Special Proceedings Notes by DMG

Reference: Festin (2015), De Leon & Wilwayco (2015), and Atty. Nafiano’s lectures UC JD 19
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I. Guardianship

Definition
It is a trust relation of the most sacred character, in which one person, called a “guardian”, acts
for another person called the “ward”, whom the law regards as incapable of managing his own
affairs.

Purpose
It is designed to further the ward’s well-being, to preserve his/her property, and to render any
assistance he/she may personally require.

Basis
The State has “parens patriae” over minors. This refers to the duty of the state to protect the
rights of persons who are in an unfavorable position because of age or incapacity. It is an inherent
aspect of the state’s supreme power.

Guardian
He/she is the person in whom the law has entrusted the custody or control of the person or
estate, or both, of:
1. An infant;
2. An insane person; or
3. A person incapable of managing his/her own affairs.

Who is a minor?
He is a person below 18 years of age. (Someone who is 18 isn’t a minor.)

Who is an incompetent?
An incompetent is a person who is:
1. Suffering civil interdiction;
2. A hospitalized leper;
3. A prodigal;
4. Deaf and dumb who can’t read and write;
5. Of unsound mind, even though with lucid intervals;
6. Not of unsound mind but because of age, disease, weak mind, and other similar causes,
cannot take care of himself and manage his property without outside aid, thereby an easy prey
for deceit and exploitation.

Whether a person is incompetent should be anchored on clear, positive, and definitive evidence.
Expert opinion on his sanity is not necessary; the trial judge’s observations coupled with evidence
establishing his mental state will suffice.

Kinds of guardians
1. As to scope of powers
General - one whose responsibility is over the person of the ward or over the ward’s
property
Limited - one whose responsibility is over the ward’s property only
2. Under the Constitution
Legal guardian - one who, without the need of judicial appointment, is designated as a
guardian by provision of law (e.g., parents are legal guardians of their minor children)
Guardian ad litem - a competent person appointed by the court to prosecute or defend a
minor, insane person, or person declared to be incompetent, in an action in court

What law governs guardianship?

- Rules 92-97, Rules of Court covers guardianship over incompetents who are not minors.
- AM 03-02-05-SC (2003) covers guardianship over minors.
Which court has jurisdiction over guardianship proceedings?
- Venue is in the Regional Trial Court where the incompetent resides, in the case of incompetents
who are not minors.
- Venue is in the Family Court where the minor resides, in the case of minors.
- The court taking cognizance of the proceeding may transfer the venue to the court of another
place where the ward has acquired real property, if he has transferred his residence there. That
court shall have full jurisdiction to continue the proceedings, without additional court fees.
(Section 3, Rule 92)

What if the incompetent/minor doesn’t reside in the Philippines? What is the rule on venue?
The petition may be filed in the RTC of the place where the property of the minor/incompetent
may be situated. If there are multiple properties, venue mat be in the RTC of the place where any
of the properties may be situated.

May a nonresident be appointed as guardian?

No. Although there is no law requiring courts to appoint residents only, the courts should not
appoint persons who are not within the jurisdiction of Philippine courts because it would be
difficult to protect the ward. (Vancil v Belmes, GR 132223, 2001)

Who may petition for appointment of guardian?

With respect to an incompetent: (AFODA)
1. Any relative;
2. Friend;
3. Other person on behalf of the incompetent who has no parents or lawful guardian;
4. The Director of Health in favor of an insane person who should be hospitalized or an
isolated leper; or
5. Any one interested in the estate of a non-resident incompetent.
With respect to a minor: (ROMS)
1. Any relative;
2. Other person on behalf of the minor;
3. The minor if 14 years old or over; or
4. The Secretary of DSWD; and the Secretary of DOH in case of an insane minor who needs
to be hospitalized.

Contents of the petition for guardianship

For an incompetent: (JIP-RL)
1. Jurisdictional facts;
2. Incompetency of the person rendering the appointment of a guardian necessary or
convenient;
3. Probable value and character of incompetent’s estate;
4. Names, ages, and residences of the relatives of the incompetent and the persons who
have him under their care; and
5. Name of the person for whom letters of guardianship are prayed.
For a minor:
1. Jurisdictional facts;
2. Name, age, and residence of minor;
3. The ground rendering the appointment necessary or convenient;
4. The death of minor’s parents; or the termination, deprivation, or suspension of their
parental authority;
5. The remarriage of the minor’s surviving parent;
6. The names, ages, and residences of the minor’s relative within the 4th civil degree or the
person who has custody over the minor;
7. The probable value, character, and location of the minor’s property; and
8. The name, age, and residence of the person for whom the letters of guardianship are
prayed.

