CHAPTER 3

ESCHEAT (Rule 91)

Definition:
- It is a proceeding whereby the real and personal property of a deceased person
become the property of the State upon his death without leaving a will or legal heirs.
It is not an ordinary action, but a special proceeding, and commenced by petition and
not by complaint.(Municipal Council of San Pedro, Laguna, et.al. v. Colegio de San
Jose, Inc., et.al. , 65 Phil. 318)

Where to file:
RESIDENT – Court of First Instance of last residence
NON-RESIDENT – Court of First Instance of the place where the estate is situated

Requisites for the filing of petition:

1. That a person died intestate;
2. That there is no heirs or persons by law entitled to the same; and
3. The deceased left properties.

*Instance where an escheat proceeding is proper even if the decedent died testate:
Even if the decedent died testate but his will was not allowed to probate, it is as if he died
intestate. In such case, if he has no known heirs and there are no persons entitled to his
property, the same can still be escheated.

Order for hearing (sec. 2)

If the petition is sufficient in FORM and SUBSTANCE, the court shall:
1. Make an ORDER OF HEARING – which date shall not be more than 6 months after
the entry of order; and
2. Direct the publication of a copy of the order – at least once a week for 6 consecutive
weeks.

Hearing and Judgment (sec. 3)

Requisites:
1. Publication of the order;
2. Person died intestate;
3. He is seized of real/personal property in the Philippines;
4. Left no heir or person entitled to such property; and
5. There is no sufficient cause to the contrary.
Assignment of the Property Escheated:
1. If Personal Property, to the municipality or city where he last resided;
2. If Real Property, to the municipality or city where the property is situated;
3. If deceased never resided in the Philippines, to the municipality or city where the
property may be found.

When and by Whom claim to Estate filed (Sec. 4)

Who may file a claim:

 - Any devisee, legatee, heir, widower, or other person entitled thereto.

When to file the claim:

- Within 5 years from the date of judgment, otherwise it will be barred FOREVER.

Doctrine: The five-year period is not a device capriciously conjured by the State to
defraud any claimant; on the contrary, it is decidedly prescribed to encourage
would-be claimants to be punctilious in asserting their claims, otherwise, they may
lose them forever in a final judgment.

Other Actions for Escheat (Sec. 5)

- Actions for reversion or escheat of property alienated in violation of the Constitution
or any statute shall be governed by Rule 91. However, the action shall be instituted in
the province where the land lies in whole or in part.

CHAPTER 4
GUARDIANSHIP
*Rules 92 to 97 of the Rules of Court limit its application only to guardianship of
incompetents who are not minors pursuant to Administrative Circular No. 03-02-05-SC
otherwise known as “The Rule on Guardianship of Minors.”

General Guardianship and Guardianship

Guardianship, definition:
- It is the trust relation of the most sacred character, in which one person, called a
“guardian” acts for another called the “ward” whom the law regards as incapable of
managing his own affairs.
Basis of Guardianship:
ParensPatriae
o The State’s duty of protecting the rights of persons or individuals who because
of age or incapacity are in an unfavorable position vis-à-vis other parties.

Definition of Guardian:
- A person in whom the law has entrusted the custody and control of the person or
estate or both of an infant, insane or other person incapable of managing his own
affairs.

Classification and Kinds of Guardian:

A. According to the scope of powers:
1. General Guardian – one whose responsibility is over the person of the ward or
over his properties.
2. Limited Guardian – one whose responsibility is over the property only.

B. According to the Constitution:

1. General Guardian – (as mentioned above)
 2. Legal Guardian – a person who, without the need of judicial appointment, is
designated as such by provision of law as in the case of parents over the persons
of their children.
3. Guardian ad litem –any competent person appointed by the court to prosecute or
defend a minor, insane or person declared to be incompetent, in an action in court.

VENUE (Rule 92)

Where to institute proceedings (Sec. 1)
Jurisdiction over Guardianship Proceedings:
a. Guardianship Proceedings involving incompetents who are not minors – the RTC
where the incompetent resides has jurisdiction pursuant to the provisions of B.P.
Blg. 129 as amended.
b. Guardianship of minors – Family Court where the minor resides.

Venue of Guardianship Cases:

RESIDENT –the place of residence of the minor or incompetent
NON-RESIDENT – RTC of the place where the property of such minor or incompetent
may be situated.

