ of habeas corpus is the proper remedy when;
1. Any person is deprived of his liberty
2. The rightful custody of any person is withheld from the
person entitled thereto
a. Repealed = Special Rule pertaining to minors
3. There has been a deprivation of a constitutional right
resulting in restraint of a person
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 4. The court had no jurisdiction to impose the sentence
5. An excessive penalty has been imposed
Facts:
● Petitioners Jurry Andal, Ricardo Andal and Edwin Mendoza are all
convicted of rape with homicide. They were scheduled for
execution in 1999.
● They filed a writ of habeas corpus on the basis of mistrial. They
claim that the RTC decision should be void.
○ In support of their argument, they claim that the trial
court was ousted of jurisdiction because the pre trial
proceeding of the court was made without the
assistance of counsel without a waiver.
Issue: Whether a petition for a writ of habeas corpus is the proper
remedy to inquire into questions of violations of constitutional rights
of accused.
Ruling: YES. Under Rule 102, Section 1 of the ROC, the writ of habeas
corpus shall extend to all cases of illegal confinement or detention,
wherein any person deprived of his liberty is withheld from the
person entitled.
Furthermore, the writ of habeas corpus may also be availed when;
1. There has been a deprivation of a constitutional right resulting
in restraint of a person
2. The court had no jurisdiction to impose the sentence
3. An excessive penalty has been imposed
However, the Court found that there was no violation of the rights of the
accused. The accused were sentenced to death after a fair and equitable
trial.
OCA v. Perello, et al., A.M. No. RTJ-05-1952, 24 December 2008
DOCTRINE:
Facts:
● Petitioner conducted an audit which reports irregularities in the
disposition of petitions for habeas corpus. The audit team
reported that there were several substantive and procedural
lapses.
● OCA found that Judge Perello should be found guilty for gross
negligence of the law and be suspended for 3 months.
● Judge Perello contends that the prisoners released were
convicted under the old law (R.A. No. 6425) and not under the
new law (R.A. No. 9165). The old law imposes the penalty of life
imprisonment to death regardless of the amount of drugs
involved.
● In citing People v. Simon, she insisted that the maximum
imposable penalty under the old law where the quantity of the
drugs involved in 750 grams or less is 6 months only. She claims
that this would be more favorable to the accused.
● Thus, she ordered the release of the prisoners involved because
they had already served 2 years of imprisonment.
Issue: Whether Judge Perello should be liable for the irregularities in the
petitions for habeas corpus
Ruling: Yes. Judge Perello is guilty for ignorance of the law and for abuse
of discretion.
(1) On the release of the prisoners being improper
The court agrees that R.A. No. 9165 cannot retroactively apply to the
prisoners. However, nowhere in People v. Simon was it held that the
maximum penalty shall be 6 months where the quantity is less than 750
grams.
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Judge Perello only considered the minimum period of prision
correccional in granting the writs of habeas corpus. This is incorrect
because the petition for habeas corpus cannot be granted if the accused
has only served the minimum of his sentence as he must serve his
sentence up to its maximum term.
(2) On the requirement of a copy of commitment or cause of
detention in the application for a writ of habeas corpus
Furthermore, Judge Perello granted the writ of habeas corpus even
without the copies of detention and judgement of conviction. Section
3(d) of Rule 102 of the ROC requires that a copy of the commitment or
cause of detention must accompany the application for the writ of
habeas corpus.
Under Section 3(d) of Rule 102 of the ROC:
● Sec. 3. Requisites of application of writ of habeas corpus. -
Application for the writ shall be by petition signed and verified either
by the party for whose relief it is intended, of by some person in his
behalf, and shall set forth;
○ (d) a copy of the commitment or cause of detention of
such person, if it can be procured without impairing the
efficiency of the remedy.
Marcos v. Farinas, et al., G.R. No. 232395, 3 July 2018
DOCTRINE: Illegal Detention = illegal restriction of movement/action
Petition for habeas corpus becomes moot and academic when the
detainees are already released from detention
Facts:
● Petitioners Agcaoili, Gaor, Calajate and others are all employees
of the Provincial Government of Ilocos Norte. Co-petitioner Imee
Marcos was the incumbent Governor of the Province of Ilocos
Norte during this time.
● Respondent Farinas issued a House Resolution directing an
inquiry in aid of legislation pertaining to the use by the
Provincial Government of Ilocos Norte of its shares from the
excise taxes on locally manufactured virginia type cigarettes for
a purpose other than that provided for by R.A. No 7171.
● During the hearing, the petitioners asked them about
anomalous transactions, However, the petitioners were evasive
to answer.
● The House Committee cited the petitioners in contempt and
detained them.
● The next day, petitioners filed a petition for habeas corpus
against respondent House before the CA. CA issued an order of
release upon bond.
● During the hearing, the House Committee voted to issue a show
cause order against the three Justices of the CA.
● While the habeas corpus petition was pending, Marcos filed an
Omnibus petition praying that the SC assume jurisdiction over
the Habeas Corpus case.
Issue:
1) Whether the Omnibus Petition seeking release of the petitioners
from detention was rendered moot by their subsequent release
from detention
2) Whether the SC can assume jurisdiction over Habeas Corpus
petitions
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In the Matter of the Petition for Writ of Amparo and Writ of Habeas
Corpus in Favor of Alicia Jasper S. Lucena Vs. Sarah Elago, et al., G.R.
No. 252120, 15 September 2020
DOCTRINE: The writ of Habeas corpus is a remedy applicable to cases of
illegal confinement or detention where a person is deprived of liberty, or
the rightful custody is withheld from the person entitled.
The remedy of amparo is confined to instances of extralegal killings or
enforced disappearances and threats thereof. In addition, Anakbayan
and its officers are not agents acting on behalf of the state.
NOTE: Fits the second scenario described in section 1 “or by which the
rightful custody of any person is withheld from the person entitled thereto.”
When minors are involved, there are special rules. However, before this
special rule, Rule 102 was used by parents for custody of their children.
When parents split up, and parents don’t get along. So when 1 parent
hides the child, habeas corpus can be used to seek court assistance.
Facts:
● Alicia Lucena enrolled in FEU as grade 11 student, and was
enticed to join the Anakbayan FEU chapter, and became a
member
● AJ left her family home, never returned, and dropped out of FEU
because she was campaigning for Kabataan partylist and was
joining other recruitment activities.
● The senate conducted a hearing due to reports of Anakbayan
recruiting students and inducing them to abandon their homes.
Representatives from Kabataan, Bayan Muna, ACT Teachers, and
Gabriela conducted a press conference with AJ explaining she
was never abducted but joined voluntarily
● The parents instituted the present petition for the issuance of a
writ of amparo and habeas corpus.
● They concede that AJ is already at the age of majority, but argue
that her decision to stay with Anakbayan did not emanate from
valid and informed consent because it was a product of
radicalization and indoctrination when she was still a minor.
Issue:
● Whether the Writ of Habeas Corpus should be issued
Ruling:
● NO. The writ of Habeas corpus is a remedy applicable to cases of
illegal confinement or detention where a person is deprived of
liberty, or the rightful custody is withheld from the person
entitled.
● In this case, it did not appear that AJ was deprived of liberty or
that petitioner parents were excluded from rightful custody.
● Petitioner parents failed to make their case that AJ is detained
or kept by Anakbayan against her will. There was no accusation
that they employed violence, force, or threat against AJ, nor was
any employed to prevent her from changing her mind and
leaving.
● AJ was already at the age of majority. This choice has to be
respected, or else AJ’s personal liberty would be trampled – the very
freedom that these writs aim to protect. → issue of deprivation of
liberty
● These writs were never meant to temper the brashness of youth
Issue:
1. Whether the Writ of Amparo should be issued
2. Issue of deprivation of liberty
Ruling:
(1)
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● NO. The remedy of amparo is confined to instances of extralegal
killings or enforced disappearances and threats thereof.
● AJ’s situation does not qualify as actual or threatened enforced
disappearance or extralegal killing.
● It must be emphasized that AJ is not missing. Her whereabouts
are determinable . In addition, Anakbayan and its officers are not
agents acting on behalf of the state.

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 IV. Special Writs: Writ of Amparo
Rule on the Writ of Amparo (A.M. No. 07-9-12-SC as amended)
SECTION 1. Petition. – The petition for a writ of amparo 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 official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof.
SEC. 2. Who May File. – The petition may be filed by the aggrieved party or
by any qualified person or entity in the following order:
Any member of the immediate family, namely: the spouse, children and
parents of the aggrieved party;
Any ascendant, descendant or collateral relative of the aggrieved party
within the fourth civil degree of consanguinity or affinity, in default of
those mentioned in the preceding paragraph; or
Any concerned citizen, organization, association or institution, if there is
no known member of the immediate family or relative of the aggrieved
party.
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.
SEC. 3. Where to File. – The petition may be filed on any day and at any
time with the Regional Trial Court of the place where the threat, act or
omission was committed or any of its elements occurred, or with the
Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice
of such courts. The writ shall be enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge thereof, the writ shall
be returnable before such court or judge.
When issued by the Sandiganbayan or the Court of Appeals or any of
their justices, it may be returnable before such court or any justice
thereof, or to any Regional Trial Court of the place where the threat, act or
omission was committed or any of its elements occurred.
When issued by the Supreme Court or any of its justices, it may be
returnable before such Court or any justice thereof, or before the
Sandiganbayan or the Court of Appeals or any of their justices, or to any
Regional Trial Court of the place where the threat, act or omission was
committed or any of its elements occurred.
SEC. 4. No Docket Fees. – The petitioner shall be exempted from the
payment of the docket and other lawful fees when filing the petition. The
court, justice or judge shall docket the petition and act upon it
immediately.
SEC. 5. Contents of Petition. – The petition shall be signed and verified
and shall allege the following:
The personal circumstances of the petitioner;
The name and personal circumstances of the respondent responsible
for the threat, act or omission, or, if the name is unknown or uncertain,
the respondent may be described by an assumed appellation;
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The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the
respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or
individuals, as well as the manner and conduct of the investigation,
together with any report;
The actions and recourses taken by the petitioner to determine the fate
or whereabouts of the aggrieved party and the identity of the person
responsible for the threat, act or omission; and
The relief prayed for.
The petition may include a general prayer for other just and equitable
reliefs.
SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the court,
justice or judge shall immediately order the issuance of the writ if on
its face it ought to issue. The clerk of court shall issue the writ under
the seal of the court; or in case of urgent necessity, the justice or the
judge may issue the writ under his or her own hand, and may deputize
any officer or person to serve it.
The writ shall also set the date and time for summary hearing of the
petition which shall not be later than seven (7) days from the date of its
issuance.
SEC. 7. Penalty for Refusing to Issue or Serve the Writ. – A clerk of court
who refuses to issue the writ after its allowance, or a deputized person
who refuses to serve the same, shall be punished by the court, justice or
judge for contempt without prejudice to other disciplinary actions.
SEC. 8. How the Writ is Served. – The writ shall be served upon the
respondent by a judicial officer or by a person deputized by the court,
justice or judge who shall retain a copy on which to make a return of
service. In case the writ cannot be served personally on the respondent,
the rules on substituted service shall apply.
SEC. 9. Return; Contents. – Within seventy-two (72) hours after service of
the writ, the respondent shall file a verified written return together with
supporting affidavits which shall, among other things, contain the
following:
The lawful defenses to show that the respondent did not violate or
threaten with violation the right to life, liberty and security of the
aggrieved party, through any act or omission;
The steps or actions taken by the respondent to determine the fate or
whereabouts of the aggrieved party and the person or persons
responsible for the threat, act or omission;
All relevant information in the possession of the respondent pertaining
to the threat, act or omission against the aggrieved party; and
If the respondent is a public official or employee, the return shall further
state the actions that have been or will still be taken:
to verify the identity of the aggrieved party;
to recover and preserve evidence related to the death or disappearance
of the person identified in the petition which may aid in the prosecution
of the person or persons responsible;
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 Intervention;
to identify witnesses and obtain statements from them concerning the Memorandum;
death or disappearance; Motion for reconsideration of interlocutory orders or interim
relief orders; and
to determine the cause, manner, location and time of death or Petition for certiorari, mandamus or prohibition against any
disappearance as well as any pattern or practice that may have brought interlocutory order.
about the death or disappearance;
SEC. 12. Effect of Failure to File Return. — In case the respondent fails to
to identify and apprehend the person or persons involved in the death or file a return, the court, justice or judge shall proceed to hear the petition
disappearance; and ex parte.

to bring the suspected offenders before a competent court. SEC. 13. Summary Hearing. — The hearing on the petition shall be
summary. However, the court, justice or judge may call for a preliminary
The return shall also state other matters relevant to the investigation, conference to simplify the issues and determine the possibility of
its resolution and the prosecution of the case. obtaining stipulations and admissions from the parties.

A general denial of the allegations in the petition shall not be allowed. The hearing shall be from day to day until completed and given the
same priority as petitions for habeas corpus.
SEC. 10. Defenses not Pleaded Deemed Waived. — All defenses shall be
raised in the return, otherwise, they shall be deemed waived. SEC. 14. Interim Reliefs. — Upon filing of the petition or at anytime before
final judgment, the court, justice or judge may grant any of the following
SEC. 11. Prohibited Pleadings and Motions. – The following pleadings and reliefs:
motions are prohibited:
(a) Temporary Protection Order. – The court, justice or judge, upon
Motion to dismiss; motion or motu proprio, may order that the petitioner or the aggrieved
Motion for extension of time to file return, opposition, affidavit, party and any member of the immediate family be protected in a
position paper and other pleadings; government agency or by an accredited person or private institution
Dilatory motion for postponement; capable of keeping and securing their safety. If the petitioner is an
Motion for a bill of particulars; organization, association or institution referred to in Section 3(c) of this
Counterclaim or cross-claim; Rule, the protection may be extended to the officers involved.
Third-party complaint;
Reply; The Supreme Court shall accredit the persons and private institutions
Motion to declare respondent in default; that shall extend temporary protection to the petitioner or the aggrieved