What are the grounds for the appointment of a guardian?

For an incompetent: when the incompetent has no parent or lawful guardian
For a minor:
1. Death, continued absence, or incapacity of parents;
2. Suspension, deprivation, or termination of parental authority;
3. Remarriage of his surviving parent, if found unsuitable to exercise parental authority; or
4. When the best interests of the minor so require.

What are the factors considered in the appointment of a guardian?

1. Moral character and conduct
2. Physical, mental, or psychological condition
3. Financial status
4. Relationship of trust with the minor
5. Availability to exercise the powers and duties of a guardian for the full period of
guardianship
6. Lack of conflict of interest with the minor
7. Ability to manage the property of the minor

In the appointment of guardian of a minor with no parents, who may the court give first
preference to?
1. The surviving grandparent
2. Actual custodian over 21;
3. A paternal grandparent; or
4. An uncle or aunt over 21.

What happens after the filing of a petition for the appointment of a guardian?
- The court will fix a time and place for hearing.
- Then the court will give reasonable notice to the persons mentioned in the petition residing in
the province, including the minor (if over 14 years old) or the incompetent. The court may direct
other general or special notice.
- Non-compliance with the required notice will render the proceedings null and void.
Is publication required?
No. Unlike in other special proceedings, publication of the notice isn’t required. Service to the
persons mentioned in the petition residing in the Philippines and the incompetent will suffice.

What is the rule on the legal guardianship of the property of unemancipated child?
- The father shall be the legal guardian of the unemancipated child. In his absence or incapacity,
it shall be the mother. This does not need a court appointment.
- Only for good reason may another person be named.
- If the value of the child’s property or the child's annual income exceeds P50,000, the parent
shall be required to furnish a bond to guarantee the performance of obligations prescribed for
general guardians. (Guardian’s Bond)
- The amount of the bond will be determined by the court, but it must not be less than 10% of
the child’s property or annual income.
- The ordinary rules on guardianship shall be merely suppletory. But the ordinary rules shall apply
when the child is under substitute parental authority, or if the guardian is a stranger, or a parent
has remarried. (Article 225, Family Code has modified Section 7, Rule 93, Rules of Court.)

What are the conditions of a guardian’s bond?

1. To make and return to the court, within 3 months, a true and complete inventory of all the
estate of his ward which shall come to his possession or knowledge of other reason for him;
2. To faithfully execute the duties of his trust, to manage and dispose of the estate according to
the rules for the best interests of the ward, and to provide for the ward’s proper care, custody,
and education;
3. To render a true and just account of all the estate of the ward in his hands, and of all proceeds
or interest derive from it, and of its management and disposition, at the time designated by the
rules and such other times the courts direct, and at the expiration of his trust to settle his
accounts.
4. To perform all orders of the court and other duties required by law.
The mere fact that the guardian has been removed doesn’t relieve him nor he bondsmen from
liability to the ward during the time he was acting as guardian. If there had been mismanagement
or loss during the time of guardianship, the responsibility must fall upon him. (Guerrero v Tehran,
GR L-4898, 1909)

Opposition - Who may oppose and on what grounds?

Any interested person may, by filing a written opposition, contest the petition on the ground of:
1. Majority of the alleged minor;
2. Competency of the alleged incompetent; or
3. Unsuitability of the person for whom the letters are prayed.

What could be the prayer in the opposition?

The interested person may pray:
1. That the petition be dismissed;
2. That the letters of guardianship be issued to him instead; or
3. That the letters be issued to any suitable person named in the opposition.

May the letters of guardianship be issued while an appeal is pending?

Yes. upon urgent and compelling reasons, execution pending appeal is a matter of sound
discretion on the part of the trial court. The appellate court will not interfere, control, or inquire into
the exercise of this discretion, unless there has been an abuse of discretion. The primary objective
of guardianship proceedings is for the protection of the ward. (Francisco v CA, GR L-57438, 1984)

Selling & Encumbering Property of Ward - When may there be a petition to sell or encumber
ward’s estate?
1. When the income of the estate under guardianship is insufficient to maintain the ward and his
family;
2. When the income of the estate s insufficient to maintain and educate the minor ward;
3. When it appears that it is for the benefit of the ward that the estate be sold or encumbered,
and the proceeds be put out at interest or invested in a productive security, or in the
improvement or security or other real estate of the ward.