Meaning of the word “Incompetent” (Sec. 2)

Incompetent includes the following:
1. Persons suffering the penalty of civil interdiction;
2. Hospitalized lepers;
3. Prodigals;
4. Deaf and dumb who are unable to read and write;
5. Those of unsound mind though they may have lucid intervals;
6. Persons not 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.
APPOINTMENT OF GUARDIANS (Rule 93)
Who may petition for appointment of guardian for resident (Sec. 1)
With respect to a minor (SC A.M. No. 03-02-05):
1. Any relative; or
2. Other person on behalf of the minor; or
3. The minor himself if 14 years of age or over; or
4. The Secretary of Social Welfare and by the Secretary of Health in case of an insane
minor who need to be hospitalized.

With respect to incompetent other than a minor (Rules of Court):

1. Any relative; or
2. Friend; or
3. Other person on behalf of the resident incompetent who has no parents or lawful
guardian; or
4. The Director of Health in favor of the insane person who should be hospitalized or in
favor of an isolated leper;
5. Anyone interested in the estate of a non-resident incompetent.
Factors in appointing a Guardian:
1. Financial situation;
2. Physical condition;
3. Sound judgment;
4. Prudence and trustworthiness;
5. Moral character and conduct;
6. The present and past history of a prospective appointee;
7. The probability of his being able to exercise the powers and duties of guardian.

Contents of petition (Sec. 2)

For guardianship over a minor:
1. Jurisdictional facts;
2. The name, age and residence of the prospective ward;
3. The ground rendering the appointment necessary or convenient;
4. The death of the parents of the minor or the termination of deprivation or suspension
of their parental authority;
5. The remarriage of the minor’s surviving parent;
6. The names, ages, and residences of relative within the 4th civil degree of minor and of
person having him in their custody.
7. The probable value, character and location of the property of the minor; and
8. The name, age and residence of the person for whom letters of guardianship are
prayed.

For guardianship over an incompetent who is not a minor:

1. Jurisdictional facts;
2. The incompetency of the person rendering the appointment of a guardian necessary or
convenient;
3. The probable value and character of his estate;
4. The names, ages, and residence of the relative of the incompetent as well as the
persons having him under their care;
5. The names of the person for whom the letters of guardianship.

Opposition to petition (Sec. 4)

Must be in writing; need not be verified
Grounds:
1. Competency of the alleged incompetent;
2. Unsuitability of the person for whom the letters are prayed.

When and How guardian for NON-RESIDENT appointed, Notice (Sec. 6)

- Any relative, friend or anyone interested in the estate of a person liable to be put
under guardianship may file a petition for guardianship over the property of such
person. Notice shall be given through publication or otherwise.

Parents as Guardians (Sec. 7)

Sec. 7 had been modified by the Family Code, Art. 225.

Doctrine: Sec. 7 of rule 93 of the Revised Rules of Court confirms the designation of the
parents as ipso facto guardian of their minor children without the need of a court
appointment and only for good reason may another person be named. (Vancil v. Belmes
GR. 132223)

BONDS OF GUARDIANS (Rule 94)

Bond to be given before issuance of Letters, Amount, Conditions (Sec. 1)
Purpose of the bond:
- For the protection of the property of the minor or incompetent to the end that he may
be assured of an honest administration of his funds.

Bonds to be filed, actions thereon (Sec. 3)

- In case of breach of the bond’s conditions, the bond may be prosecuted in the same
proceeding or in a separate action for the use and benefit of the ward or of any person
legally interested in the estate.

SELLING AND ENCUMBERING PROPERTY OF WARD (RULE 95)

Petition to sell or encumber estate (Sec. 1)

Grounds:
a. When the income of an estate under guardianship is insufficient to maintain the
ward and his family;
b. To maintain and educate the ward when a minor; or
c. When it appears that it is for the benefit of the ward.
Requisites:
a. Petition must be verified
b. Notice must be given to the next of kin; and
c. Hearing so that they may show cause why petition should not be granted.