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party and any member of the immediate family, in accordance with
guidelines which it shall issue.
The accredited persons and private institutions shall comply with the
rules and conditions that may be imposed by the court, justice or judge.
(b) Inspection Order. — The court, justice or judge, upon verified motion
and after due hearing, may order any person in possession or control of
a designated land or other property, to permit entry for the purpose of
inspecting, measuring, surveying, or photographing the property or any
relevant object or operation thereon.
The motion shall state in detail the place or places to be inspected. It
shall be supported by affidavits or testimonies of witnesses having
personal knowledge of the enforced disappearance or whereabouts of
the aggrieved party.
If the motion is opposed on the ground of national security or of the
privileged nature of the information, the court, justice or judge may
conduct a hearing in chambers to determine the merit of the opposition.
The movant must show that the inspection order is necessary to
establish the right of the aggrieved party alleged to be threatened or
violated.
The inspection order shall specify the person or persons authorized to
make the inspection and the date, time, place and manner of making
the inspection and may prescribe other conditions to protect the
constitutional rights of all parties. The order shall expire five (5) days
after the date of its issuance, unless extended for justifiable reasons.
(c) Production Order. – The court, justice or judge, upon verified motion
and after due hearing, may order any person in possession, custody or
control of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, or objects in digitized or
electronic form, which constitute or contain evidence relevant to the
petition or the return, to produce and permit their inspection, copying or
photographing by or on behalf of the movant.
The motion may be opposed on the ground of national security or of the
privileged nature of the information, in which case the court, justice or
judge may conduct a hearing in chambers to determine the merit of the
opposition.
The court, justice or judge shall prescribe other conditions to protect the
constitutional rights of all the parties.
(d) Witness Protection Order. – The court, justice or judge, upon motion
or motu proprio, may refer the witnesses to the Department of Justice
for admission to the Witness Protection, Security and Benefit Program,
pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to other
government agencies, or to accredited persons or private institutions
capable of keeping and securing their safety.
SEC. 15. Availability of Interim Reliefs to Respondent. – Upon verified
motion of the respondent and after due hearing, the court, justice or
judge may issue an inspection order or production order under
paragraphs (b) and (c) of the preceding section.
A motion for inspection order under this section shall be supported by
affidavits or testimonies of witnesses having personal knowledge of the
defenses of the respondent.
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SEC. 16. Contempt. – The court, justice or judge may order the respondent
who refuses to make a return, or who makes a false return, or any person
who otherwise disobeys or resists a lawful process or order of the court
to be punished for contempt. The contemnor may be imprisoned or
imposed a fine.
SEC. 17. Burden of Proof and Standard of Diligence Required. – The parties
shall establish their claims by substantial evidence.
The respondent who is a private individual or entity must prove that
ordinary diligence as required by applicable laws, rules and regulations
was observed in the performance of duty.
The respondent who is a public official or employee must prove that
extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed to evade
responsibility or liability.
SEC. 18. Judgment. — The court shall render judgment within ten (10)
days from the time the petition is submitted for decision. If the
allegations in the petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such reliefs as may be
proper and appropriate; otherwise, the privilege shall be denied.
SEC. 19. Appeal. – Any party may appeal from the final judgment or order
to the Supreme Court under Rule 45. The appeal may raise questions of
fact or law or both.
The period of appeal shall be five (5) working days from the date of
notice of the adverse judgment.
The appeal shall be given the same priority as in habeas corpus cases.
SEC. 20. Archiving and Revival of Cases. – The court shall not dismiss the
petition, but shall archive it, if upon its determination it cannot proceed
for a valid cause such as the failure of petitioner or witnesses to appear
due to threats on their lives.
A periodic review of the archived cases shall be made by the amparo
court that shall, motu proprio or upon motion by any party, order their
revival when ready for further proceedings. The petition shall be
dismissed with prejudice upon failure to prosecute the case after the
lapse of two (2) years from notice to the petitioner of the order archiving
the case.
The clerks of court shall submit to the Office of the Court Administrator
a consolidated list of archived cases under this Rule not later than the
first week of January of every year.
SEC. 21. Institution of Separate Actions. — This Rule shall not preclude
the filing of separate criminal, civil or administrative actions.
SEC. 22. Effect of Filing of a Criminal Action. – When a criminal action
has been commenced, no separate petition for the writ shall be filed. The
reliefs under the writ shall be available by motion in the criminal case.
The procedure under this Rule shall govern the disposition of the reliefs
available under the writ of amparo.
SEC. 23. Consolidation. – When a criminal action is filed subsequent to
the filing of a petition for the writ, the latter shall be consolidated with
the criminal action.
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When a criminal action and a separate civil action are filed subsequent
to a petition for a writ of amparo, the latter shall be consolidated with
the criminal action.
After consolidation, the procedure under this Rule shall continue to
apply to the disposition of the reliefs in the petition.
SEC. 24. Substantive Rights. — This Rule shall not diminish, increase or
modify substantive rights recognized and protected by the Constitution.
SEC. 25. Suppletory Application of the Rules of Court. – The Rules of Court
shall apply suppletorily insofar as it is not inconsistent with this Rule.
SEC. 26. Applicability to Pending Cases. – This Rule shall govern cases
involving extralegal killings and enforced disappearances or threats
thereof pending in the trial and appellate courts.
Boac, et al. v. Cadapan and Empeño, G.R. Nos. 184461-62, 31 May 2011
DOCTRINE: There is no need to file a motion for execution for an amparo
decision. Since the right to life, liberty and security of a person is at
stake, the proceedings should not be delayed and execution of any
decision thereon must be expedited as soon as possible since any form
of delay, even for a day, may jeopardize the very rights that these writs
seek to immediately protect.
The respondents did not comply with the decision so the petitioners
filed a motion to cite respondents in contempt of court. The lower court
denied this saying that there is nothing in the rule on the writ of amparo
which states that a decision rendered is immediately executory. SC said
the CA was wrong. The CA ruling that the decision is not immediately
executory defeats the very purpose of having summary proceedings in
amparo petitions (or habeas corpus petitions). Summary proceedings, it
bears emphasis, are immediately executory without prejudice to further
appeals that may be taken therefrom
Marcos v. Fariñas, et al., G.R. No. 232395, 3 July 2018
DOCTRINE: The filing of the petition for the issuance of a writ of Amparo
before this Court while the Habeas Corpus Petition before the CA was
still pending is improper.
Thus, while there is no procedural and legal obstacle to the joining of a
petition for habeas corpus and a petition for Amparo, the peculiarity of
the then pendency of the Habeas Corpus Petition before the CA renders
the direct resort to this Court for the issuance of a writ of Amparo
inappropriate.
The privilege of the writ of Amparo is confined to instances of extralegal
killings and enforced disappearances, or threats thereof. The writ of
Amparo cannot be issued in cases where the alleged threat has ceased
and is no longer imminent or continuing.
In this case, the alleged unlawful restraint on petitioners' liberty has
effectively ceased upon their subsequent release from detention. On the
other hand, the apprehension of co-petitioner Marcos that she will be
detained is, at best, merely speculative. In other words, co-petitioner
Marcos has failed to show any clear threat to her right to liberty
actionable through a petition for a writ of Amparo.
Razon, et al. v. Tagitis, G.R. No. 182498, 3 December 2009
DOCTRINE: The nature of the Writ of Amparo—a protective remedy
against violations or threats of violation against the rights to life, liberty
and security. It embodies, as a remedy, he court’s directive to police
agencies to undertake specified courses of action to address the
disappearance of an individual, in this case, Engr. Morced N. Tagitis. It
does not determine guilt nor pinpoint criminal culpability for the
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disappearance; rather, it determines responsibility, or at least
accountability, for the enforced disappearance for purposes of imposing
the appropriate remedies to address the disappearance.
The court emphasize that the framers of the Amparo Rule never
intended Section 5(c) of the Rule to be complete in every detail in
stating the threatened or actual violation of a victim’s rights.
As in any other initiatory pleading, the pleader must of course state the
ultimate facts constituting the cause of action, omitting the evidentiary
details. In an Amparo petition, however, this requirement must be read
in light of the nature and purpose of the proceeding, which addresses a
situation of uncertainty; hence the one filing the petition may not be
able to describe with certainty how the victim exactly disappeared, or
who actually acted to kidnap, abduct or arrest him or her, or where the
victim is detained, because these information may purposely be hidden
or covered up by those who caused the disappearance.
in court proceedings) reveals the clear intent of the framers of the
Amparo Rule to have it become similar to an administrative proceeding.
We must observe flexibility in considering the evidence we shall take
into account. The fair and proper rule, to our mind, is to consider all the
pieces of evidence adduced in their totality, and to consider any
evidence otherwise inadmissible under our usual rules to be admissible
if it is consistent with the admissible evidence adduced. In other words,
we reduce our rules to the most basic test of reason—i.e., to the
relevance of the evidence to the issue at hand and its consistency with
all other pieces of adduced evidence. Thus, even hearsay evidence can
be admitted if it satisfies this basic minimum test.
Thus, in these proceedings, the Amparo petitioner needs only to properly
comply with the substance and form requirements of a Writ of Amparo
petition, as discussed above, and prove the allegations by substantial
evidence.

To read the Rules of Court requirement on pleadings while addressing De Lima, et al. v. Gatdula, G.R. No. 204528, 19 February 2013
the unique Amparo situation, the test in reading the petition should be DOCTRINE: A petition for review on certiorari under Rule 45 is not the
to determine whether it contains the details available to the one filing proper remedy in assailing a decision regarding the writ of amparo. The
the petition under the circumstances, WHILE presenting a cause of “decision” of the RTC, granting the Writ of Amparo, is not the judgment
action showing a violation of the victim’s rights to life, liberty and or final order contemplated under this rule.
security through State or private party action.
SEC. 6. Issuance of the Writ. – SEC. 18. Judgment. — The court
The petition should likewise be read in its totality, to determine if the Upon the filing of the petition, the shall render judgment within ten
required elements-–-namely, of the disappearance, the State or private court, justice or judge shall (10) days from the time the
action, and the actual or threatened violations of the rights to life, liberty immediately order the issuance petition is submitted for
or security-–- are present. of the writ if on its face it ought decision. If the allegations in the
to issue. The clerk of court shall petition are proven by substantial
The characteristics an amparo proceeding of being summary and of the issue the writ under the seal of evidence, the court shall grant
the court; or in case of urgent the privilege of the writ and such
use of substantial evidence as the required level of proof (in contrast to
necessity, the justice or the judge reliefs as may be proper and
the usual preponderance of evidence or proof beyond reasonable doubt

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may issue the writ under his or
her own hand, and may deputize
any officer or person to serve it.
The writ shall also set the date
and time for summary hearing of
the petition which shall not be
later than seven (7) days from the
date of its issuance.
The “decision” of the RTC,
granting the Writ of Amparo, is
not the judgment or final order
contemplated under this
rule.
appropriate; otherwise, the
privilege shall be denied.
After the hearing, the court will
render the judgment within 10
days from the time the petition is
submitted for decision.
If the allegations are proven with
substantial evidence, the court
shall grant the privilege of the
writ and such reliefs as may be
proper and appropriate. The
judgment should contain
measures which the judge views
as essential for the continued
protection of the petitioner. These
measures must be detailed
enough so that the judge may be
able to verify and monitor the
actions taken by the respondents.
It is this judgment that could be
subject to appeal to the
Supreme Court via Rule 45. After
the measures have served their
purpose, the judgment will be
satisfied. In Amparo cases, this is
when the threats to the
petitioner’s life, liberty and
security cease to exist, as
evaluated by the court that
renders the judgment.
In this case, this is the judgment
that the petitioners were
questioning. The Supreme Court
ruled that a decision under this
Section cannot be assailed using
Rule 45.
Castillo, et al. v. Cruz, et al., G.R. No. 182165, 25 November 2009
DOCTRINE: Evidently, the present controversy arose out of a property
dispute between the Provincial Government and respondents Absent
any considerable nexus between the acts complained of and its effect
on respondents’; right to life, liberty and security, the Court will NOT
DELVE on the propriety of petitioners’; entry into the property.
The writ of Amparo is NOT writ to protect concerns that are purely
property or commercial. Neither is it a writ that we shall issue on
amorphous and uncertain grounds. (Tapuz v Del Rosario)
Furthermore, the petition of the respondents DID NOT SHOW any actual
violation, imminent or continuing threat to their life, liberty and security.
The respondents merely sought the protection of their property rights as
stated in their joint affidavit “Wala kaming nagawa ipagtanggol ang
aming karapatan sa lupa na 45 years naming “IN POSSESSION”
Tapuz, et al. v. Del Rosario, et al., G.R. No. 182484, 17 June 2008
DOCTRINE:
Purpose of Writ of Amparo:
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 1) It is intended to address violations of or threats to the rights to
life, liberty or security
2) The writ of amparo was originally conceived as a response to the
extraordinary rise in the number of killings and enforced
disappearances, and to the perceived lack of available and
effective remedies to address these extraordinary concerns.
THE WRIT OF AMPARO IS NOT: is a writ to protect concerns that are purely
property or commercial. Neither is it a writ that we shall issue on
amorphous and uncertain grounds.
In Re: Rodriguez, G.R. No. 191805, 15 November 2011
DOCTRINE: Provisional reliefs are intended to assist the court before it
arrives at a judicious determination of the amparo Petition. Being
interim reliefs, they can only be granted before a final adjudication of
the case is made. In any case, it must be underscored that the privilege
of the writ of amparo, once granted, necessarily entails the protection of
the aggrieved party. Thus, since the privilege of the writ of amparo was
already granted, there is no need to issue a temporary protection order
independently of Rodriguez. The order restricting respondents from
going near Rodriguez is subsumed under the privilege of the writ.
4) That the intention for such refusal is to remove subject person
from the protection of the law for a prolonged period of time.
The privilege of the writ of amparo is a remedy available to victims of
extra-judicial killings and enforced disappearances or threats of a
similar nature, regardless of whether the perpetrator of the unlawful act
or omission is a public official or employee or a private individual.
In this case, there is not much issue that AJ’s situation does not qualify
either as an actual or threatened enforced disappearance or extralegal
killing.
AJ is not missing. Her whereabouts are determinable. By all accounts,
she is staying with the Anakbayan and its officers which, at least insofar
as AJ’s case is concerned, are not agents or organizations acting on
behalf of the State.

In the Matter of the Petition for Writ of Amparo and Writ of Habeas
Corpus in Favor of Alicia Jasper S. Lucena, G.R. No. 252120, 15
September 2020
DOCTRINE: The elements constituting “enforced disappearance”; are:
1) That there be an arrest, detention, abduction or any form of
deprivation of liberty;
2) That it be carried out by, or with the authorization, support or
acquiescence of, the State or a political organization;
3) That it be followed by the State or political organization’s refusal
to acknowledge or give information on the fate or whereabouts
of the person subject of the amparo petition; and

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 V. Special Writs: Habeas Data
the place where the
data/information is gathered,
Rule on the Writ of Habeas Data (AM No. 08-1-16-SC) collected, stored.
3) Supreme Court, Court of Appeals,
Sandiganbayan when the action
Writ of Habeas Data, A remedy available to any person whose concerns public data files of
defined (Sec. 1) right to privacy in life, liberty or security is government offices.
violated or threatened by an unlawful act or
omission of a public official or employee, or
of a private individual or entity engaged in The petition may be filed with the Regional
the gathering, collecting or storing of data Trial Court where the petitioner or
or information regarding the person, family, respondent resides, or that which has
home and correspondence of the aggrieved jurisdiction over the place where the data
party. (Sec. 1) or information is gathered, collected or
stored, at the option of the petitioner.
Who may file? (Sec. 2) GR: Any aggrieved party may file a petition
for the writ of habeas data.
The petition may also be filed with the
Supreme Court or the Court of Appeals or
However, in cases of extralegal killings and
the Sandiganbayan when the action
enforced disappearances, the petition may
concerns public data files of government
be filed by:
offices.
(a) Any member of the immediate
family of the aggrieved party, When is it returnable 1. When issued by RTC
namely: the spouse, children and (Sec.4) a. Before the same
parents; or judge/court
2. When issued by CA or
(b) Any ascendant, descendant or Sandiganbayan
collateral relative of the aggrieved a. Before the same
party within the fourth civil degree court/judge or
of consanguinity or affinity, in b. Place where petitioner
default of those mentioned in the resides or
preceding paragraph c. Where data is gathered
collected or stored
3. Supreme Court
Where to file? (Sec. 3) 1) RTC where the
a. To any of its justices
petitioner/respondent resides
b. CA
2) Court which has jurisdiction over