Powers and duties of guardians

A guardian appointed shall have:
1. The care and custody of the person of his ward and the management of his estate; or
2. The management of the ward’s estate only. In the case of a non-resident ward, the
management of the ward’s rate within the Philippines.

The guardian also has the following duties:

1. To pay the ward’s just debts out of his personal estate and the income of his real estate, if
insufficient; if not, out of his real estate upon an order for its sale or encumbrance;
2. To settle all accounts of his ward; to demand, sue form, and receive all debts due him; and to
appear for and represent his ward in all actions and special proceedings, unless another has
been appointed for that purpose.
3. To manage the estate of his ward frugally and without the waste, and apply the income and
profits as far as necessary, to the comfortable and suitable maintenance of the ward and his
family; and if the estate’s income be insufficient, to sell or encumber the estate upon an order,
applying the proceeds to such maintenance.
4. To join in partition proceedings after hearing.
5. To render an inventory under oath, within 3 months after appointment, and annually thereafter.
6. To render account to the court after one year from appointment, and as often as may be
required.

What are the grounds for termination of guardianship over a minor?

1. The ward has come of age (attained 18 years);
2. Death of the ward; or
3. Death of the guardian;

Other grounds (Section 3, Rule 97):

1. Marriage of a minor ward; or
2. Voluntary emancipation of a minor ward.
Note: These terminate guardianship over the person of the ward. The minor is now
enabled to administer his property as if he were of age, but he cannot borrow the money
or alienate or encumber real property without the consent of his parent or guardian. He
can sue or be sued in court only with the assistance of his parent or guardian. The
guardian of any person may be discharged by the court when it appears that the
guardianship is no longer necessary.

What are the grounds for termination of guardianship over an incompetent?

1. Judicial determination of the ward’s competency;
Note: The incompetent, his guardian, relative, or friend, may petition for this determination.
The petition shall be verified by oath, stating the competency. The guardianship shall
cease upon adjudication of competency. The guardian or ward need not institute another
proceeding for this, as it is merely a continuation of the guardianship proceedings.
2. Death of the ward; or
3. Death of the guardian;

What are the grounds for removal or resignation of a guardian?

1. When the guardian becomes insane;
2. When the guardian becomes incapable of discharging his trust;
3. When the guardian becomes unsuitable;
4. When the guardian has wasted or mismanaged the estate; or
5. When the guardian failed to render an account or make a return, 30 days after it is due.

Summary of Guardianship Procedure

1. Filing of the petition for appointment
2. Notice of hearing, served upon all persons named in the petition
3. Opposition, if any
4. Hearing
5. Filing of bond
6. Service of judgment on the Local Civil Registrar
7. Termination of guardianship

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II. Trusteeship

Definition
A trust is a confidence reposed in one person, called the trustee, for the benefit of another, called
the “cest uni que trust” or the beneficiary.

The trustee holds the property for the benefit of the beneficiary.
Trusteeship is a fiduciary relationship. It is based on trust and confidence.

Who are the parties?

- The person who establishes a trust is called the trustor;
- The person in whom confidence is reposed as regards property for the benefit of another person
is known as the trustee; and
- The person for whose benefit the trust has been created is the beneficiary. (Art. 1440, NCC)

How is a trust created?

It may be created by law or by agreement.

Who holds the title?

The trustee holds the legal title, while the beneficiary holds the beneficial or equitable title.

What are express and implied trusts?

- An express trust is one created by the direct and positive acts of the parties—by some writing,
deed, will, or by words evidencing an intention to create a trust. It is created by intention.
- An implied trust is one which, without being express, is deducible from the nature of the
transaction as a matter of intent, or which are super induced on the transaction by operation of
law as matters of equity, independent of the particular intention of the parties. It is created by
operation of law.

Governing Rule
Rule 98 of the RoC only applies to express trust. It does no apply to implied trust.

When is the appointment of a trustee necessary?

The appointment of a trustee becomes necessary when there is a need to:
1. Carry into effect a will where the testator omitted appointing a trustee in the Philippines; or
2. Carry into effect other written instruments where the trustee declines, resigns, dies, or is
removed before the accomplishment of the trust.