Order to show cause (Sec. 2)

*Next of kin (definition)
- it does not mean the next of kindered, but the relatives whose relationships are
such as to entitle them to shares in the real estate as distributed. (Lopez v.
Teodoro, etc., 86 Phil. 499)

Note: If no notice is given to the next of kin of the ward, the case will be dismissed. The
notice to the next of kin required by Section 2 of this rule is jurisdictional.
(Singco, et al. v. Longa, et al., 51 Phil. 507)

Hearing on return of order. Costs (Sec. 3)

- the court shall hear the proofs and allegations of the petitioner and next of kin
at the designated time and place, together with their witnesses, and grant or
refuse the prayer of the petition as the nest interests of the ward require.
Contents of order and how long effective. Bond (Sec. 4)
- The order of sale must specify the grounds.
- Sale must first be confirmed by the court, and that until such confirmation, not
even equitable title passes.
Duration:
Within one (1) year from the granting of the order.
Bond:
- 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.

Investment of proceeds and direct management of estate (Sec. 5)

- The court may authorize and require the guardian to invest the proceeds of the
sale or encumbrances.

GENERAL POWERS AND DUTIES OF GUARDIANS (RULE 96)

1. Have the care and custody of the person of the ward, and the management of his
estate, or the management of the estate only, as the case may be (Sec. 1);
2. Pay the debts of ward (Sec. 2);
3. Settle accounts, collect debts and appear in actions for ward (Sec. 3);
4. Manage the estate of the ward frugally, and apply the proceeds to maintenance of
the ward (Sec. 4);
5. May be authorized to join in partition proceedings after hearing (Sec. 5);
6. Render verified inventory within three months after his appointment and annually
thereafter upon application of interested persons (Sec. 7);
7. Must present his account to the court for settlement and allowance (Sec. 8).

Note: A guardian just like a trustee, is prohibited under Art 736 of the Civil Cold from
making donation of the properties entrusted to him (Araneta v. Perez, L-18872,
July 15, 1966).

TERMINATION OF GUARDIANSHIP (RULE 97)

Petition and Proceedings that competency of ward be adjudged (Sec. 1)
Who may file:
1. Person who has been declared incompetent;
2. His guardian;
3. Relative; or
4. Friend.
Grounds for termination:
1. Competency of the ward has been judicially determined;
2. Guardianship is no longer necessary;
3. Death of guardian;
 4. Death of ward.
Who may oppose:
1. Guardian;
2. Relative of the ward; or
3. Any other person, in the discretion of the court.

When guardian removed or allowed to resign. New appointment (Sec. 2)

Grounds for removal of a guardian:
1. Insanity;
2. Incapability or unsuitability to discharge functions;
3. Wastage or mismanagement of the property of the ward; and
4. Failure to render an account or make a return within 30 days after it was due.
Resignation
- The guardian may file a petition before the guardianship court for permission
to resign is trust, stating the grounds therefore, and accompanied by a report
of the state of his account and an offer to settle the account and deliver the
estate over the court

Other termination of guardianship (Sec. 3)

- The emancipation under this rule is repealed which is governed by R.A. No.
6809 in connection with Articles 234 and 236 of the Family Code.

Record to be kept by the justice of the peace or municipal judge (Sec. 4)

Service of judgment (Sec. 5)

- 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.

Doctrine: In custody disputes, it is axiomatic that the paramount criterion is the welfare
and well-being of the child. In arriving at its decision as to whom custody of the
minor should be given, the court must take into account the respective resources
and social and moral situations of the contending parents.

RULE ON GUARDIANSHIP OF MINORS

(A.M. No. 03-02-05-SC, effective May 1, 2003)

Applicability of the rule (Sec. 1)

1. Petitions for guardianship over the person or property; and
2. Petitions for guardianship over the person and the property.

* The father and the mother shall jointly exercise legal guardianship over the person and
property of their minor without the necessity of a court appointment.

Who may petition (Sec. 2)

 1. Any relative; or
2. Other person on behalf of a minor; or
3. The minor himself if 14 years of age or over; or
4. The Secretary of Social Welfare and Development; and
5. The Secretary of Health in case of an insane minor who needs to be hospitalized.

Where to file petition (Sec. 3)

1. Family Court of the province or the city where the minor actually resides.
2. If he resides in a foreign country, with the Family Court of the Province or city
where his property or any part thereof is situated.