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 c. Sandiganbayan
d. RTC where the petitioner
resides
e. Court who has jurisdiction
where data is gathered,
collected and stored.
When the writ is issued by a Regional Trial
Court or any judge thereof, it shall be
returnable before such court or judge.
When issued by the Court of Appeals or the
Sandiganbayan or any of its justices, it may
be returnable before such court or any
justice thereof, or to any Regional Trial
Court of the place where the petitioner or
respondent resides, or that which has
jurisdiction over the place where the data
or information is gathered, collected or
stored.
When issued by the Supreme Court or any
of its justices, it may be returnable before
such Court or any justice thereof, or before
the Court of Appeals or the Sandiganbayan
or any of its justices, or to any Regional
Trial Court of the place where the petitioner
or respondent resides, or that which has
jurisdiction over the place where the data
or information is gathered, collected or
stored.
What is contained in a A verified written petition for a writ of
petition for a Writ of habeas data should contain:
Habeas Data? (Sec. 6)
(a) The personal circumstances of the
petitioner and the respondent;
(b) The manner the right to privacy is
violated or threatened and how it
affects the right to life, liberty or
security of the aggrieved party;
(c) The actions and recourses taken by
the petitioner to secure the data or
information;
(d) The location of the files, registers or
databases, the government office,
and the person in charge, in
possession or in control of the data
or information, if known;
(e) The reliefs prayed for, which may
include the updating, rectification,
suppression or destruction of the
database or information or files
kept by the respondent.
In case of threats, the relief may include a
prayer for an order enjoining the act
complained of; and
(f) Such other relevant reliefs that are
just and equitable.
Issuance of the writ Upon the filing of the petition, the court,
(Sec. 7) justice or judge shall immediately order the
issuance of the writ if on its face it ought to
issue. The clerk of court shall issue the writ
under the seal of the court and cause it to
be served within three (3) days from the
issuance; or, in case of urgent necessity,
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 the justice or judge may issue the writ
under his or her own hand, and may
deputize any officer or person serve it.
The writ shall also set the date and time for
summary hearing of the petition which
shall not be later than ten (10) work days
from the date of its issuance.
Penalty when clerk of A clerk of court who refuses to issue the
court refuses to issue writ after its allowance, or a deputized
the writ after its person who refuses to serve the same, shall
allowance (Sec. 8) be punished by the court, justice or judge
for contempt without prejudice to other
disciplinary actions.
How is the Writ The writ shall be served upon the
served? (Sec. 9) respondent by a judicial officer or by a
person deputized by the court, justice or
judge who shall retain a copy on which to
make a return of service. In case the writ
cannot be served personally on the
respondent, the rules on substituted
service shall apply.
Contents of Return The respondent shall file a verified written
(Sec. 10) return together with supporting affidavits
within five (5) working days from service of
the writ, which period may be reasonably
extended by the Court for justifiable
reasons. The return shall, among other
things, contain the following:
(a) The lawful defenses such as
national security, state secrets,
privileged communications,
confidentiality of the source of
information of media and others;
(b) In case of respondent in charge, in
possession or in control of the data
or information subject of the
petition;
(i) a disclosure of the data or
information about the
petitioner, the nature of
such data or information,
and the purpose for its
collection;
(ii) the steps or actions taken
by the respondent to
ensure the security and
confidentiality of the data
or information; and,
(iii) the currency and accuracy
of the data or information
held; and,
(c) Other allegations relevant to the
resolution of the proceeding. A general
denial of the allegations in the petition
shall not be allowed.
Defenses against writ A hearing in chambers may be conducted
of habeas data (Sec. where the respondent invokes the defense
12) that the release of the data or information
in question shall compromise national
security or state secrets, or when the data
or information cannot be divulged to the
public due to its nature or privileged
character.
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Prohibited Pleadings (a) Motion to dismiss; (Sec. 15) summary. However, the court, justice or
and Motions. (Sec. 13) judge may call for a preliminary conference
(b) Motion for extension of time to file to simplify the issues and determine the
return, opposition, affidavit, position paper possibility of obtaining stipulations and
and other pleadings; admissions from the parties.

(c) Dilatory motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
Judgement (Sec. 16) The court shall render judgment within ten
(10) days from the time the petition is
submitted for decision. If the allegations in
the petition are proven by substantial
evidence, the court shall enjoin the act
complained of, or order the deletion,
destruction, or rectification of the
erroneous data or information and grant
other relevant reliefs as may be just and
equitable; otherwise, the privilege of the
writ shall be denied.

(i) Intervention; Upon its finality, the judgment shall be

enforced by the sheriff or any lawful officers
(j) Memorandum; as may be designated by the court, justice
or judge within five (5) working days.
(k) Motion for reconsideration of
interlocutory orders or interim relief orders; Return of Service (Sec. The officer who executed the final
and 17) judgment shall, within three (3) days from
its enforcement, make a verified return to
(l) Petition for certiorari, mandamus or the court. The return shall contain a full
prohibition against any interlocutory order statement of the proceedings under the
writ and a complete inventory of the
Filing of return (Sec. In case the respondent fails to file a return, database or information, or documents and
14) the court, justice or judge shall proceed to articles inspected, updated, rectified, or
hear the petition ex parte, granting the deleted, with copies served on the
petitioner such relief as the petition may petitioner and the respondent.
warrant unless the court in its discretion
requires the petitioner to submit evidence. The officer shall state in the return how the
judgment was enforced and complied with
Summary Hearing The hearing on the petition shall be by the respondent, as well as all objections

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 of the parties regarding the manner and
regularity of the service of the writ.
Appeal (Sec. 19) Any party may appeal from the final
judgment or order to the Supreme Court
under Rule 45. The appeal may raise
questions of fact or law or both.
The period of appeal shall be five (5)
working days from the date of notice of the
judgment or final order.
The appeal shall be given the same priority
as in habeas corpus and amparo cases.
Consolidation (Sec. 21) When a criminal action is filed subsequent
to the filing of a petition for the writ, the
latter shall be consolidated with the
criminal action.
When a criminal action and a separate civil
action are filed subsequent to a petition for
a writ of habeas data, the petition shall be
consolidated with the criminal action.
After consolidation, the procedure under
this Rule shall continue to govern the
disposition of the reliefs in the petition.
Effect of filing a When a criminal action has been
criminal action (Sec. commenced, no separate petition for the
22) writ shall be filed. The relief under the writ
shall be available to an aggrieved party by
motion in the criminal case.
The procedure under this Rule shall govern
the disposition of the reliefs available
under the writ of habeas data.
Castillo, et al. v. Cruz, et al., G.R. No. 182165, 25 November 2009
DOCTRINE: The coverage of the Writs of Amparo and Habeas Data is
limited to the protection of rights to life, liberty and security. And the
writs cover not only actual but also threats of unlawful acts or
omissions.
Petitions for writs of amparo and habeas data are extraordinary
remedies which cannot be used as tools to stall the execution of a final
and executory decision in a property dispute.
Tapuz, et al. v. Del Rosario, et al., G.R. No. 182484, 17 June 2008
DOCTRINE:
Section 6 of the Rule on the Writ of Habeas Data requires the following
material allegations of ultimate facts in a petition for the issuance of a
writ of habeas data:
(a) The personal circumstances of the petitioner and the
respondent;
(b) The manner the right to privacy is violated or threatened and
how it affects the right to life, liberty or security of the aggrieved
party;
(c) The actions and recourses taken by the petitioner to secure the
data or information;
(d) The location of the files, registers or databases, the government
office, and the person in charge, in possession or in control of
the data or information, if known;
(e) The reliefs prayed for, which may include the updating,
rectification, suppression or destruction of the database or
information or files kept by the respondent.
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In case of threats, the relief may include a prayer for an order enjoining
the act complained of; and
(f) Such other relevant reliefs as are just and equitable."
In Re: Rodriguez, G.R. No. 191805, 15 November 2011
DOCTRINE: Temporary protection order and inspection order are already
included in the writ of amparo and habeas data. Thus, there is already
no need to issue the protection and inspection orders since both are
subsumed in the special writs.
Lee v. Ilagan, G.R. No. 203254, 8 October 2014
DOCTRINE: The petition for habeas data must adequately show that
there exists a nexus between the right to privacy on the one hand, and
the right to life, liberty or security on the other. The allegations in the
petition must be supported by substantial evidence showing an actual
or threatened violation of the right to privacy in life, liberty or security of
the victim.
MERALCO, et al. v. Lim, G.R. No. 184769, 5 October 2010
DOCTRINE: The habeas data rule, in general, is designed to protect by
means of judicial complaint the image, privacy, honor, information, and
freedom of information of an individual. It is meant to provide a forum
to enforce one’s right to the truth and to informational privacy, thus
safeguarding the constitutional guarantees of a person’s right to life,
liberty and security against abuse in this age of information technology.
The writs of amparo and habeas data will NOT issue to protect purely
property or commercial concerns nor when the grounds invoked in
support of the petitions therefor are vague or doubtful. Employment
constitutes a property right under the context of the due process clause
of the Constitution.
Vivares, et al. v. St. Theresa's College, et al., G.R. No. 202666, 29
September 2014
DOCTRINE:
The writ of habeas data is not only confined to cases of extralegal
killings and enforced disappearances.
The writ of habeas data can be availed of as an independent remedy to
enforce one’s right to privacy, more specifically the right to
informational privacy. The remedies against the violation of such right
can include the updating, rectification, suppression or destruction of
the database or information or files in possession or in control of
respondents.
Meaning of “engaged” in the gathering, collecting or storing of data or
information
To “engage” in something is different from undertaking a business
endeavor. To “engage” means “to do or take part in something.” It does
not necessarily mean that the activity must be done in pursuit of a
business. What matters is that the person or entity must be gathering,
collecting or storing said data or information about the aggrieved party
or his or her family.
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 VI. Custody and Guardianship
constituting deprivation of
custody; and
Rule on Custody of Minors and Writ of Habeas Corpus in Relation to
Custody of Minors (A.M. No. 03-04-04-SC) (d) Such other matters which are
relevant to the custody of the
minor.
Applicability (Sec. 1) This rule shall apply to petitions for
custody of minors and writs of habeas The verified petition shall be
corpus in relation thereto. accompanied by a certificate against
forum shopping, which the petitioner
The Rules of Court shall apply must sign personally.
suppletorily.
Summons; personal If the court is satisfied that the petition is
Petition for custody of A verified petition for the rightful custody service on respondent sufficient in form and substance, it shall
minors; who may file of a minor may be filed by any person (Sec. 5) direct the clerk of court to issue
(Sec. 2) claiming such right. The party against summons, which shall be served together
whom it may be filed shall be designated with a copy of the petition personally on
as the respondent. the respondent.

Where to file petition The petition for custody of minors shall Motion to Dismiss (Sec. A motion to dismiss the petition is not
(Sec. 3) be filed with the Family Court of the 6) allowed except on the ground of lack of
province or city where the petitioner jurisdiction over the subject matter or
resides or where the minor may be found. over the parties. Any other ground that
might warrant the dismissal of the
Contents of petition The verified petition shall allege the petition may be raised as an affirmative
(Sec. 4) following: defense in the answer.

(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
Verified Answer (Sec. 7) The respondent shall file an answer to the
petition, personally verified by him,
within 5 days after service of summons
and a copy of the petition.
Notice of mandatory Within 15 days after the filing of the
pre-trial (Sec. 9) 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