Venue
- The trustee will be appointed by the RTC where the will was allowed, if the trust is created by a
will that has been probated in the Philippines. Otherwise, the trustee will be appointed by the
RTC of the province in which the property affected by the trust is situated. (Section 1, Rule 98)
- In cases where a land in the Philippines is held in trust for a resident, by a trustee who derives
his authority abroad, a petition will filed in the RTC of the province where the land is situated,
and such trustee will be ordered to apply to the court for appointment as trustee. If he does
not, the court will declare the trust vacant and appoint a new trustee. (Section 4, Rule 98)

What are the powers of a new trustee?

- The trustee appointed by the court will have the same rights, powers, and duties as if he had
been appointed by the testator.
- Likewise, a new trustee succeeding a former trustee who dies, resigns, declines, or is removed
before the trust is accomplished will have the same powers as if he had been originally
appointed. (Sections 2 & 3, Rule 98)

Trustee’s bond
- Before entering on the duties of his trust, a trustee shall file a bond with the clerk of court
having jurisdiction of the trust. The amount will be fixed by a judge of that court, sufficient to
protect any party in interest.
- Neglecting to file such bond would amount to declining or resigning the trust.
- A trustee under a will may be exempted to file a bond if the testator has directed or requested
such exemption. This exemption may be cancelled by the court at any time, and the trustee
may be required to file a bond.

Conditions of a trustee’s bond:

1. That the trustee will make and return to the court a true inventory of all the real and
personal estate belonging to him as trustee;
2. That he will manage and dispose of all such estate, and faithfully discharge his trust
according to law and the will of the testator or the provisions of the instrument or order
under which he is appointed;
3. That he will render at least once a year until his trust is fulfilled, unless he is excused by
the court, a true account of the property in his hands and of the management and
disposition thereof, and will render such other accounts as the court may order;
4. That at the expiration of his trust, he will settle his accounts in court and pay over and
deliver all the estate remaining in his hands, or due from him on such settlement, to the
person or persons entitled thereto. (Section 6, Rule 98)

May a trustee serve without compensation?

Xxx

What is the basis of a trustee’s compensation?

The compensation of the trustee shall be fixed by the court, if it be not determined in the
instrument creating the trust. (Section 7, Rule 98)
Grounds for removal of trustee
1. When the removal appears essential in the interests of parties beneficially interested;
2. When the trustee is insane;
3. When the trustee is incapable of discharging his trust;
4. When the trustee is evidently unsuitable; or
5. When the trustee resigns his trust and the court allows his resignation.
(Section 8, Rule 98)

Procedural requisite for trustee’s removal

Parties beneficially interested may file a petition. There must be notice and hearing. (Ibid)

Proceedings for sale or encumbrance of trust estate

- When the sale or encumbrance of any real or personal estate held in trust is necessary or
expedient, the court having jurisdiction of the trust may, on petition and after due notice and
hearing, order such sale or encumbrance to be made, and the reinvestment and application of
the proceeds thereof in such manner as will best effect the objects of the trust.
- The petition, notice, hearing, order of sale or encumbrance, and record of proceedings, shall
conform as nearly as may be to the provisions concerning the sale or encumbrance by
guardians of the property of minors or other wards. (Section 9, Rule 98)

May a trustee buy the property he holds in trust?

No, a trustee cannot buy the property he holds in trust, whether by purchase or by judicial action,
either in person or through mediation of another. A trustee cannot be allowed to take advantage of
the entrusted property, for himself, under the pretense of serving the beneficiary.

May a trustee acquire the property he holds in trust by prescription?

No. As a general rule, a trustee’s possession is not adverse, thus, it cannot ripen into a title by
prescription.
Is there an exception?
Yes. A trustee’s possession may constitute as adverse possession when the following
requisites concur:
1. The trustee has performed unequivocal acts of repudiation amounting to the ouster of
the beneficiary;
2. Such positive acts of repudiation have been known to the beneficiary; and
3. The evidence thereon is clear and conclusive. (Ceniza v CA, 181 SCRA 552)

Substantive Basis
Arts. 1443-1446 of the NCC - General Principles:
Art. 1443. No express trusts concerning an immovable or any interest therein may be
proved by parol evidence.
Art. 1444. No particular words are required for the creation of an express trust, it being
sufficient that a trust is clearly intended.
Art. 1445. No trust shall fail because the trustee appointed declines the designation, unless
the contrary should appear in the instrument constituting the trust.
Art. 1446. Acceptance by the beneficiary is necessary. Nevertheless, if the trust imposes
no onerous condition upon the beneficiary, his acceptance shall be presumed, if there is no
proof to the contrary.