Grounds for petition (Sec. 4)

1. Death, continued absence, or incapacity of his parents;
2. Suspension, termination or deprivation of parental authority;
3. Remarriage of his surviving parent, if the latter is found unsuitable to exercise
parental authority;
4. When the best interests of the minor so require.

Qualifications of guardians (Sec. 5)

1. Moral character;
2. Physical, mental and 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
the guardianship;
6. Lack of conflict of interest with the minor;
7. Ability to manage the property of the minor.

Order of preference (Sec. 6)

1. The surviving grandparent and in case several grandparents survive, the court
shall select any of them taking into account all relevant considerations;
2. The oldest brother or sister of the minor over twenty one years of age, unless unfit
or disqualified;
3. The actual custodian of the minor over twenty-one years of age, unless unfit or
disqualified; and
4. Any other person, who in the sound discretion of the court would serve the best
interests of the minor.

Contents of petition (Sec. 7)

1. The jurisdictional facts;
2. The name, age and residence of the prospective ward;
1. The ground rendering the appointment necessary or convenient;
3. The death of the parents of the minor or the termination, deprivation or
suspension of their parental authority;
4. The remarriage of the minor’s surviving parent;
 5. The names, ages, and residences of relatives within the 4th civil degree of minor,
and of persons having him in their care and custody;
6. The probable value, character and location of the property of the minor, and the
name, age and residence of the person for whom letters of guardianship are
prayed.

Time and notice of hearing (Sec. 8)

- Notice must be given to persons named in the petition and to the minor if over 14
years of age
* Note:Notice to a minor who is above 14 year old is jurisdictional. Non-
compliance with this renders the proceedings null and void.

Case study report (Sec. 9)

- The court shall order a social worker to conduct a case study of the minor and all
prospective guardians and submit his report and recommendation (3 days before
hearing) to the court for its guidance before the scheduled hearing.

Opposition to petition (Sec. 10)

Petition:
1. Must be in writing;
2. Need not to be verified.
Grounds for opposition:
1. Majority of alleged minor;
2. Unsuitability of the person for whom letters are prayed.
Contents of opposition to the petition:
1. Ground relied upon;
2. Prayer that the petition be denied; or
3. Prayer that letters of guardianship issue to himself or to any suitable
person named in the opposition.

Hearing and order for letters to issue (Sec. 11)

- 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.

When and how a guardian of the property for non-resident minor is appointed;
notice (Sec.12)
- Any relative or friend of such minor, or anyone interested in the property may
petition for the appointment of a guardian over the property. Notice of hearing
shall be given to the minor by publication or any other means.

Bond of guardian; amount; conditions (Sec. 14)

Conditions in filing a bond:
1. 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;
2. 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;
3. 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
4. To perform all orders of the court and such other duties as may be required
by law.

Bond of parents as guardians of property of minor (Sec. 16)

- The parents shall post a bond if the market value of the child’s properties
or income exceeds Php 50,000.00 and the bond shall not be less than 10%
of the value of the properties or income.
Reason:
To guarantee the performance of the obligations prescribed for general
guardians.

*Note: As the natural guardian of the minor under parental authority, parents have
the power to administer his property. Administration includes all acts for
the preservation of the property and the receipt of fruits according to the
natural purpose of the thing. Any act of disposition or alienation, or any
reduction in the substance of the patrimony of the child, exceeds the limits
of administration.

General duties of the guardian (Sec. 17)

*refer to Rule 96

Petition to sell or encumber property (Sec. 19)

Grounds:
a. When the income of estate is insufficient to maintain and educate ward
when a minor; or
b. When it appears that it is for the benefit of the ward.

*Note: The authority to sell or encumber shall not extend beyond one year, unless
renewed by the court.

Grounds for removal or resignation of guardian (Sec. 24)

Guardian:
1. Becomes insane or otherwise incapable of discharging his trust;
2. Is found thereafter to be unsuitable;
 3. Has wasted or mismanaged the property of the ward;
4. Has failed to render an account or make a return 30 days after it was due;
5. The court may allow the guardian to resign for justifiable causes.

*Note:
a. Upon the removal or resignation of the guardian, the court shall appoint a
new one.
b. 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.

Grounds for termination of guardianship (Sec. 25)

a. The ward has come of age;
b. The ward has died.

RULE 98. TRUSTEES

What is Trust?
It is a judiciary relationship concerning property whereby confidence is reposed upon for
a person who holds legal title over the property and details with it for the benefit of another.