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 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 notice of its order shall be served
separately on both the parties and their
respective counsels. The pre-trial is
mandatory.
Contents of pre-trial The pre-trial brief shall contain the
brief (Sec. 10) 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.
Effect of failure to (a) If the petitioner fails to appear
appear at the pre-trial personally at the pre-trial, the
(Sec. 11) 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.
What may be done at At the pre-trial, the parties may agree on
pre-trial (Sec. 12) 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
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 the pre-trial conference, on which
occasion it shall consider such other
matters as may aid in the prompt
disposition of the petition.
Provisional order After an answer has been filed or after
awarding custody (Sec. expiration of the period to file it, the court
13) 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) (f) Any other person or institution
the court may deem suitable to
provide proper care and guidance
for the minor.
Factors to consider in In awarding custody, the court shall
determining custody consider the best interests of the minor
(Sec. 14) 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:
(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
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 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.
Temporary visitation The court shall provide in its order
rights (Sec. 15) 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.
Hold Departure Order The minor child subject of the petition
(Sec. 16) 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.
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 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.
Protection Order (Sec. The court may issue a Protection Order
17) 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
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 protection of the minor.
Judgment (Sec. 18) 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.
Appeal (Sec. 19) No appeal from the decision shall be
allowed unless the appellant has filed a
motion for reconsideration or new trial
within 15 days from notice of judgment.
An aggrieved party may appeal from the
decision 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.
Petition for writ of A verified petition for a writ of habeas
habeas corpus (Sec. 20) 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
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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.
Confidentiality of The hearings on custody of minors may,
proceedings (Sec. 21) 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.
Thornton v. Thornton, G.R. No. 154598, 16 August 2004
DOCTRINE: The family courts have concurrent jurisdiction with the
Court of Appeals and the Supreme Court in petitions for habeas corpus
where the custody of minors is at issue.
Reyes-Tabujara v. Court of Appeals, G.R. No. 172813, 20 July 2006
DOCTRINE:
1. RTC, SC and CA have concurrent jurisdiction over habeas
corpus cases. Despite the passage of RA 8369 — the law
conferring upon family courts the exclusive jurisdiction over
habeas corpus cases, both the SC and the CA still retain their
jurisdiction over habeas corpus cases.
a. Rationale: Individuals who do not know the whereabouts
of minors they are looking for would be helpless since
they cannot seek redress from family courts whose writs
are enforceable only in their respective territorial
jurisdictions. Thus, if a minor is being transferred from
one place to another, which seems to be the case here,
the petitioner in a habeas corpus case will be left
without legal remedy.
2. Jurisdiction once acquired by a court is not lost upon the
instance of the parties but continues until the case is
terminated.
a. Application: As the Petition for Habeas Corpus was filed
by petitioner before the RTC, the latter has acquired
jurisdiction over the petition to the exclusion of all
others. To hold otherwise would be to risk instances
where courts of concurrent jurisdiction might have
conflicting orders.
Tujan-Militante v. Cada-Deapera, G.R. No. 210636, 28 July 2014
DOCTRINE: Sec. 20 applies when petitions for a writ of habeas corpus
involves the custody of minors.
GR: A verified petition for a writ of habeas corpus involving custody
of minors shall be filed with the Family Court
EXP:
1. The petition may be filed with the regular courts
a. In the absence of the judge of the Family Court
b. In places where there are no Family Courts
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 2. The petition may also be filed with the Supreme Court, Court of
Appeals, or with any of its members.
Furthermore, the writ shall be enforceable in the judicial region where
they belong
Rules 92–97, Rules of Court
RULE 92
Venue
Section 1. Where to institute proceedings. — Guardianship of a person
or estate of a minor or incompetent may be instituted in the Court of
First Instance of the province, or in the justice of the peace court of the
municipality, or in the municipal court chartered city where the minor or
incompetent persons resides, and if he resides in a foreign country, in
the Court of First Instance of the province wherein his property or the
party thereof is situated; provided, however, that where the value of the
property of such minor or incompetent exceeds that jurisdiction of the
justice of the peace or municipal court, the proceedings shall be
instituted in the Court of First Instance.
In the City of Manila the proceedings shall be instituted in the Juvenile
and Domestic Relations Court.
Section 2. Meaning of word "incompetent." — Under this rule, the word
"incompetent" includes persons suffering the penalty of civil
interdiction or who are hospitalized lepers, prodigals, deaf and dumb
who are unable to read and write, those who are of unsound mind, even
though they have lucid intervals, and persons not being of unsound
mind, but by reason of age, disease, weak mind, and other similar
causes, cannot, without outside aid, take care of themselves and
manage their property, becoming thereby an easy prey for deceit and
exploitation.
Section 3. Transfer of venue. — The court taking cognizance of a
guardianship proceeding, may transfer the same to the court of another
province or municipality wherein the ward has acquired real property, if
he has transferred thereto his bona-fide residence, and the latter court
shall have full jurisdiction to continue the proceedings, without
requiring payment of additional court fees.
RULE 93
Appointment of Guardians
Section 1. Who may petition for appointment of guardian for resident.
— Any relative, friend, or other person on behalf of a resident minor or
incompetent who has no parent or lawful guardian, or the minor himself
if fourteen years of age or over, may petition the court having
jurisdiction for the appointment of a general guardian for the person or
estate, or both, of such minor or incompetent. An officer of the Federal
Administration of the United States in the Philippines may also file a
petition in favor of a ward thereof, and the Director of Health, in favor of
an insane person who should be hospitalized, or in favor of an isolated
leper.
Section 2. Contents of petition. — A petition for the appointment of a
general guardian must show, so far as known to the petitioner:
(a) The jurisdiction facts;
(b) The minority or incompetency rendering the appointment
necessary or convenient;
(c) The names, ages, and residence of the relatives of the minor or
incompetent, and of the person having him in their care;
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 (d) The probable value and character of his estate;
(e) The name of the person for whom letters of guardianship.
The petition shall be verified; but no defect in the petition or verification
shall render void the issuance of letters of guardianship.
Section 3. Court to set time for hearing. Notice thereof. — When a
petition for the appointment of a general guardian is filed, the court
shall fix a time and place for hearing the same, and shall cause
reasonable notice thereof to be given to the persons mentioned in the
petition residing in the province, including the minor if above 14 years of
age or the incompetent himself, and may direct other general or special
notice thereof to be given.
Section 4. Opposition to petition. — Any interested person may, by filing
a written opposition, contest the petition on the ground of majority of
the alleged minor, competency of the alleged incompetent, or the
insuitability of the person for whom letters are prayed, and may pray
that the petition be dismissed, or that letters of guardianship issue to
himself, or to any suitable person named in the opposition.
Section 5. Hearing and order for letters to issue. — At the hearing of
the petition the alleged in competent must be present if able to attend,
and it must be shown that the required notice has been given.
Thereupon the courts shall hear the evidence of the parties in support of
their respective allegations, and, if the person in question is a minor, or
incompetent it shall be appoint a suitable guardian of his person or
estate, or both, with the powers and duties hereinafter specified.
Section 6. When and how guardian for non-resident appointed.
Notice. — When a person liable to be put under guardianship resides
without the Philippines but the estate therein, any relative or friend of
such person, or any one interested in his estate, in expectancy or
otherwise, may petition a court having jurisdiction for the appointment
of a guardian for the estate, and if, after notice given to such person and
in such manner as the court deems proper, by publication or otherwise,
and hearing, the court is satisfied that such non-resident is a minor or
incompetent rendering a guardian necessary or convenient, it may
appoint a guardian for such estate.
Section 7. Parents as guardians. — When the property of the child under
parental authority is worth two thousand pesos or less, the father of the
mother, without the necessity of court appointment, shall be his legal
guardian. When the property of the child is worth more than two
thousand pesos, the father or the mother shall be considered guardian
of the child's property, with the duties and obligations of guardians
under this rules, and shall file the petition required by Section 2 hereof.
For good reasons the court may, however, appoint another suitable
person.
Section 8. Service of judgment. — Final orders or judgments under this
rule shall be served upon the civil registrar of the municipality or city
where the minor or incompetent person resides or where his property or
part thereof is situated.
RULE 94
Bonds of Guardians
Section 1. Bond to be given before issuance of letters. Amount.
Condition. — Before a guardian appointed enters upon the execution of
his trust, or letters of guardianship issue, he shall give a bond, in such
sum as the court directs, conditioned as follows:
(a) To make and return to the court, within three (3) months, a true
and complete inventory of all the estate, real and personal, of his
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 ward which shall come to his possession or knowledge of any
other person for him;
(b) To faithfully execute the duties of his trust, to manage and
dispose of the estate according to these rules for the best
interests of the ward, and to provide for the proper care, custody,
and education of the ward;
(c) To render a true and just account of all the estate of the ward in
his hands, and of all proceeds or interest derived therefrom, and
of the management and disposition of the same, at the time
designated by these rules and such other times as the courts
directs, and at the expiration of his trust to settle his accounts
with the court and deliver and pay over all the estate, effects,
and moneys remaining in his hands, or due from him on such
settlement, to the person lawfully entitled thereto;
(d) To perform all orders of the court by him to be performed.
Section 2. When new bond may be required and old sureties
discharged. — Whenever it is deemed necessary, the court may require a
new bond to be given by the guardian, and may discharge the sureties
on the old bond from further liability, after due notice to interested
persons, when no injury can result therefrom to those interested in the
estate.
Section 3. Bonds to be filed. Actions thereon. — Every bond given by a
guardian shall be filed in the office of the clerk of the court, and, in case
of the breach of a condition thereof, may be prosecuted in the same
proceeding or in a separate action for the use and benefit of the ward or
of any other person legally interested in the estate.
RULE 95
Selling and Encumbering Property of Ward
Section 1. Petition of guardian for leave to sell or encumber estate. —
When the income of the estate under guardianship is insufficient to
maintain the ward and his family, or to maintain and educate the ward
when a minor, or when it appears that it is for the benefit of the ward
that his real estate or some part thereof be sold, or mortgaged or
otherwise encumbered, and the proceeds thereof put out at interest, or
invested in some productive security, or in the improvement or security
or other real estate of the ward, the guardian may present a verified
petition to the court by which he was appointed setting forth such facts,
and praying that an order issue authorizing the sale or encumbrance.
Section 2. Order to show cause thereupon. — If it seems probable that
such sale or encumbrance is necessary, or would be beneficial to the
ward, the court shall make an order directing the next of kin of the ward,
and all persons interested in the estate, to appear at a reasonable time
and place therein specified to show cause why the prayer of the petition
should not be granted.
Section 3. Hearing on return of order. Costs. — At the time and place
designated in the order to show cause, the court shall hear the proofs
and allegations of the petitioner and next of kin, and other persons
interested, together with their witnesses, and grant and refuse the
prayer of the petition as the best interest of the ward require. The court
shall make such order as to cost of the hearing as may be just.
Section 4. Contents of order for sale or encumbrance, and how long
effective. Bond. — If, after full examination, it appears that it is
necessary, or would be beneficial to the ward, to sell or encumber the
estate, or some portion of it, the court shall order such sale or
encumbrance and that the proceeds thereof be expended for the
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maintenance of the ward and his family, or the education of the ward, if
a minor, or for the putting of the same interest, or the investment of the
same as the circumstances may require. The order shall specify the
causes why the sale or encumbrance is necessary or beneficial, and may
direct that estate ordered sold be disposed of at either public or private
sale, subject to such conditions as to the time and manner of payment,
and security where a part of the payment is deferred as in the discretion
of the court are deemed most beneficial to the ward. The original bond of
the guardian shall stand as security for the proper appropriation of the
proceeds of the sale, but the judge may, if deemed expedient, require an
additional bond as a condition for the granting of the order of sale. No
order of sale granted in pursuance of this section shall continue in force
more than one (1) year after granting the same, without a sale being had.
Section 5. Court may order investment of proceeds and direct
management of estate. — The court may authorize and require the
guardian to invest the proceeds of sales or encumbrances, and any
other of his ward's money in his hands, in real estate or otherwise, as
shall be for the best interest of all concerned, and may make such other
orders for the management, investment, and disposition of the estate
and effects, as circumstances may require.
RULE 96
General Powers and Duties of Guardians
Section 1. To what guardianship shall extend. — A guardian appointed
shall have the care and custody of the person of his ward, and the
management of his estate, or the management of the estate only, as the
case may be. The guardian of the estate of a non-resident shall have the
management of all the estate of the ward within the Philippines, and no
court other than that in which such guardian was appointed shall have
jurisdiction over the guardianship.
Section 2. Guardian to pay debts of ward. — Every guardian must pay
the ward's just debts out of his personal estate and the income of his
real estate, if sufficient; if not, then out of his real estate upon obtaining
an order for the sale or encumbrance thereof.
Section 3. Guardian to settle accounts, collect debts, and appear in
actions for ward. — A guardian must settle all accounts of his ward, and
demand, sue for, and receive all debts due him, or may, with the
approval of the court, compound for the same and give discharges to the
debtor, on receiving a fair and just dividend of the estate and effects;
and he shall appear for and represent his ward in all actions and special
proceedings, unless another person be appointed for that purpose.
Section 4. Estate to be managed frugally, and proceeds applied to
maintenance of ward. — A guardian must manage the estate of his
ward frugally and without the waste, and apply the income and profits
thereof, so far as may be necessary, to the comfortable and suitable
maintenance of the ward and his family, if there be any; and if such
income and profits be insufficient for that purpose, the guardian may
sell or encumber the real estate, upon being authorized by order so to
do, and apply to such of the proceeds as may be necessary to such
maintenance.
Section 5. Guardian may be authorized to join in partition
proceedings after hearing. — The court may authorized the guardian to
join in an assent to a partition of real or personal estate held by the ward
jointly or in common with others, but such authority shall only be
granted after hearing, upon such notice to relatives of the ward as the
court may direct, and a careful investigation as to the necessity and
propriety of the proposed action.
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Section 6. Proceedings when the person suspected of embezzling or
concealing property of ward. — Upon complaint of the guardian or ward,
or of any person having actual or prospective interest in the estate of the
ward as creditor, heir, or otherwise, that anyone is suspected of having
embezzled, concealed, or conveyed away any money, goods, or interest,
or a written instrument, belonging to the ward or his estate, the court
may cite the suspected person to appear for examination touching such
money, goods, interest, or instrument, and make such orders as will
secure the estate against such embezzlement, concealment or
conveyance.
Section 7. Inventories and accounts of guardians, and appraisement
of estates. — A guardian must render to the court an inventory of the
estate of his ward within three (3) months after his appointment, and
annually after such appointment an inventory and account, the
rendition of any of which may be compelled upon the application of an
interested person. Such inventories and accounts shall be sworn to by
the guardian. All the estate of the ward described in the first inventory
shall be appraised. In the appraisement the court may request the
assistance of one or more of the inheritance tax appraisers. And
whenever any property of the ward not included in an inventory already
rendered is discovered, or succeeded to, or acquired by the ward, like
proceedings shall be had for securing an inventory and appraisement
thereof within three (3) months after such discovery, succession, or
acquisition.
Section 8. When guardian's accounts presented for settlement.
Expenses and compensation allowed. — Upon the expiration of a year
from the time of his appointment, and as often thereafter as may be
required, a guardian must present his account to the court for
settlement and allowance. In the settlement of the account, the
guardian, other than a parent, shall be allowed the amount of his
reasonable expenses incurred in the execution of his trust and also
such compensation for his services as the court deems just, not
exceeding fifteen per centum of the net income of the ward.
RULE 97
Termination of Guardianship
Section 1. Petition that competency of ward be adjudged, and
proceedings thereupon. — A person who has been declared
incompetent for any reason, or his guardian, relative, or friend, may
petition the court to have his present competency judicially determined.
The petition shall be verified by oath, and shall state that such person is
then competent. Upon receiving the petition, the court shall fix a time
for hearing the questions raised thereby, and cause reasonable notice
thereof to be given to the guardian of the person so declared
incompetent, and to the ward. On the trial, the guardian or relatives of
the ward, and, in the discretion of the court, any other person, may
contest the right to the relief demanded, and witnesses may be called
and examined by the parties or by the court on its own motion. If it be
found that the person is no longer incompetent, his competency shall
be adjudged and the guardianship shall cease.
Section 2. When the guardian removed or allowed to resign. New
appointment. — When a guardian becomes insane or otherwise
incapable of discharging his trust or unsuitable therefor, or has wasted
or mismanaged the estate, or failed for thirty (30) days after it is due to
render an account or make a return, the court may, upon reasonable
notice to the guardian, remove him, and compel him to surrender the
estate of the ward to the person found to be lawfully entitled thereto. A
guardian may resign when it appears proper to allow the same; and
upon his resignation or removal the court may appoint another in his
place.
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Section 3. Other termination of guardianship. — The marriage or
voluntary emancipation of a minor ward terminates the guardianship of
the person of the ward, and shall enable the minor to administer his
property as though he were of age, but he cannot borrow the money or
alienate or encumber real property without the consent of his father or
mother, or guardian. He can sue and be sued in court only with the
assistance of his father, mother or guardian. The guardian of any person
may be discharged by the court when it appears, upon the application of
the ward or otherwise, that the guardianship is no longer necessary.
Section 4. Record to be kept by the justice of the peace or municipal
judge. — When a justice of the peace or municipal court takes
cognizance of the proceedings in pursuance of the provisions of these
rules, the record of the proceedings shall be kept as in the Court of First
Instance.
Section 5. Service of judgment. — Final orders of judgments under this
rule shall be served upon the civil registrar of the municipality or city
where the minor or incompetent person resides or where his property or
part thereof is situated.
Rule on Guardianship of Minors (A.M. No. 03-02-05 SC)
RULE ON GUARDIANSHIP OF MINORS
Section 1. Applicability of the Rule. – This Rule shall apply to petitions
for guardianship over the person or property, or both, of a minor. chan
robles virtual law library
The father and the mother shall jointly exercise legal guardianship over
the person and property of their unemancipated common child without
the necessity of a court appointment. In such case, this Rule shall be
suppletory to the provisions of the Family Code on guardianship.
Sec. 2. Who may petition for appointment of guardian. – On grounds
authorized by law, any relative or other person on behalf of a minor, or
the minor himself if fourteen years of age or over, may petition the
Family Court for the appointment of a general guardian over the person
or property, or both, of such minor. The petition may also be filed by the
Secretary of Social Welfare and Development and by the Secretary of
Health in the case of an insane minor who needs to be hospitalized.
Sec. 3. Where to file petition. – A petition for guardianship over the
person or property, or both, of a minor may be filed in the Family Court of
the province or city where the minor actually resides. If he resides in a
foreign country, the petition shall be flied with the Family Court of the
province or city where his property or any part thereof is situated.
Sec. 4. Grounds of petition. - The grounds for the appointment of a
guardian over the person or property, or both, of a minor are the
following:
(a) death, continued absence, or incapacity of his parents;
(b) suspension, deprivation or termination of parental authority;
(c) remarriage of his surviving parent, if the latter Is found
unsuitable to exercise parental authority; or
(d) when the best interests of the minor so require.
Sec. 5. Qualifications of guardians. – In appointing a guardian, the
court shall consider the guardian’s:
(a) moral character;
(b) physical, mental and psychological condition;
(c) financial status;
(d) relationship of trust with the minor;
(e) availability to exercise the powers and duties of a guardian for
the full period of the guardianship;
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 (f) lack of conflict of interest with the minor; and
(g) ability to manage the property of the minor.
Sec. 6. Who may be appointed guardian of the person or property, or
both, of a minor. – In default of parents or a court-appointed guardian,
the court may appoint a guardian of the person or property, or both, of a
minor, observing as far as practicable, the following order of preference:
(a) the surviving grandparent and In case several grandparents
survive, the court shall select any of them taking Into account
all relevant considerations;
(b) the oldest brother or sister of the minor over twenty-one years of
age, unless unfit or disqualified;
(c) the actual custodian of the minor over twenty-one years of age,
unless unfit or disqualified; and
(d) any other person, who in the sound discretion of the court,
would serve the best interests of the minor.
Sec. 7. Contents of petition. – A petition for the appointment of a
general guardian must allege the following:
(a) The jurisdictional facts
(b) The name, age and residence of the prospective ward;
(c) The ground rendering the appointment necessary or convenient;
(d) The death of the parents of the minor or the termination,
deprivation or suspension of their parental authority
(e) The remarriage of the minor’s surviving parent;
(f) The names, ages, and residences of relatives within the 4th civil
degree of the minor, and of persons having him in their care and
custody;
(g) The probable value, character and location of the property of the
minor; and
(h) The name, age and residence of the person for whom letters of
guardianship are prayed.
The petition shall be verified and accompanied by a certification against
forum shopping. However, no defect in the petition or verification shall
render void the issuance of letters of guardianship.
Sec. 8. Time and notice of hearing. – When a petition for the
appointment of a general guardian is filed, the court shall fix a time and
place for its hearing, and shall cause reasonable notice to be given to
the persons mentioned in the petition, including the minor if he is
fourteen years of age or over, and may direct other general or special
notice to be given.
Sec. 9. Case study report. – The court shall order a social worker to
conduct a case study of the minor and all the prospective guardians and
submit his report and recommendation to the court for its guidance
before the scheduled hearing. The social worker may intervene on behalf
of the minor if he finds that the petition for guardianship should be
denied.
Sec. 10. Opposition to petition. – Any interested person may contest the
petition by filing a written opposition based on such grounds as the