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III. Adoption

Definition
- It is the process of making a child, whether related or not to the adopter, possess in general,
the rights accorded to a legitimate child. It is a juridical act, a proceeding in rem, which creates
between two persons a relationship similar to that which results from legitimate paternity and
filiation. (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, GR no. 48311, March
31, 2005)
- The modern trend is to consider adoption not merely as an act to establish a relationship of
paternity and filiation, but also an act which endows the child with a legitimate status.
- Adoption is a statutory relation, not a natural one. Hence, the stringent requirements of the law
must be complied with.
- Adoption should be the last resort. The law gives primary importance to the natural family.
Adoption is only a remedy when a child cannot be put in the care of his natural family.

Interpretation of adoption statutes and rules

- Adoption statutes, being humane and salutary, should be construed to carry out the beneficent
purposes of adoption. The interests and welfare of the child are of primary and paramount
consideration, hence, every reasonable intendment should be sustained to promote and fulfill
these noble and compassionate objectives of the law.
- The best interests and welfare of the child should be of paramount consideration. It is never for
the interest of the adopters.
- Textual basis of “best interest”
- But the best interest of the child is not the sole consideration. The natural right of biological
parents must also be respected (GR 15308)

Governing laws
- RA 8552: Domestic Adoption Act of 1998
- RA 8043: Inter-country Adoption Act of 1995
- RA 9523: Act requiring Certification of the DSWD to declare a child legally available for
adoption (CDCLAA) as a prerequisite for adoption proceedings, amending RA 8552 and RA
8043
- RA 9858: Act providing for the legitimation of children born to parents below marrying age,
amending Art. 177-178 of the Family Code (2009)
- RA 11222: Simulated Birth Rectification Act (2018)
- Rules 99-100 of the Rules of Court are no longer operative. They have been superseded by AM
02-6-02-SC

Nature of adoption proceedings

- It is an in rem proceeding. It binds the whole world, not only the parties to the petition.
- Thus, notice must be given to protect the interests of all persons concerned.
Definition of terms (Section 2, RA 9523)
1. Child - (a) a person below 18 years of age; or (b) a person over 18 but is unable to fully take
care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination
because of physical or mental disability or condition
2. Abandoned child - (a) a child who had no proper parental care or guardianship; (b) a child
whose parents have deserted him for at least 3 continuous months; or (c) a foundling
3. Neglected* child - a child whose basic needs have been deliberately unattended or
inadequately attended for 3 continuous months
4. Voluntarily committed child
5. Child legally free for adoption - a child in whose favor a certification was issued by DSWD
that he is legally available for adoption: (a) after the fact of abandonment or neglect has been
proven through the submission of pertinent documents; or (b) after the child was voluntarily
committed by his parent or legal guardian.

*When is there neglect? What are the forms of neglect?

1. There is physical neglect when the child is malnourished, ill-clad, and without proper shelter. A
child is unattended when left by himself without proper provisions or supervision.
2. There is emotional neglect when the child is (a) maltreated, raped, seduced, exploited,
overworked, or made to work under conditions not conducive to good health; (b) made to beg
in the streets or public places; or (c) in moral danger or exposed to gambling, prostitution, or
other vices.
(Section 2, RA 9523)

Qualifications of adopter (Section 7, RA 8552)

1. Filipino citizenship
 2. Legal age
3. Full civil capacity and legal rights
4. Good moral character
5. Non-conviction of any crime involving moral turpitude
6. Emotional and psychological capacity to care for children
7. At least 16 years older than the adoptee*
8. In a position to support or care for his children in keeping worth the means of the family

*The 16-year gap may be waived when the adopter is the adoptee’s biological parent or the
spouse of the adoptee’s parent. The rationale for this is to approximate natural filiation.

A guardian may also adopt his ward after the termination of the guardianship and clearance of
financial accountabilities.

May an alien adopt under the Domestic Adoption Act?

Yes, provided that he also possesses the qualifications for a Filipino national adopter; and that:
D-R-C
1. His country has diplomatic relations with the Philippines;
2. He has been living in the Philippines for at least 3 continuous years prior to the filing of the
application for adoption and maintains such residence until the adoption decree is entered
(Residency requirement); and
3. He has been certified by his diplomatic or consular office or any appropriate government
agency that he has the legal capacity to adopt in his country; and that his government
allows the adoptee to enter his country as his adopted son/daughter (Certification
requirement).

The requirements of residency and certification may be waived for the following persons:
1. A former Filipino citizen who seeks to adopt a relative within the 4th civil degree of
consanguinity or affinity;
2. An alien who seeks to adopt the legitimate child of Filipino spouse; and
3. An alien married to a Filipino citizen and seeks to jointly adopt the Filipino spouse’s relative
within the 4th civil degree of consanguinity and affinity.

Joint adoption if adopter is married

Husband and wife are required to jointly adopt - they must both be impleaded as petitioners,
except:
1. If one spouse seeks to adopt the legitimate child of the other;
2. If one spouse seeks to adopt own illegitimate child, and the other spouse consented; or
3. If the spouses are legally separated from each other.

Who may be adopted? (Section 8, RA 8552)

1. Any person below 18 who has been administratively or judicially declared available for
adoption (with a CDCLAA);
2. The legitimate child of one spouse by the other spouse;
3. The illegitimate child by a qualified adopter to improve status of legitimacy;
4. A person 18 and over if, before the adoption, said person has been consistently
considered and treated by the adopter as his own since minority;
5. A child whose adoption has been previously rescinded; or
6. A child whose biological or adoptive parent/parents has died, but the proceedings must be
initiated 6 months after such parent’s/parents’ death.

How many times may a person be adopted?

There is no limit.

How many times may a person adopt?

There is no limit.

Whose consent must be obtained?

1. The adoptee, if 10 years or over;
 2. The biological parents of the child, if known, or the legal guardian, or the child-placement
agency, child-caring agency, or the proper government instrumentality which has legal
custody of the child;
3. The legitimate and adopted children of the adopter and of the adoptee, if any, who are 10
years of age or over;
4. The illegitimate children of the adopter living with him who are 10 years of age; and
5. The spouse of the adopter or adoptee, if any.

Will the statutory filiation created by adoption extend to persons other than the adopter and
adoptee?
No, the relation created is only between the adopters and adoptees.

What are the annexes that shall be attached to the petition?

1. Birth, baptismal, or foundling certificate, or school records
2. Affidavit of consent of those required to give consent
3. Child study report on adoptee and biological parents
4. Certification of legal capacity from the diplomatic or consular office, if adopter is an alien
5. Home study report
6. Decree of annulment, nullify, or legal separation of the adopter and biological parents

Procedure
1. Filing of the petition
2. If petition and attachments are sufficient in form and substance, the court will issue an order.
3. Hearing - there must be personal appearance of the petitioner and the adoptee. Petitioner
must testify before the presiding judge.
4. The court will verify whether the biological parent has been counseled against making hasty
decisions to give up child, to ensure that all measures to strengthen the family have been
exhausted, and to ascertain if any prolonged stay of the child in his own home will be inimical
to his welfare.
5. Supervised Trial Custody by the adopter of the adoptee, for at least 6 months - Here, the
parties are expected to adjust physically and emotionally to each other, and establish a
bonding relationship, to be monitored by a social worker, or the DSWD, or the LGU social
service or agency which submitted the case study. The adopter shall have temporary parental
authority. The court may reduce the 6-month period or exempt the parties, motu proprio or
upon motion, if it will be for the adoptees best interests. But an alien adopter must complete
the 6 months. The social worker shall submit a report within 2 weeks after the trial custody
terminates.
6. Issuance of Decree - If the supervised trial custody is satisfactory, a decree will be issued and
it shall take effect as of the date of the original petition, even if the petitioner dies before
issuance.
7. The clerk of court shall enter the Decree in the Book of Adoptions.

Confidential nature
The hearings shall be confidential and not open to public. Disclosure of information to third
persons is allowed upon proper motion if necessary for security reasons, or for purposes
connected with the adoption and for the adoptee’s best interests.

Effects of an adoption decree

1. Except in cases where the biological parent is the spouse of the adopter, all legal ties between
the biological parent(s) and the adoptee shall be severed and the same shall then be vested
on the adopter(s).
2. The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents
and purposes and as such is entitled to all the rights and obligations provided by law to
legitimate sons/daughters born to them without discrimination of any kind. To this end, the
adoptee is entitled to love, guidance, and support in keeping with the means of the family.
3. In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights
of succession without distinction from legitimate filiation. However, if the adoptee and his/her
biological parent(s) had left a will, the law on testamentary succession shall govern

Will the biological parents remain as intestate heir of adoptee?

X

Will the adopted child remain as intestate heir of natural parents?

Yes, the adoptee remains as the intestate heir of his biological parent.l

Rescission - Who may ask for rescission?

Only the adoptee may file a petition for rescission. If the adoptee is a minor, or is over 18 but is
incapacitated, he may file with the assistance of the DSWD.