majority of the minor or the unsuitability of the person for whom letters
are prayed, and pray that the petition be denied, or that letters of
guardianship issue to himself, or to any suitable person named in the
opposition.
Sec. 11. Hearing and order for letters to issue. – At the hearing of the
petition, it must be shown that the requirement of notice has been
complied with. The prospective ward shall be presented to the court. The
court shall hear the evidence of the parties in support of their respective
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allegations. If warranted, the court shall appoint a suitable guardian of
the person or property, or both, of the minor.
At the discretion of the court, the hearing on guardianship may be
closed to the public and the records of the case shall not be released
without its approval.
Sec. 12. When and how a guardian of the property for non-resident
minor is appointed; notice. – When the minor resides outside the
Philippines but has property in the Philippines, any relative or friend of
such minor, or any one interested in his property, in expectancy or
otherwise, may petition the Family Court for the appointment of a
guardian over the property.
Notice of hearing of the petition shall be given to the minor by
publication or any other means as the court may deem proper. The court
may dispense with the presence of the non-resident minor.
If after hearing the court is satisfied that such non-resident is a minor
and a guardian is necessary or convenient, it may appoint a guardian
over his property.
Sec. 13. Service of final and executory judgment or order. – The final
and executory judgment or order shall be served upon the Local Civil
Registrar of the municipality or city where the minor resides and the
Register of Deeds of the place where his property or part thereof is
situated shall annotate the same in the corresponding title, and report
to the court his compliance within 15 days from receipt of the order.
Sec. 14. Bond of guardian; amount; conditions. - Before he enters upon
the execution of his trust, or letters of guardianship issue, an appointed
guardian may be required to post a bond in such sum as the court shall
determine and conditioned as follows:
(a) To make and return to the court, within three months after the
issuance of his letters of guardianship, a true and complete
Inventory of all the property, real and personal, of his ward which
shall come to his possession or knowledge or to the possession
or knowledge of any other person in his behalf;
(b) To faithfully execute the duties of his trust, to manage and
dispose of the property according to this rule for the best
interests of the ward, and to provide for his proper care, custody
and education;
(c) To render a true and Just account of all the property of the ward
in his hands, and of all proceeds or interest derived therefrom,
and of the management and disposition of the same, at the
time designated by this rule and such other times as the court
directs; and at the expiration of his trust, to settle his accounts
with the court and deliver and pay over all the property, effects,
and monies remaining in his hands, or due from him on such
settlement, to the person lawfully entitled thereto; and
(d) To perform all orders of the court and such other duties as may
be required by law.
Sec. 15. Where to file the bond; action thereon. – The bond posted by a
guardian shall be filed in the Family Court and, In case of breach of any
of its conditions, the guardian may be prosecuted in the same
proceeding for the benefit of the ward or of any other person legally
interested in the property.
Whenever necessary, the court may require the guardian to post a new
bond and may discharge from further liability the sureties on the old
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bond after due notice to interested persons, if no injury may result
therefrom to those interested in the property.
Sec. 16. Bond of parents as guardians of property of minor. – If the
market value of the property or the annual Income of the child exceeds
P50,000.00, the parent concerned shall furnish a bond In such amount
as the court may determine, but in no case less than 10 per centum of
the value of such property or annual income, to guarantee the
performance of the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the Family
Court of the place where the child resides or, if the child resides in a
foreign country, in the Family Court of the place where the property or
any part thereof is situated.
The petition shall be docketed as a summary special proceeding In
which all incidents and issues regarding the performance of the
obligations of a general guardian shall be heard and resolved.
Sec. 17. General duties of guardian. – A guardian shall have the care and
custody of the person of his ward and the management of his property,
or only the management of his property. The guardian of the property of
a nonresident minor shall have the management of all his property
within the Philippines.
A guardian shall perform the following duties:
(a) To pay the just debts of the ward out of the personal property
and the income of the real property of the ward, If the same is
sufficient; otherwise, out of the real property of the ward upon
obtaining an order for its sale or encumbrance;
(b) To settle all accounts of his ward, and demand, sue for, receive
all debts due him, or may, with the approval of the court,
compound for the same and give discharges to the debtor on
receiving a fair and just dividend of the property and effects;
and to appear for and represent the ward in all actions and
special proceedings, unless another person is appointed for that
purpose;
(c) To manage the property of the ward frugally and without waste,
and apply the income and profits thereon, insofar as may be
necessary, to the comfortable and suitable maintenance of the
ward; and if such income and profits be insufficient for that
purpose, to sell or encumber the real or personal property, upon
being authorized by the court to do so;
(d) To consent to a partition of real or personal property owned by
the ward jointly or in common with others upon authority
granted by the court after hearing, notice to relatives of the
ward, and a careful investigation as to the necessity and
propriety of the proposed action;
(e) To submit to the court a verified inventory of the property of his
ward within three months after his appointment, and annually
thereafter, the rendition of which may be required upon the
application of an interested person;
(f) To report to the court any property of the ward not included in
the inventory which is discovered, or succeeded to, or acquired
by the ward within three months after such discovery,
succession, or acquisition; and
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 (g) To render to the court for its approval an accounting of the
property one year from his appointment, and every year
thereafter or as often as may be required.
Sec. 18. Power and duty of the court – The court may:
(a) Request the assistance of one or more commissioners in the
appraisal of the property of the ward reported in the initial and
subsequent inventories;
(b) Authorize reimbursement to the guardian, other than a parent,
of reasonable expenses incurred in the execution of his trust,
and allow payment of compensation for his services as the court
may deem just, not exceeding ten per centum of the net income
of the ward, if any; otherwise, in such amount the court
determines to be a reasonable compensation for his services;
and
(c) Upon complaint of the guardian or ward, or of any person having
actual or prospective interest in the property at the ward, require
any person suspected of having embezzled, concealed, or
disposed of any money, goods or interest, or a written
instrument belonging to the ward or his property to appear for
examination concerning any thereof and issue such orders as
would secure the property against such embezzlement,
concealment or conveyance.
Sec. 19. Petition to sell or encumber property. - When the income of a
property under guardianship is insufficient to maintain and educate the
ward, or when it is for his benefit that his personal or real property or any
part thereof be sold, mortgaged or otherwise encumbered, and the
proceeds invested in safe and productive security, or in the
improvement or security of other real property, the guardian may file a
verified petition setting forth such facts, and praying that an order issue
authorizing the sale or encumbrance of the property.
Sec. 20. Order to show cause. – If the sale or encumbrance is necessary
or would be beneficial to the ward, the court shall order his next of kin
and all person/s interested in the property to appear at a reasonable
time and place therein specified and show cause why the petition
should not be granted.
Sec. 21. Hearing on return of order; costs. – At the time and place
designated in the order to show cause, the court shall hear the
allegations and evidence of the petitioner and next of kin, and other
persons interested, together with their witnesses, and grant or deny the
petition as the best interests of the ward may require.
Sec. 22. Contents of order for sale or encumbrance and its duration;
bond. – If, after full examination, it is necessary, or would be beneficial
to the ward, to sell or encumber the property, or some portion of it, the
court shall order such sale or encumbrance the proceeds of which shall
be expended for the maintenance or the education of the ward, or
invested as the circumstances may require. The order shall specify the
grounds for the sale or encumbrance and may direct that the property
ordered sold be disposed of at public sale, subject to such conditions as
to the time and manner of payment, and security where a part of the
payment is deferred. The original bond of the guardian shall stand as
security for the proper appropriation of the proceeds of the sale or
encumbrance, but the court may, if deemed expedient, require an
additional bond as a condition for the sale or encumbrance. The
authority to sell or encumber shall not extend beyond one year, unless
renewed by the court.
Sec. 23. Court may order investment of proceeds and direct
management of property. – The court may authorize and require the
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guardian to invest the proceeds of sales or encumbrances, and any
other money of his ward in his hands, in real or personal property, for the
best interests of the ward, and may make such other orders for the
management, investment, and disposition of the property and effects,
as circumstances may warrant.
Sec. 24. Grounds for removal or resignation of guardian. – When a
guardian becomes insane or otherwise incapable of discharging his
trust or is found thereafter to be unsuitable, or has wasted or
mismanaged the property of the ward, or has failed to render an account
or make a return for 30 days after it is due, the court may, upon
reasonable notice to the guardian, remove him as such and require him
to surrender the property of the ward to the person found to be lawfully
entitled thereto.
The court may allow the guardian to resign for justifiable causes.
Upon the removal or resignation of the guardian, the court shall appoint
a new one.
No motion for removal or resignation shall be granted unless the
guardian has submitted the proper accounting of the property of the
ward and the court has approved the same.
Sec. 25. Ground for termination of guardianship. – The court motu
proprio or upon verified motion of any person allowed to file a petition
for guardianship may terminate the guardianship on the ground that
the ward has come of age or has died. The guardian shall notify the court
of such fact within 10 days of its occurrence.
Sec. 26. Service of final and executory judgment or order. – The final
and executory judgment or order shall be served upon the Local Civil
Registrar of the municipality or city where the minor resides and the
Register of Deeds of the province or city where his property or any part
thereof is situated. Both the Local Civil Registrar and the Register of
Deeds shall enter the final and executory judgment or order in the
appropriate books in their offices.
Sec. 27. Effect of the rule. – This Rule amends Rules 92 to 97 inclusive of
the Rules of Court on guardianship of minors. Guardianship of
incompetents who are not minors shall continue to be under the
jurisdiction of the regular courts and governed by the Rules of Court.
Article 225, Family Code
Art. 225. The father and the mother shall jointly exercise legal
guardianship over the property of the unemancipated common child
without the necessity of a court appointment. In case of disagreement,
the father’s decision shall prevail, unless there is a judicial order to the
contrary.
Where the market value of the property or the annual income of the child
exceeds P50,000, the parent concerned shall be required to furnish a
bond in such amount as the court may determine, but not less than ten
per centum (10%) of the value of the property or annual income, to
guarantee the performance of the obligations prescribed for general
guardians.
A verified petition for approval of the bond shall be filed in the proper
court of the place where the child resides, or, if the child resides in a
foreign country, in the proper court of the place where the property or
any part thereof is situated.
The petition shall be docketed as a summary special proceeding in
which all incidents and issues regarding the performance of the
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obligations referred to in the second paragraph of this Article shall be
heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except
when the child is under substitute parental authority, or the guardian is
a stranger, or a parent has remarried, in which case the ordinary rules on
guardianship shall apply.
Francisco v. Court of Appeals, G.R. No. L-57438, 3 January 1984
DOCTRINE: In determining the selection of a guardian, the court may
consider the financial situation, the physical condition, the sound
judgment, prudence and trustworthiness, the morals, character and
conduct, and the present and past history of a prospective appointee, as
wen as the probability of his, being able to exercise the powers and
duties of guardian for the full period during which guardianship will be
necessary.
Oropesa v. Oropesa, G.R. No. 184528, 25 April 2012
DOCTRINE: A "finding that a person is incompetent should be anchored
on clear, positive and definite evidence.
Alamayri v. Pabale, G.R. No. 151243, 30 April 2008
DOCTRINE: Sections 2 and 3 of Rule 93 of the Rules of Court require that
the petition contain the names, ages, and residences of relatives of the
minor or incompetent and those having him in their care, so that those
residing within the same province as the minor or incompetent can be
notified of the time and place of the hearing on the petition. The rules do
not necessitate that creditors of the minor or incompetent be identified
and notified.
The issue in a petition for guardianship is whether person was
incompetent at the time of filing of the petition , thus, requiring the
appointment of a guardian.
Caniza v. Court of Appeals, G.R. No. 110427, 24 February 1997
DOCTRINE:
1. A ward has no right to possession or control of his property
during her incompetency.
2. Sec. 4, Rule 96: “A guardian must manage the estate of his
ward frugally and without waste, and apply the income and
profits thereof, so far as maybe necessary, to the comfortable
and suitable maintenance of the ward and his family, if there be
any; and if such income and profits be insufficient for that
purpose, the guardian may sell or encumber the real estate,
upon being authorized by order to do so, and apply to such of the
proceeds as may be necessary to such maintenance."
3. The right to manage the ward’s estate carries with it the right to
take possession thereof and recover it from anyone who retains
it and bring and defend such actions as may be needful for this
purpose.
a. Application: In bringing the action of desahucio (forcible
entry), Amparo Evangelista was merely discharging the
duty to attend to "the comfortable and suitable
maintenance of the ward.”
4. The relationship of guardian and ward is necessarily terminated
by the death of either the guardian or the ward.
a. Application: Despite such, this rule affords no advantage
to the spouses. Evangelista, as niece of Carmen Cañiza,
is one of the latter’s only two (2) surviving heirs, the
other being Cañiza’s nephew, Ramon C. Nevado. The
heirs were allowed to be substituted as parties by the
court. An ejectment case also survives the death of the
party. Thus, as an heir, Evangelista may continue to
represent Caniza even after her death.
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VII. Change of Name and Correction of Entries
Civil Code Articles 376, 407, 408, 412
Article 376. No person can change his name or surname without judicial
authority.
Article 407. Acts, events and judicial decrees concerning the civil status
of persons shall be recorded in the civil register. (325a)
Article 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from
the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name.
Article 412. No entry in a civil register shall be changed or corrected,
without a judicial order.
RULE 103
Change of Name
Section 1. Venue. — A person desiring to change his name shall present
the petition to the Court of First Instance of the province in which he
resides, or, in the City of Manila, to the Juvenile and Domestic Relations
Court.
Section 2. Contents of petition. — A petition for change of name shall be
signed and verified by the person desiring his name changed, or some
other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the
province where the petition is filed for at least three (3) years
prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is
sought;
(c) The name asked for.
Section 3. Order for hearing. — If the petition filed is sufficient in form
and substance, the court, by an order reciting the purpose of the
petition, shall fix a date and place for the hearing thereof, and shall
direct that a copy of the order be published before the hearing at least
once a week for three (3) successive weeks in some newspaper of
general circulation published in the province, as the court shall deem
best. The date set for the hearing shall not be within thirty (30) days
prior to an election nor within four (4) month after the last publication of
the notice.
Section 4. Hearing. — Any interested person may appear at the hearing
and oppose the petition. The Solicitor General or the proper provincial or
city fiscal shall appear on behalf of the Government of the Republic.
Section 5. Judgment. — Upon satisfactory proof in open court on the date
fixed in the order that such order has been published as directed and
that the allegations of the petition are true, the court shall, if proper and
reasonable cause appears for changing the name of the petitioner,
adjudge that such name be changed in accordance with the prayer of
the petition.
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Section 6. Service of judgment. — Judgments or orders rendered in
connection with this rule shall be furnished the civil registrar of the
municipality or city where the court issuing the same is situated, who
shall forthwith enter the same in the civil register.
RULE 108
Cancellation Or Correction Of Entries In The Civil Registry
Section 1. Who may file petition. — Any person interested in any act,
event, order or decree concerning the civil status of persons which has
been recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the Court of
First Instance of the province where the corresponding civil registry is
located.
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: (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.
Section 3. Parties. — When cancellation or correction of an entry in the
civil register is sought, the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made
parties to the proceeding.
Section 4. Notice and publication. — Upon the filing of the petition, the
court shall, by an order, fix the time and place for the hearing of the
same, and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be
published once a week for three (3) consecutive weeks in a newspaper of
general circulation in the province.
Section 5. Opposition. — The civil registrar and any person having or
claiming any interest under the entry whose cancellation or correction is
sought may, within fifteen (15) days from notice of the petition, or from
the last date of publication of such notice, file his opposition thereto.
Section 6. Expediting proceedings. — The court in which the proceeding
is brought may make orders expediting the proceedings, and may also
grant preliminary injunction for the preservation of the rights of the
parties pending such proceedings.
Section 7. Order. — After hearing, the court may either dismiss the
petition or issue an order granting the cancellation or correction prayed
for. In either case, a certified copy of the judgment shall be served upon
the civil registrar concerned who shall annotated the same in his record.
REPUBLIC ACT NO. 9048 March 22, 2001
AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR
THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL
ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME
IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER,
AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL
CODE OF THE PHILIPPINES
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
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general in accordance with the provisions of this Act and its
implementing rules and regulations.
Section 2. Definition of Terms – As used in this Act, the following terms
shall mean:
(1) "City or Municipal civil registrar" refers to the head of the local civil
registry office of the city or municipality, as the case may be, who is
appointed as such by the city or municipal mayor in accordance with
the provisions of existing laws.
(2) "Petitioner" refers to a natural person filing the petition and who has
direct and personal interest in the correction of a clerical or
typographical error in an entry or change of first name or nickname in
the civil register.
(3) "Clerical or typographical error" refers to a mistake committed in the
performance of clerical work in writing, copying, transcribing or typing
an entry in the civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like, which is visible
to the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records: Provided,
however, That no correction must involve the change of nationality, age,
status or sex of the petitioner.
(4) "Civil Register" refers to the various registry books and related
certificates and documents kept in the archives of the local civil registry
offices, Philippine Consulates and of the Office of the Civil Registrar
General.
(5) "Civil registrar general" refers to the Administrator of the National
Statistics Office which is the agency mandated to carry out and
administer the provision of laws on civil registration.
(6) "First name" refers to a name or nickname given to a person which
may consist of one or more names in addition to the middle and last
names.
Section 3. Who May File the Petition and Where. – Any person having
direct and personal interest in the correction of a clerical or
typographical error in an entry and/or change of first name or nickname
in the civil register may file, in person, a verified petition with the local
civil registry office of the city or municipality where the record being
sought to be corrected or changed is kept.
In case the petitioner has already migrated to another place in the
country and it would not be practical for such party, in terms of
transportation expenses, time and effort to appear in person before the
local civil registrar keeping the documents to be corrected or changed,
the petition may be filed, in person, with the local civil registrar of the
place where the interested party is presently residing or domiciled. The
two (2) local civil registrars concerned will then communicate to
facilitate the processing of the petition.
Citizens of the Philippines who are presently residing or domiciled in
foreign countries may file their petition, in person, with the nearest
Philippine Consulates.
The petitions filed with the city or municipal civil registrar or the consul
general shall be processed in accordance with this Act and its
implementing rules and regulations.
All petitions for the clerical or typographical errors and/or change of first
names or nicknames may be availed of only once.
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Section 4. Grounds for Change of First Name or Nickname. – The petition
for change of first name or nickname may be allowed in any of the
following cases:
(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 by that first name or nickname in the community: or
(3) The change will avoid confusion.
Section 5. Form and Contents of the Petition. – The petition shall be in
the form of an affidavit, subscribed and sworn to before any person
authorized by the law to administer oaths. The affidavit shall set forth
facts necessary to establish the merits of the petition and shall show
affirmatively that the petitioner is competent to testify to the matters
stated. The petitioner shall state the particular erroneous entry or
entries, which are sought to be corrected and/or the change sought to
be made.
The petition shall be supported with the following 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.
In case of change of first name or nickname, the petition shall likewise
be supported with the documents mentioned in the immediately
preceding paragraph. In addition, the petition shall be published at least
once a week for two (2) consecutive weeks in a newspaper of general
circulation. Furthermore, the petitioner shall submit a certification from
the appropriate law enforcement agencies that he has no pending case
or no criminal record.
The petition and its supporting papers shall be filed in three (3) copies
to be distributed as follows: first copy to the concerned city or municipal
civil registrar, or the consul general; second copy to the Office of the Civil
Registrar General; and third copy to the petitioner.
Section 6. Duties of the City or Municipal Civil Registrar or the Consul
General. – The city or municipal civil registrar or the consul general to
whom the petition is presented shall examine the petition and its
supporting documents. He shall post the petition in a conspicuous
place provided for that purpose for ten (10) consecutive days after he
finds the petition and its supporting documents sufficient in form and
substance.
The city or municipal civil registrar or the consul general shall act on the
petition and shall render a decision not later than five (5) working days
after the completion of the posting and/or publication requirement. He
shall transmit a copy of his decision together with the records of the
proceedings to the Office of the Civil Registrar General within five (5)
working days from the date of the decision.
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Section 7. Duties and Powers of the Civil Registrar General. – The civil
Why file The person The person The person
registrar general shall, within ten (10) working days from receipt of the (purpose of wants to wants to wants to
decision granting a petition, exercise the power to impugn such remedy) change his or correct change his or
decision by way of an objection based on the following grounds:
surname, or substantial her first name
full name, and errors or cancel or nickname,;
(1) The error is not clerical or typographical;
there is entries in the or wants to
substantial Civil Registry correct clerical
(2) The correction of an entry or entries in the civil register is substantial
change. errors in the
or controversial as it affects the civil status of a person; or
Civil Registry
entries. Date of
(3) The basis used in changing the first name or nickname of a person
birth, gender
does not fall under Section 4.
also.