Adoption, being in the best interest of the child, shall not be subject to rescission by the
adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919
of the Civil Code.

Where?
The petition shall be filed with the Family Court of the city or province where the adoptee resides.

When?
1. The adoptee, if incapacitated, must file the petition for rescission or revocation of adoption
within 5 years after he reaches the age of majority.
2. If he was incompetent at the time of the adoption, petition must be filed within 5 years after
recovery from such incompetency.

Grounds for rescission:

1. Repeated physical and verbal maltreatment by the adopter(s) despite having undergone
counseling;
2. An attempt on the life of the adoptee;
3. Sexual assault or violence; or
4. Abandonment and failure to comply with parental obligations.

What happens after rescission?

1. If the petition is granted, the parental authority of the adoptee's biological parent(s), if known,
or the legal custody of the DWSD shall be restored if the adoptee is still a minor or
incapacitated.
2. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be
extinguished.
3. The court shall order the Civil Registrar to cancel the amended certificate of birth of the
adoptee and restore his/her original birth certificate.
4. Succession rights shall revert to its status prior to adoption, but only as of the date of
judgment of judicial rescission.
5. Vested rights acquired prior to judicial rescission shall be respected.
6. The court shall order the adoptee to use the name stated in his original birth or foundling
certificate.

Inter-Country Adoption
- Definition: It is the adoption of Filipino children by foreign nationals and Filipino citizens
permanently residing abroad.
- Venue: It shall be in the Family Court having jurisdiction over the place where the child resides
or may be found. It may be directly filed with the Inter-Country Adoption Board.
- Who may be adopted: a child legally available for domestic adoption
- Contents of petition:
1. Age of the petitioner and child - the petitioner must be at least 27 years old, and 16 years
older than the child, unless the petitioner is the natural parent of the child or the spouse of
such parent
2. Name of the spouse, who must be co-petitioner, except when the adoptee is the legal
child of the spouse
3. Capacity to act and assume all rights and responsibility of parental authority under his
national laws and has undergone appropriate counseling from an accredited counselor in
his country
4. Non-conviction of any crime involving moral turpitude
5. Eligibility to adopt under his national law
 6. Capability to provide proper care and support and instill necessary moral values and
example to all his children
7. Agreement to uphold basic rights of the child
8. Diplomatic relations
9. Possession of all qualifications and none of the disqualifications
- Annexes to the petition:
1. Birth certificate of petitioner
2. Marriage contract or divorce decree
3. Sworn statement of consent of biological or adopted children above 10 years
4. Physical, medical, psychological evaluation of petitioner certified by duly licensed
physician and psychologist
5. ITRs or any authentic documents showing current financial capability of petitioner
6. Police clearance issued within 6 months before filing
7. Character reference from a local church or minister, employer, and a member of his
immediate community who has known the petitioner for 5 years
8. Full body postcard size pictures of the petitioner and his immediate family taken at least 6
months before filing

—————

IV. Writ of Habeas Corpus

Definition
- It literally means “you have the body” in Latin.
- The writ of habeas corpus involves the right to liberty. It extends 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.
- It is directed to the person detaining another, commanding him to produce the body of the
prisoner at a designated time and place, with the day and cause of his caption and detention,
to do, submit to, and receive whatever the court or judge awarding the writ shall consider in
that behalf.

Purpose
Its purpose is to determine whether a particular person is legally held, and to ultimately relieve a
person from unlawful restraint.

It is a remedy available against:

1. Deprivation of liberty; and
2. Withholding the rightful custody of any person.

Requirement on the nature of restraint

- The restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom
of action. It cannot be availed of in cases where the restraint is because of some legal process
or a valid judgment.
- Hence, the following persons cannot avail of this remedy:
1. Persons released on bail
2. Persons denied the right to bail
3. Persons already charged with a criminal offense (In the Matter of the Petition food Habeas
Corpus of Kunting, GR 167193, 2006)
4. Persons under restrictive custody, which is an administrative disciplinary machinery given
to PNP officers as a matter of internal discipline (Ampatuan v Macaraig, GR 182497, 2010)
- But it may also be resorted to in cases where “the rightful custody of any person is withheld
from the person entitled thereto”. Thus, it is also a remedy available for parents seeking to
regain the custody of a minor child, even if such child is in the custody of another out of her
own free will.