The civil registrar general shall immediately notify the city or municipal
What can be Surname Substantial First name
civil registrar or the consul general of the action taken on the decision. amended errors or
Upon receipt of the notice thereof, the city or municipal civil registrar or (entries) First name and entries Nickname
the consul general shall notify the petitioner of such action. Surname
Day or month
The petitioner may seek reconsideration with the civil registrar general Middle name of birthdate
or file the appropriate petition with the proper court.
Gender
If the civil registrar general fails to exercise his power to impugn the Clerical errors
decision of the city or municipal civil registrar or of the consul general
within the period prescribed herein, such decision shall become final Where to file RTC of the RTC of the city Local Civil
and executory. (venue/jurisdi province where or province Registry of the
ction) the petitioner where the local city or
Where the petition is denied by the city or municipal civil registrar or the is residing for civil registry is municipality
consul general, the petitioner may either appeal the decision to the civil the past 3 located where the
registrar general or file the appropriate petition with the proper court. years before erroneous
filing the entry or entry
RULE 103 RULE 108 RA 9048 petition. sought to be
changed is

Galicia-Punzal | 2022 | SPECPRO | DR. KHAN

 kept. Error in entry or
change of:
Local Civil - First
Registry of the name
place where - Nickna
the petitioner, me
or interested
party is
currently
DEFINITION OF THE FOLLOWING TERMS:
residing or is
➔ Change: To replace something with something else; to give a
domiciled.
substitute. (Republic v. Gallo)
➔ Correction: To set aright or to remove any fault. (Republic v.
Philippine
Gallo)
Consulate
➔ Cancellation: To erase, or to remove (totally). (Republic v.
Coseteng-Magpayo)
Who can file The person Any person Any person
(petitioner/ap ➔ Clerical: Errors that are visible to the eyes or obvious to the
desiring to interested in having
plicant) understanding, typographical and other innocuous errors. Errors
change his or any: interest:
that are harmless, and innocuous. (Republic v. Gallo)
her name.
➔ Substantial: Not just clerical, these are changes that affect the
- Act Direct; AND
age, civil status, citizenship or nationality. Changes which may
(or some other - Event Personal
affect the civil status from legitimate to illegitimate (Filiation)
person on his - Order
(Republic v. Gallo) (Republic v. Mercadera)
behalf) - Decree Interest in the
correction of
Concerning: error: Alanis v. CA, G.R. No. 216425, 11 Gan v. Republic, G.R. No. 207147,
the civil status November 2020 14 September 2016
of a person - Clerical
In both cases, it involved the change of surname.
which was error
recorded in the - Typogra The difference is that, in Alanis, it involved a legitimate child, while in
entries of the phical Gan it involved an illegitimate child who is not acknowledged by the
Civil registry. error father. The use of the mother’s surname in Alanis was permitted
because he was a legitimate child and had been using said surname
all his life, while in Gan although the illegitimate child who was not

Galicia-Punzal | 2022 | SPECPRO | DR. KHAN


acknowledge was using the surname of the father habitually, it was
not permitted because it will have a substantial effect on her filiation,
which is not in accordance with law.
Silverio v. Republic, G.R. No. Republic v. Cagandahan, G.R.
174689, 22 October 2007 No. 166676, 12 September 2008
In both cases, it involved the change of first name and sex in the civil
registry.
The outcomes were different because in Cagandahan, the person is a
biological and naturally intersex person who chose gender naturally
without any artificial intervention, while in Silverio the petitioner
underwent sex reassignment surgery.
Re: Final Report on the Judicial Audit Conducted at The Regional Trial
Court, Br. 67, Paniqui, Tarlac, Adm. Matter No. 06-7-414-RTC, 19
October 2007
DOCTRINE: Petitions for change of name and correction of entries in the
civil registry are actions in rem, the decision on the petition being
binding not only on the parties thereto but on the whole world. An in rem
proceeding is validated essentially through publication
Contrary to Judge Sotero’s arguments, the obvious effect of R.A. No. 9048
is merely to make possible the administrative correction of clerical or
typographical errors in entries and the administrative change of first
name or nickname in the civil register, leaving to Rule 108 the correction
of substantial changes in the civil registry in appropriate adversarial
proceedings.
Thus, the procedure provided in the Revised Rules of Court for such
petitions remains binding and should be followed by the courts. The
procedural requirements laid down in Rules 103 and 108 still have to be
complied with.
In the case at hand, Judge Sotero should have applied the procedure
prescribed in Rules 103 and 108 in resolving the petitions before him,
not the procedure prescribed in R.A. No. 9048 or the procedure provided
in Section 3, Rule 9 which applies in civil cases where the defendant is
declared in default. Observance of the procedure under R.A. No. 9048
does not excuse Judge Sotero’s blunders. His misapprehension affords
him no justification or extenuation. Moreover, his concern and
compassion for the petitioners are misplaced. As a member of the
bench, he should be equipped with the basic knowledge of rules of
procedure.
In Re: Alfon, G.R. No. L-51201, 29 May 1980
DOCTRINE: Petitioner MARIA Estrella Veronica Primitiva Duterte filed a
petition for change of name with CFI of Rizal, praying that her name
change to Estrella S. Alfon. The only reason why the lower court denied
the petitioner's prayer to change her surname is that as legitimate child
of Filomeno Duterte and Estrella Alfon she should principally use the
surname of her father invoking Art. 364 of the Civil Code
The word "principally" as used in the codal provision is not equivalent to
"exclusively" so that there is no legal obstacle if a legitimate or
legitimated child should choose to use the surname of its mother to
which it is equally entitled. Proper reasonable causes to allow for a
change of name (Haw Liong vs. Republic, G.R. No. L-21194, April 29, 1966):
1) when the name is ridiculous, tainted with dishonor, or is
extremely difficult to write or pronounce;
2) when the request for change is a consequence of a change of
status, such as when a natural child is acknowledged or
legitimated; and
3) when the change is necessary to avoid confusion
Galicia-Punzal | 2022 | SPECPRO | DR. KHAN
 prejudice public interest. The case ta bar falls under none of these
In this case, petitioner has shown that, since childhood, she borne the grounds.
name Estrella S. Alfon although her birth records and baptismal
certificate show otherwise; she was enrolled in the schools from the The court further stated that when it comes to a change in legitimacy,
grades up to college under the name Estrella S. Alfon; all her friends call where the legal status would be affected, strict compliance with Rule
her by this name; she finished her course in Nursing in college and was 108 of the Rules of Court is mandated.
graduated and given a diploma under this name; and she exercised the
right of suffrage likewise under this name. There is therefore ample The present petition must be differentiated from Alfon v. Republic of the
justification to grant fully her petition which is not whimsical but on the Philippines. In Alfon, the Court allowed the therein petitioner, Estrella
contrary is based on a solid and reasonable ground, i.e. to avoid Alfon, to use the name that she had been known since childhood in
confusion. order to avoid confusion. Alfon did not deny her legitimacy, however. She
merely sought to use the surname of her mother which she had been
using since childhood. Ruling in her favor, the Court held that she was
Republic v. Coseteng-Magpayo, G.R. No. 189476, 2 February 2011 lawfully entitled to use her mother’s surname, adding that the
DOCTRINE: Private respondent, Julian Edward Emerson Coseteng avoidance of confusion was justification enough to allow her to do so. In
Magpayo, son of Fulvio M. Magpayo Jr. and Anna Dominique the present case, however, respondent denies his legitimacy.
Marquez-Lim Coseteng, filed a petition to change his name to Julian
Edward Emerson Marquez Lim Coseteng with the RTC. He alleged that Republic v. Mercadera, G.R. No. 186027, 8 December 2010
his parents were never married despite the fact that his birth certificate DOCTRINE: Merlyn Mercadera represented by her sister and Atty in fact,
says so. Oga, sought correction of her given name as it appeared in her
certificate of Live Birth – from Marilyn to Merlyn.
The court enumerated the valid grounds upon which a change of name
under Rule 103 would be appropriate. These would be: a) when the name
RULE 103 RULE 108
is ridiculous, dishonorable or extremely difficult to write or pronounce;
(b) when the change results as a legal consequence such as Rule 103 procedurally governs Rule 108 implements judicial
legitimation; (c) when the change will avoid confusion; (d) when one has petitions for CHANGE of name or proceedings for correction or
continuously used and been known since childhood by a Filipino name, surname or both as per art. 376 cancellation of entries in civil
and was unaware of alien parentage; (e) a sincere desire to adopt a NCC. It provides for an registry pursuant to NCC 412.
Filipino name to erase signs of former alienage, all in good faith and independent special proceeding Entries refer to acts, events,
in court to establish status of a judicial decrees concerning civil
without prejudicing anybody; and (f) when the surname causes person involving his relations status of persons.
embarrassment and there is no showing that the desired change of with others, legal position, or to
name was for a fraudulent purpose or that the change of name would rest of community. In this kind of Before, only mistakes or errors of
petition, a person avails of a harmless and innocuous nature

Galicia-Punzal | 2022 | SPECPRO | DR. KHAN

remedy to alter the designation
by which he is known and called
in the community. Judicial
permission here aims to prevent
fraud and ensure record of
change by virtue of court decree.
It is also an action in rem, which
requires publication of the order
issued. It binds not only the
parties impleaded but whole
world.
Does not define or effect change
of existing family relations or
legal capacity or civil status,
However there are instances
where the change may be open to
objection by people who have the
surname because of impression
to public that they are related.
The SC clarified that to justify
change of name under 103 there
must be a proper and compelling
reason for the change, with proof
that the person requesting will be
prejudiced by use of official
name. It can only be granted on
grounds provided by law. There
has to be adversarial
proceedings.
may be corrected under 108, and
substantial errors affecting
citizenship, civil status,
nationality are beyond ambit of
the rule
However, separate opinions were
eventually adopted by the court
where it was held that if the
purpose is merely to correct
clerical errors visible to the eye
or obvious to understanding,
the court may, under summary
procedure, issue order for
correction of mistake.
Changes that affect civil status
from legitimate to illegitimate,
sex, are substantial and
controversial alteration that need
adversary proceedings.
Rule 108 on the other hand is a
petition for correction. It involves
clerical, spelling, typographical
and other innocuous errors in the
civil registry. As sec. 2 of rule 108
includes “change of name”, the
correction of a patently
misspelled name is covered. Not
all alterations allowed in a name
are confined to rule 103. Those for
clerical errors may be set right
under 108. But not limited only to
clerical, as substantial like
citizenship civ status and
paternity may also be under this
as long as there is adversary
proceeding.
In the case at hand, OSG claims Marilyn to Merlyn is not a correction but
a material correction tantamount to change.
“Thus, the petition filed by Mercadera before the RTC correctly falls
under Rule 108 as it simply sought a correction of a misspelled given
name.
- To correct simply means "to make or set right; to remove the
faults or error from."
- To change means "to replace something with something else of
the same kind or with something that serves as a substitute”
Lee v. Court of Appeals, G.R. No. 118387, 11 October 2001
DOCTRINE: This case is about a man who had a lawful wife and a
concubine. While the man had legal children with the wife, he had
children with the concubine too. He registered his children with the
concubine to be under the lawful wife’s children through fraud. Both
petitions sought to cancel and/or correct the false and erroneous
entries in all pertinent records of birth of petitioners by deleting and/or
canceling therein the name of “KehShiok Cheng” (legal wife) as their
mother, and by substituting the same with the name “Tiu Chuan”
(concubine), who is allegedly the petitioners’ true birth mother.
The SC ruled that it is precisely under special proceedings like Rule 108
of the Revised Rules of Court to establish the status or right of a party, or
a particular fact.
In this case, the petitions for the correction of entries in the petitioners’
records of birth were intended to establish that for physical and/or
Galicia-Punzal | 2022 | SPECPRO | DR. KHAN
biological reasons it was impossible for Keh Shiok Cheng to have DOCTRINE: Michael to Michelle. Male to Female. Nagkamali lang
conceived and given birth to the petitioners. talaga pero in truth babae talaga sya.

This is not an action to impugn legitimacy. The prayer therein is not to
declare that petitioners are illegitimate children of Keh Shiok Cheng, but
to establish that the former are not the latter’s children. There is nothing
to impugn as there is no blood relation at all between Keh Shiok Cheng
and petitioners.
A proceeding for correction and/or cancellation of entries in the civil
register under Rule 108 ceases to be summary in nature and takes on
the characteristics of an appropriate adversary proceeding when all the
procedural requirements under Rule 108 are complied with.
She is merely correcting the misspelling of her name. Michelle is not
attempting to change her current appellation.
She is just trying to correct “Michael” into “Michelle” , looking at both
names they have the same first 4 letters and only to correct the “a” into
an “e” and add “le” at the end. She is merely seeking to correct her
records to conform to her true given name.
GOVERNING LAW: Not Rule 108 but RA 9048.

Hence, a special proceeding is not always summary. The procedure

outlined in Rule 108 is not a summary proceeding per se. Rule 108
requires publication of the petition three (3) times, i.e., once a week for
three (3) consecutive weeks (Sec.4). The Rule also requires inclusion as
parties of all persons who claim any interest which would be affected by
the cancellation or correction (Sec. 3). The civil registrar and any person
in interest are also required to file their opposition, if any, within fifteen
(15) days from notice of the petition, or from the last date of publication
of such notice (Sec. 5). Last, but not the least, although the court may
make orders expediting the proceedings, it is after hearing that the
court shall either dismiss the petition or issue an order granting the
same (Sec. 7).

Thus, Rule 108, when all the procedural requirements thereunder are
followed, is the appropriate adversary proceeding to effect substantial
corrections and changes in entries of the civil register.

Republic v. Gallo, G.R. No. 207074, 17 January 2018

Galicia-Punzal | 2022 | SPECPRO | DR. KHAN

VIII. Absentees + Declaration of Presumptive Death
Rule 107, Rules of Court
Section 1. Appointment of representative. — When a person disappears
from his domicile, his whereabouts being unknown, and without having
left an agent to administer his property, or the power conferred upon the
agent has expired, any interested party, relative or friend may petition
the Court of First Instance of the place where the absentee resided
before his dis-appearance, for the appointment of a person to represent
him provisionally in all that may be necessary. In the City of Manila, the
petition shall be filed in the Juvenile and Domestic Relations Court.
Section 2. Declaration of absence; who may petition. — After the lapse of
two (2) years from his disapperance and without any news about the
absentee or since the receipt of the last news, or of five (5) years in case
the absentee has left a person in charge of the administration of his
property, the declaration of his absence and appointment of a trustee or
administrative may be applied for by any of the following:
(a) The spouse present;
(b) The heirs instituted in a will, who may present an authentic
copy of the same.
(c) The relatives who would succeed by the law of intestacy; and
(d) Those who have over the property of the absentee some right
subordinated to the condition of his death.
Section 3. Contents of petition. — The petition for the appointment of a
representative, or for the declaration of absence and the appointment of
a trustee or an administrator, must show the following:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs instituted in
the will, copy of which shall be presented, and of the relatives
who would succeed by the law of intestacy;
(c) The names and residences of creditors and others who may
have any adverse interest over the property of the absentee;
(d) The probable value, location and character of the property
belonging to the absentee.
Section 4. Time of hearing; notice and publication thereof. — When a
petition for the appointment of a representative, or for the declaration of
absence and the appointment of a trustee or administrator, is filed, the
court shall fix a date and place for the hearing thereof where all
concerned may appear to contest the petition.
Copies of the notice of the time and place fixed for the hearing shall be
served upon the known heirs, legatees, devisees, creditors and other
interested persons, at least ten (10) days before the day of the hearing,
and shall be published once a week for three (3) consecutive weeks prior
to the time designated for the hearing, in a newspaper of general
circulation in the province or city where the absentee resides, as the
court shall deem best.
Section 5. Opposition. — Anyone appearing to contest the petition shall
state in writing his grounds therefor, and serve a copy thereof on the
petitioner and other interested parties on or before the date designated
for the hearing.
Section 6. Proof at hearing; order. — At the hearing, compliance with the
provisions of section 4 of this rule must first be shown. Upon
satisfactory proof of the allegations in the petition, the court shall issue
an order granting the same and appointing the representative, trustee or
administrator for the absentee. The judge shall take the necessary
measures to safeguard the rights and interests of the absentee and
Galicia-Punzal | 2022 | SPECPRO | DR. KHAN
shall specify the powers, obligations and remuneration of his
representative, trustee or administrator, regulating them by the rules
concerning guardians.
In case of declaration of absence, the same shall not take effect until six
(6) months after its publication in a newspaper of general circulation
designated by the court and in the Official Gazette.
Section 7. Who may be appointed. — In the appointment of a
representative, the spouse present shall be preferred when there is no
legal separation. If the absentee left no spouse, or if the spouse present
is a minor or otherwise incompetent, any competent person may be
appointed by the court.
In case of declaration of absence, the trustee or administrator of the
absentee's property shall be appointed in accordance with the preceding
paragraph.
Section 8. Termination of administration. — The trusteeship or
administration of the property of the absentee shall cease upon order of
the court in any of the following cases:
(a) When the absentee appears personally or by means of an agent;
(b) When the death of the absentee is proved and his testate or intestate
heirs appear;
(c) When a third person appears, showing by a proper document that he
has acquired the absentee's property by purchase or other title.
In these cases the trustee or administrator shall cease in the
performance of his office, and the property shall be placed at the
disposal of whose may have a right thereto.
Articles 41, 238–253 Family Code
Art. 41. A marriage contracted by any person during subsistence of a
previous marriage shall be null and void, unless before the celebration
of the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a well-founded belief that
the absent spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years
shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of
the absent spouse.
Art. 239. When a husband and wife are separated in fact, or one has
abandoned the other and one of them seeks judicial authorization for a
transaction where the consent of the other spouse is required by law but
such consent is withheld or cannot be obtained, a verified petition may
be filed in court alleging the foregoing facts.
The petition shall attach the proposed deed, if any, embodying the
transaction, and, if none, shall describe in detail the said transaction
and state the reason why the required consent thereto cannot be
secured. In any case, the final deed duly executed by the parties shall be
submitted to and approved by the court.
Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124
and 127, insofar as they are applicable. (n)
Galicia-Punzal | 2022 | SPECPRO | DR. KHAN
Articles 381– 391, Civil Code
Article 381. When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an agent to
administer his property, the judge, at the instance of an interested party,
a relative, or a friend, may appoint a person to represent him in all that
may be necessary.
This same rule shall be observed when under similar circumstances the
power conferred by the absentee has expired. (181a)
Article 382. The appointment referred to in the preceding article having
been made, the judge shall take the necessary measures to safeguard
the rights and interests of the absentee and shall specify the powers,
obligations and remuneration of his representative, regulating them,
according to the circumstances, by the rules concerning guardians.
(182)
Article 383. In the appointment of a representative, the spouse present
shall be preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor, any
competent person may be appointed by the court.
Article 390. After an absence of seven years, it being unknown whether
or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the
age of seventy-five years, an absence of five years shall be sufficient in
order that his succession may be opened.
DR. KHAN NOTES:
Rule 107 is a remedy different from Art. 41. We clarified that Rule 107 is
about property. For administration, for the person who is not around. It’s
really just about property management of the absent person.
We have 2 separate remedies in Rule 107. The Court Order may come up
presenting both remedies or just one. What are these remedies? Or what
is the nature of the order of the RTC judgment if ever?
● Section 1: appointment of a representative
● Section 2: declaration of absence
Cross reference S. 2 of Rule 107 with the 2nd paragraph of section 6. So
Section 6 tells you that in the case of declaration of absence, the same
shall not take effective until 6 months after publication.
● Strict requirement
Art. 41 of the FC is specific to the declaration of presumptive death for
the purpose of RE-MARRIAGE. What can we extrapolate from that if we
consider succession?
Rule 107 is all about absentees, not succession.
Art. 41 is specific for remarriage of the present spouse. It doesn’t relate to
Art. 390 and 391. Really specific for that purpose so that the present
spouse may contract a subsequent marriage without risk for
prosecution for bigamy. Cross reference Art. 41 to Art. 248 and 253
(applicability of Chap. 2 and 3 under Title 11 of FC).
So, we don’t have a specific procedure that gives effect for the purpose
of presumptive death for 390 and 391 (4 years, for all purposes).
Galicia-Punzal | 2022 | SPECPRO | DR. KHAN
Heirs do not inherit debts, but debts are chargeable to the estate.
a wife are of the the declaration
representative separated in properties of of presumptive
Art. 247: means that you can only assail the decision through Rule 65 or fact or one has the death for the
annulment of judgment under Section 2: abandoned the abandoning purpose of
declaration of other = the spouse (not RE-MARRIAGE
Where do you file an Art. 41 case? What is your legal basis? RTC where absence other spouse conjugal
the either of the spouse resides, Art. 253 in relation to Art. 241. wanted to get a property!)
judicial
authorization
Art. 41 doesn’t give us specific guidance on which RTC so you have to from the other
analyze the law. Venue for jurisdiction doesn’t curtail the fraud by spouse, but the
analogy in Rule 107. Present residence = may be super far from where the authorization
“dead” spouse last resided cannot or
wouldn’t be
granted by the
There are 2 other remedies. What provisions in Chapter 2 of Title 11
other spouse –
provide for remedies? What are the problems solved by these remedies? for conjugal
● Art. 239: If the husband and wife are separated in fact or one has property.
abandoned the other = the other spouse wanted to get a judicial
authorization from the other spouse, but the authorization
cannot or wouldn’t be granted by the other spouse – for conjugal
In Re: Lukban, G.R. No. L-8492, 29 February 1956
property.
DOCTRINE: Old law irrelevant
● Art. 248: administration of the properties of the abandoning
spouse (not conjugal property!)
Republic v. CA and Hon. Madrona, G.R. No. 163604, 6 May 2005
● In 239 and 248: can only be filed by the present spouse, same as
DOCTRINE: A petition for declaration of presumptive death of a spouse
Rule 107. Rule 107 still exists for other parties.
under the Family Code is a summary proceeding under the Family Code,
● If you are the lawyer of the abandoned spouse, use Family Code
not a special proceeding under the Revised Rules of Court appeal for
for faster procedure. If the plaintiff is not a spouse, use Rule 107.
which calls for the filing of a Record on Appeal
Can the creditor file a Rule 107 petition? YES
Republic v. Granada, G.R. No. 187512, 13 June 2012
RULE 107 (2 ART. 239, FC ART. 248, FC ART. 41, FC DOCTRINE: The judgment of the court in a summary proceeding such as
ORDERS) declaration of presumptive death shall be immediately final and
executory and is not appealable.
Section 1: Art. 239: If the Art. 248: Art. 41 of the FC
appointment of husband and administration is specific to

Galicia-Punzal | 2022 | SPECPRO | DR. KHAN

“Well-founded belief” - The belief of the present spouse must be the
result of proper and honest to goodness inquiries and efforts to
ascertain the whereabouts of the absent spouse and whether the absent
spouse is still alive or is already dead.
Further, Title XI of the Family Code is entitled “Summary Judicial
Proceedings in the Family Law, which provides:
● Art. 238 Until modified by the Supreme Court, the procedural
rules in this Title shall apply in all cases provided for in this
Code requiring summary court proceedings. Such cases shall be
decided in an expeditious manner without regard to technical
rules.
● Art. 247. The judgment of the court shall be immediately final
and executory.
From the decision of the CA, the losing party may then file a petition for
review on certiorari under Rule 45 with the SC. This is because the errors
which the court may commit in the exercise of jurisdiction are merely
errors of judgment which are the proper subject of an appeal.
In Re: Reyes, G.R. No. L-32026, 16 January 1986
DOCTRINE: There is no need for a spouse to file a petition to declare the
other spouse judicially absent when the other spouse has left no
properties or debts.
The need to have a person judicially declared an absentee is when;
1) He has properties which have to be taken cared of or
administered by a representative appointed by the Court (Article
384, Civil Code);
2) The spouse of the absentee is asking for separation of property
(Article 191, Civil Code)
3) His wife is asking the Court that the administration of any
classes of property in the marriage be transferred to her (Article
196, Civil Code).
Santos v. Santos, G.R. No. 187061, 8 October 2014
DOCTRINE: The proper remedy for a judicial declaration of presumptive
death obtained by extrinsic fraud is an action to annul the judgment. An
affidavit of reappearance is not the proper remedy when the person
declared presumptively dead has never been absent. (Rule 47
(annulment of judgment) – orders under Art. 41 are immediately final
and executory, no appeal is available)
Annulment of judgment is the remedy when the Regional Trial Court’s
judgment, order, or resolution has become final, and the “remedies of
new trial, appeal, petition for relief (or other appropriate remedies) are
no longer available through no fault of the petitioner.”
There are 2 grounds for annulment of judgment (1) extrinsic fraud and
(2) lack of jurisdiction. “ It is extrinsic or collateral when a litigant
commits acts outside of the trial which prevents a party from having a
real contest, or from presenting all of his case, such that there is no fair
submission of the controversy.
Republic v. Cantor, G.R. No. 184621, 10 December 2013
DOCTRINE: “Well-founded belief” - depends upon the circumstances of
each particular case. Its determination, so to speak, remains on
a case-to-case basis. To be able to comply with this requirement, the
present spouse must prove that his/her belief was the result of diligent
and reasonable efforts and inquiries to locate the absent spouse and
that based on these efforts and inquiries, he/she believes that under the
circumstances, the absent spouse is already dead. It requires exertion of
active effort (not a mere passive one).
Galicia-Punzal | 2022 | SPECPRO | DR. KHAN
In the case at bar, the respondent’s “well-founded belief” was anchored
on her alleged “earnest efforts” to locate Jerry, which consisted of the
following:
1) She made inquiries about Jerry’s whereabouts from her in-laws, These efforts, however, fell short of the “stringent standard” and degree
neighbors and friends; and of diligence required by jurisprudence for the following reasons
2) Whenever she went to a hospital, she saw to it that she looked
through the patients’ directory, hoping to find Jerry.