Nature of proceedings
- Habeas corpus proceedings are separate and distinct from the main case from which the
proceedings spring.
- They rarely touch the merits of the case.
- They don’t require any pronouncement with respect to the case.
- They deal only with the detention of the person.
- They are summary remedies—analogous to proceedings in rem.
Nature of the writ
- The writ does not act upon the prisoner who seeks relief, but upon the person who holds him
under an allegedly unlawful authority.
- It is a prerogative writ. It is not issued as a matter of right but in the sound discretion of the
court or judge.

To what cases does the writ of habeas corpus apply?

1. All cases of illegal confinement or detention by which any person is deprived of his liberty
2. The rightful custody of any person is withheld from the person entitled thereto

It may also be allowed as a post-conviction remedy, when:

1. There has been a deprivation of a constitutional right resulting in the restraint of a person;
2. the court had no jurisdiction to impose the sentence; or
3. The imposed penalty has been excessive, thus voiding the sentence as to such excess.

Who may file?

The petition may be filed by the party for whose relief it is intended, or by some person on his
behalf.

Where to file?
1. RTC where the person is detained
2. Sandiganbayan
3. CA
4. SC
5. Any Justice of the Sandiganbayan, CA, and SC

When to file?
- On any day and at any time, if filed before the SC or RTC
- During instances authorized by law, if filed before the CA
Contents of Petition
1. Person in whose behalf the application is made is imprisoned or restrained on his liberty
2. Officer or name of the person by whom he is imprisonments or restrained; or if both are
unknown and 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
3. Place where he is do imprisoned or restrained, if known
4. 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.

Form of the Petition

- The petition shall be signed and verified.
Enforceability of the writ
- Writs issued by the Sandiganbayan, CA, and SC are enforceable anywhere in the Philippines
- Writs issued by the RTC are enforceable in the RTC’s juridical district
Service: How is the writ served and executed?
- By leaving the original with the person to whom it is directed and preserving a copy on which to
make return or service.
- If that person cannot be found, or does not have the prisoner in his custody, then the service
shall be made on any other person having or exercising such custody.
- The person to whom it is directed shall convey the person restrained and named in the writ,
before the judge allowing the writ, or if such judge is absent or disabled, before another judge
 of the same court. The conveyance must be on the day specified in the writ, unless the person
cannot be brought to court because of a sickness or infirmity.

Return: Where should it be returned?

- If issued by the Sandiganbayan, CA, or SC, it shall be returned before such court or justice.
- If issued by the RTC, it shall be returned before such court or judge.
How should it be returned?
- The return or statement shall be signed by the person who makes it.
- It shall also be sworn by him if the prisoner is not produced
- In all other cases unless the return is made and signed by a sworn public officer in his official
capacity.

Hearing on the Return

- When the writ is returned before one judge, at a time when the court is in session, the judge
may adjourn the case into the court, there to be heard and determined
- The court must immediately proceed to hear and examine the return.
- If the person to be produced cannot be brought to court because of sickness or infirmity, the
court must be satisfied that such sickness or infirmity is so grave that such person cannot be
produced without danger, before proceeding to hear and dispose of the matter.
- The judge shall disregard matters of form and technicalities in respect to any warrant or order
of commitment of a court or officer authorized to commit by law.
- If the prisoner is in custody under a lawful warrant, the return shall be prima facie evidence of
the cause of restraint. If the prisoner is restrained by any private authority, the return shall be
considered only as a plea of facts, and the party claiming custody must prove such facts.

Appeal
It can be made 48 hours from notice of judgment appealed from by ordinary appeal.

Custody of minors
- A verified petition for the rightful custody of a minor may be filed by any reason claiming such
right.
- The party against whom it may be filed shall be designated as the respondent.
- It shall be filed with the Family Court of the province or city where the petitioner resides or
where the minor may be found. But the SC and CA are not divested of jurisdiction to issue writs
of habeas corpus involving minors. The writ may be 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. The appellate court issuing the writ shall be furnished a copy of the
decision.
- The petition shall be accompanied by a certificate against forum shopping, which the petitioner
must sign personally.
- The hearings on the custody of minors may, at the court’s discretion, be closed to the public
and the records of the case shall not be released to non-parties without its approval.
- The petition shall contain the following:
1. Personal circumstances of the petitioner and respondent;
2. Name, age, and present whereabouts of the minor and the minors relationship to the
petitioner and the respondent;
3. Material operative facts constituting deprivation of custody; and
4. Other matters relevant to the custody of the minor.
- The writ shall be enforceable within the judicial region to which the Family Court belongs.