Galicia-Punzal | 2022 | SPECPRO | DR. KHAN

GENERAL TABLE OF LAWS
PURPOSE OF REMEDY
Habeas Corpus (SEC. 1) The writ of habeas corpus
(Rule 102) 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.
ELEMENTS/REQUISITES
SPECIAL WRITS
(SEC. 3) Application for the writ shall be
by petition signed and verified either by
the party for whose relief it is intended, or
by some person on his behalf, and shall
set forth:
(a) That the person in whose behalf the
application is made is imprisoned or
restrained on his liberty;
(b) The officer or name of the person by
whom he is so imprisoned or restrained;
or, if both are unknown or uncertain,
such officer or person may be described
by an assumed appellation, and the
person who is served with the writ shall
be deemed the person intended;
(c) The place where he is so imprisoned
or restrained, if known;
(d) A copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the efficiency
of the remedy; or, if the imprisonment or
restraint is without any legal authority,
such fact shall appear.
JURISDICTION AND VENUE WHO MAY FILE THE
PETITION
(SEC. 2) The writ of habeas (SEC. 3) Application for the
corpus may be granted by the writ shall be by petition
Supreme Court, or any signed and verified either by
member thereof in the the party for whose relief it
instances authorized by law, is intended, or by some
and if so granted it shall be person on his behalf,
enforceable anywhere in the
Philippines, and may be NOTE: There is no need to
made returnable before the have a relationship with
court or any member thereof, the person who was
or before a Court of First illegally detained. It states
Instance, or any judge “some person”.
thereof for the hearing and
decision on the merits. It Sec. 7 states you don’t even
may also be granted by a have to know the name of
Court of First Instance, or a the person being illegally
judge thereof, on any day and detained.
at any time, and returnable
before himself, enforceable
only within his judicial
district.
BP 129, Sec. 21 (1)
Section 21. Original
jurisdiction in other cases. –
Regional Trial Courts shall
exercise original jurisdiction:
(1) In the issuance of writs of
certiorari, prohibition,
mandamus, quo warranto,
habeas corpus and
injunction which may be
Galicia-Punzal | 2022 | SPECPRO | DR. KHAN
 enforced in any part of their
respective regions;

Andal v. People of the Philippines

The writ of habeas corpus is the

proper remedy when;
1. Any person is deprived of his
liberty
2. The rightful custody of any
person is withheld from the
person entitled thereto
- Repealed = Special
Rule pertaining to
minors
3. There has been a deprivation
of a constitutional right
resulting in restraint of a
person
4. The court had no jurisdiction
to impose the sentence
5. An excessive penalty has
been imposed

Writ of Amparo (SEC. 1) A remedy available to any In the matter of Petition for Writ of (SEC. 3) Where to file; any (SEC. 2) Who may file;
(A.M. No. person whose right to life, liberty Amparo and Writ of Habeas Corpus in day at any time; 1. Aggrieved party
07-9-12-SC as and security is violated or Favor of Alicia Jasper Lucena: Elements 2. Any member of his
amended) threatened with violation by an of enforced disappearance 1. RTC where the immediate family
unlawful act or omission of a public threat, act, or a. Spouse
official or employee, or of a private (1) That there be an arrest, omission was b. Children
individual or entity. detention, abduction or any form committed c. Parents
of deprivation of liberty; 2. Sandiganbayan 3. Any ascendant,
The writ shall cover extralegal (2) That it be carried out by, or with 3. Court of Appeals descendant or
killings and enforced the authorization, support or 4. Supreme Court collateral relative
disappearances or threats thereof. acquiescence of, the State or a within the 4th civil
political organization; degree of
Tapuz, et al. v. Del Rosario; (3) That it be followed by the State consanguinity
1. It is intended to address or political organization’s 4. Any concerned
violations of or threats to the refusal to acknowledge or give citizen,
rights to life, liberty or information on the fate or organization,
whereabouts of the person association or
security

Galicia-Punzal | 2022 | SPECPRO | DR. KHAN

 2. The writ of amparo was subject of the amparo petition; institution
originally conceived as a and a. If there is
response to the (4) That the intention for such no known
extraordinary rise in the refusal is to remove the subject immediate
number of killings and person from the protection of relative
enforced disappearances, the law for a prolonged period of
and to the perceived lack of time.
available and effective
remedies to address these
extraordinary concerns.

The writ of amparo is not a writ to

protect concerns that are purely
property or commercial.

Habeas Data (AM (SEC. 1) It is a remedy for any person (SEC. 6) What is contained in a petition (SEC. 3) Where to file (SEC. 2) Who may file
No. 08-1-16-SC) whose right to privacy in life, liberty, 1. RTC where the
or security is violated or threatened A verified written petition for a writ of petitioner resides Any aggrieved party may file
by an unlawful act or omission of a habeas data should contain: 2. Court which has a petition for the writ of
public official or employee, or of a jurisdiction over the habeas data.
private entity engaged in the a. The personal circumstances of place where data is
gathering, collecting or storing off the petitioner and the collected, gathered However, in cases of
data or information regarding the respondent. stored enforced
person, family, home and 3. Supreme Court, disappearances/extralegal
correspondence of the aggrieved b. The manner the right to privacy Court of Appeals, killings
party. is violated or threatened and Sandiganbayan 1. Any member of the
how it affects the right to life, a. When the immediate family of
liberty or security of the action the aggrieved party,
aggrieved party; concerns namely: the spouse,
public data children and
c. The actions and recourses taken files of parents; or
by the petitioner to secure the governmen
data or information; t offices. 2. Any ascendant,
descendant or
d. The location of the files, collateral relative of
registers or databases, the the aggrieved party
government office, and the within the fourth
person in charge, in possession civil degree of
or in control of the data or consanguinity or
information, if known; affinity, in default of

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 those mentioned in
e. The reliefs prayed for, which may the preceding
include the updating, paragraph
rectification, suppression or
destruction of the database or
information or files kept by the
respondent.

In case of threats, the relief may include

a prayer for an order enjoining the act
complained of; and

f. Such other relevant reliefs that

are just and equitable

CUSTODY AND GUARDIANSHIP

Rule on Custody (SEC. 1) This rule shall apply to (SEC. 3) filed with the Family (SEC. 2) may be filed by any
of Minors and petitions for custody of minors and Court of the province or city person claiming such right.
Writ of Habeas writs of habeas corpus in relation where the petitioner resides
Corpus in thereto. or where the minor may be
Relation to found.
Custody of The Rules of Court shall apply
Minors (A.M. No. suppletorily.
03-04-04-SC)
(SEC. 20) 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

OR

may be filed with the regular

court in the absence of the
presiding judge of the
Family Court, provided,
however, that the regular

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court shall refer the case to
the Family Court as
soon as its presiding judge
returns to duty.

OR

may also be filed with th

appropriate regular courts in
places where there are no
Family Courts.

0R

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)

Reyes-Tabujara v. Court of
Appeals

RTC, SC and CA have

concurrent jurisdiction over
habeas corpus cases. Despite
the passage of RA 8369 — the
law conferring upon family
courts the exclusive
jurisdiction over habeas
corpus cases, both the SC
and the CA still retain their
jurisdiction over habeas

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Rules 92–97, RULE 92, (SEC. 2) Under this rule, the
Rules of Court word
(only with "incompetent" includes persons:
respect to - suffering the penalty of civil
incompetent) interdiction or
- who are hospitalized lepers,
- prodigals,
- deaf and dumb who are
unable to read and write,
- those who are of unsound
mind, even though they have
lucid intervals,
- and persons not being of
unsound mind, but by
reason of age, disease, weak
mind, and other similar
causes, cannot, without
outside aid, take care of
themselves and manage
their property, becoming
thereby an easy prey for
deceit and exploitation.
Rule on (SEC. 1) This Rule shall apply to
Guardianship of petitions for guardianship over the
Minors (A.M. No. person or property, or both, of a
03-02-05 SC) minor
The father and the mother shall
RULE 93, (SEC. 2) A petition for the
appointment of a general guardian must
show, so far as known to the petitioner:
a) The jurisdiction facts;
b) The incompetency rendering the
appointment necessary or
convenient;
c) The names, ages, and residence
of the relatives of the minor or
incompetent, and of the person
having him in their care;
d) The probable value and
character of his estate;
e) The name of the person for
whom letters of guardianship.
The petition shall be verified; but no
defect in the petition or verification shall
render void the issuance of letters of
guardianship.
(SEC. 4) Grounds of petition. - The
grounds for the appointment of a
guardian over the person or property, or
both, of a minor are the following:
a) death, continued absence, or
incapacity of his parents;
corpus cases.
RULE 92 (VENUE)
(SEC. 1) instituted in the RTC
of the province where the
minor or incompetent
persons resides.
If he resides in a foreign
country, in the RTC of the
province wherein his property
or the party thereof is
situated
(SEC. 3) A petition for
guardianship over the person
or property, or both, of a
minor may be filed in the
Family Court of the province
or city where the minor
Galicia-Punzal | 2022 | SPECPRO | DR. KHAN
RULE 93
(SEC. 1 - appointment of
guardian for resident) Any
relative, friend, or other
person on behalf of an
incompetent who has no
parent or lawful guardian
may petition the court
having jurisdiction for the
appointment of a general
guardian for the person or
estate, or both of an
incompetent.
An officer of the Federal
Administration of the United
States in the Philippines
may also file a petition in
favor of a ward thereof, and
the Director of Health, in
favor of an insane person
who should be hospitalized,
or in favor of an isolated
leper.
(SEC. 6 - guardian for
non-resident appointed)
any relative or friend of such
person, or any one interested
in his estate, in expectancy
or otherwise
(SEC. 2) Who may petition
for appointment of guardian.
– On grounds
authorized by law, any
relative or other person on
behalf of a minor, or
 jointly exercise legal guardianship
over the person and property of
their unemancipated common child
without the necessity of a court
appointment. In such case, this Rule
shall be suppletory to the provisions
of the Family Code on guardianship.
CHANGE OF NAME AND CORRECTION OF ENTRIES
Change of Name CHANGE of;
(Rule 103) 1. Surname
2. First name and surname
3. Middle name
Cancellation Or CORRECTION/CANCELLATION of:
Correction Of 1. Substantial errors/entries
b) suspension, deprivation or actually resides. If he the minor himself if fourteen
termination of parental resides in a foreign country, years of age or over, may
authority; the petition shall be filed petition the
c) remarriage of his surviving with the Family Court of the Family Court for the
parent, if the latter Is found province or city where his appointment of a general
unsuitable to exercise parental property or any part thereof guardian over the person
authority; or is situated. or property, or both, of such
d) when the best interests of the minor. The petition may also
minor so require. be filed by the
Secretary of Social Welfare
and Development and by the
Secretary of
Health in the case of an
insane minor who needs to
be hospitalized.
(SEC. 2) Contents of petition (SEC. 1) VENUE (SEC. 2) Who may file
1. RTC
A petition for change of name shall be 2. Province where he or 1. The person seeking
signed and verified by the person she resides for the to change his name
desiring his name changed, or some past 3 years or
other person on his behalf, and shall set 2. Some other person
forth: on his or her behalf
a. That the petitioner has been a
bona fide resident of the
province where the petition is
filed for at least three (3) years
prior to the date of such filing;
b. The cause for which the change
of the petitioner's name is
sought;
c. The name asked for.
(SEC. 1) VENUE (SEC. 1) Who may file
Galicia-Punzal | 2022 | SPECPRO | DR. KHAN
Entries In The 1. RTC of the province Any person interested in any
Civil Registry (SEC. 2) ENTRIES where the civil act, event, order or decree
(Rule 108) (a) Births registry is located. concerning the civil status
(b) Marriage of persons which has been
(c) Deaths recorded in the civil register.
(d) Legal separations
(e) Judgements of annulment of
marriage
(f) Judgement declaring
marriages void ab initio
(g) Legitimations
(h) Adoptions
(i) Acknowledgements 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
(o) Changes of name

RA 9048 CHANGE of; (SEC. 3) VENUE (SEC. 3) Who may file

1. First name 1. Local civil registry
2. Nickname office of the city or Any person having direct
municipality where and personal interest in the
CORRECTION of: the record being correction in an entry or
1. Clerical errors sought to be change of first name or
a. Date of birth corrected or nickname
b. Gender changed is kept

NOTE: RA 10172 indicated that these 2. Local civil registrar

corrections will be entertained only if of the place where
there are attachments such as the interested party
earliest school records or documents is presently residing
like medical records, baptismal or domiciled
certificate, other documents issued
by religious authorities, etc. 3. Nearest Philippine
Consulates

Galicia-Punzal | 2022 | SPECPRO | DR. KHAN

 ABSENTEES + DECLARATION OF PRESUMPTIVE DEATH

Absentees (Rule 2 TYPES OF PETITION: (SEC. 3) The petition for the appointment (SEC. 1&2) RTC of the place (SEC. 1) any interested party,
107) of a representative, or for the declaration where the absentee resided relative or friend
Sec. 1: appointment of a of absence and the appointment of a before his disappearance
representative trustee or an administrator, must show (SEC. 2) may be applied for
the following: In the City of Manila, the by any of the following:
Sec. 2: declaration of absence a) The jurisdictional facts; petition shall be filed in the a) The spouse present;
b) The names, ages, and residences Juvenile and Domestic b) The heirs instituted
(SEC. 1) When a person disappears of the heirs instituted in the will, Relations Court. in a will, who may
from his domicile, his whereabouts copy of which shall be present an
being unknown, and without having presented, and of the relatives authentic copy of
left an agent to administer his who would succeed by the law of the same.
property, or the power conferred upon intestacy; c) The relatives who
the agent has expired, any interested c) The names and residences of would succeed by
party, relative or friend may petition creditors and others who may the law of intestacy;
the Court of First Instance of the have any adverse interest over and
place where the absentee resided the property of the absentee; d) Those who have
before his disappearance, for the d) The probable value, location and over the property of
appointment of a person to character of the property the absentee some
represent him provisionally in all belonging to the absentee. right subordinated
that may be necessary. to the condition of
his death.
(SEC. 2) After the lapse of two (2)
years from his disapperance and
without any news about the absentee
or since the receipt of the last news,
or of five (5) years in case the
absentee has left a person in charge
of the administration of his property,
the declaration of his absence and
appointment of a trustee or
administrative may be applied for by
any of the following:
a) The spouse present;
b) The heirs instituted in a will,
who may present an
authentic copy of the same.
c) The relatives who would

Galicia-Punzal | 2022 | SPECPRO | DR. KHAN

 succeed by the law of
intestacy; and
d) Those who have over the
property of the absentee
some right subordinated to
the condition of his death.

Declaration of Specific to the declaration of RTC where either of the For the purpose of
Presumptive presumptive death for the purpose of spouses resides, (Art. 253 in contracting the subsequent
Death (Art. 41, FC) RE-MARRIAGE relation to Art. 241) marriage under the
preceding paragraph the
Art. 41. A marriage contracted by any spouse present must
person during subsistence of a institute a summary
previous marriage shall be null and proceeding as provided in
void, unless before the celebration of this Code for the declaration
the subsequent marriage, the prior of presumptive death of the
spouse had been absent for four absentee, without prejudice
consecutive years and the spouse to the effect of reappearance
present has a well-founded belief that of the absent spouse.
the absent spouse was already dead.

In case of disappearance where

there is danger of death under the
circumstances set forth in the
provisions of Article 391 of the Civil
Code, an absence of only two years
shall be sufficient.

For the purpose of contracting the

subsequent marriage under the
preceding paragraph the spouse
present must institute a summary
proceeding as provided in this Code
for the declaration of presumptive
death of the absentee, without
prejudice to the effect of
reappearance of the absent spouse.

Art. 239 Art. 239. When a husband and wife Art. 241. Jurisdiction over the The present spouse
(CONJUGAL are separated in fact, or one has petition shall, upon proof of
PROPERTY) abandoned the other and one of them notice to the other spouse, be

Galicia-Punzal | 2022 | SPECPRO | DR. KHAN

 seeks judicial authorization for a
transaction where the consent of the
other spouse is required by law but
such consent is withheld or cannot
be obtained, a verified petition may
be filed in court alleging the
foregoing facts.
exercised by the proper court
authorized to hear family
cases, if one exists, or in the
regional trial court or its
equivalent sitting in the
place where either of the
spouses resides.

The petition shall attach the

proposed deed, if any, embodying the
transaction, and, if none, shall
describe in detail the said
transaction and state the reason why
the required consent thereto cannot
be secured. In any case, the final deed
duly executed by the parties shall be
submitted to and approved by the
court.

If the husband and wife are separated

in fact or one has abandoned the
other, and

the other spouse wanted to get a

judicial authorization from the other
spouse, but the authorization cannot
or wouldn’t be granted by the other
spouse

Art. 248 (OTHER Art. 248. The petition for judicial
PROPERTY authority to administer or encumber
REGIMES) specific separate property of the
abandoning spouse and to use the
fruits or proceeds thereof for the
support of the family shall also be
governed by these rules.
Administration of the properties of
the abandoning spouse
Art. 241. Jurisdiction over the The present spouse
petition shall, upon proof of
notice to the other spouse, be
exercised by the proper court
authorized to hear family
cases, if one exists, or in the
regional trial court or its
equivalent sitting in the
place where either of the
spouses resides.

Galicia-Punzal | 2022 | SPECPRO | DR. KHAN