Concept of Trust :
In special proceeding a trust is a confidence reposed n one person called TRUSTEE, for
the benefit of another, called the CESTUI QUE TRUST, with respect to property held by the
former of the benefit of the latter.
Cestui Que Trust- is the person entitled to an equitable , as opposed to a legal, estate. If land is
granted to the use of A in trust for B, A is cestui que trust. And B is the trustee or use.
 Trustor- a person creating the trust.
 Trustee- a person whom confidence is reposed as regards to property for the benefit of
another. It has legal title to the property.
There are TWO KINDS OF TRUST:
 EXPRESS TRUST- is one created by the direct and positive acts of the parties, by some
writing or deed , will or by the words evidencing an Intention to create trust.
 IMPLIED TRUST- is one 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.

In Rule 98 it DOES NOT APPLY IMPLIED TRUST. Only Express Trust, one which is
created by a will or written instrument.

3 KINDS OF TRUSTEES COMPTEMPLATED UNDER RULE 98.

 Trustee under will- trust created in the will , it is by virtue of the provision of a will.
 Trustee upon written instrument- there is an instrument creating the trust. It could
be in form of an inoperative will. Inoperative will means that the will is not
operative because the grants and bequest are contrary to existing laws. If ever the
written instrument already provides for substitution of a trustee, there is no need to
 go to the court under Rule 98. But if there is none that is the time you go to the court
and apply for the appointment of a trustee in whose place he is substituted.
 Trustee appointed abroad- If the property is found in the Philippines and the trust
is for the benefit of the Philippines residents. The trustee will derive his authority
from without the Philippines concerning properties in the Philippines in trust for
Philippine residents. It requires judicial appointment from the court before he can
execute the trust.

When is trustee necessary? A trustee is necessary;

A. To carry into effect a will where the testator omitted appointing a trustee in the
Philippines.
B. To carry into effect other written instrument where the trustee declines, resigns, dies ,
or removed before the accomplishment if trust.

Who may appoint the Trustee?

 If the will has already been probated , then the probate court can proceed to
appoint the trustee.
 If the property is located somewhere else, it is the RTC of the place where the
property or portion thereof is located.
What are the powers of the Trustee?
He has the same powers in whom the estate shall vest. It is as if he has appointed by the
testator himself. If the trustee’s executor is named as successor to the trust, that the person nee
dnot be accepted, He is compelled to accept the trust.
May a trustee buy property held in trust by him?
No, he cannot do so whether by purchase , even in public or judicial action, either in
person Or through the mediation of another. It is well-entrenched rule that a trustee shall not be
allowed to take ADVANTAGE for himself of trust property under the pretense of serving the
beneficiary.
Is a trustee required to post a bond?
Yes, before entering on the duties of his trust .The trustee shall file a bond with court
having jurisdiction over trust. The trustee’s bond is fixed by the court. And if it is not filed within
the period stipulated or provided, then it is tantamount to a refusal or resignation of the trust.
Exception to the filling of the bond is when the testator himself exempts the trustee from filling a
bond. But the exception here may be cancelled by the court anytime .
Removal of Trustee? To File a PETITION.
Who should file the Petition? Executor, Administrator, Person appointed as a trustee in the will.
Who should file? The parties beneficially interested and after due notice to the trustee and
hearing
GROUNDS FOR REMOVAL :
Appears essential in the interests of the petitioners;
Insane;
Otherwise incapable of discharging his trust or Evidently unsuitable.
Can a trustee Acquire property by prescription?
No, the general rule is that an action to compel a trustee to convey property registered in
his name in trust for benefit of the Cestui Que Trust does not prescribe. The trustee’s possession
is not adverse and therefore, cannot ripen into a title of prescription.
 ADOPTION
It is defined as a juridical act, a proceeding in rem, which creates between two persons a
relationship similar to that which results from legitimate paternity and filiation.
Only an adoption made through the court is valid in this jurisdiction. It is not a natural law at all,
but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly
carried out; otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but
must be affirmatively proved by the person claiming its existence, such as by the decree of adoption
issued by the court.
The main purpose of adoption is the promotion of the welfare of the children. It is settled that
adoption statutes, as well as matters of procedure leading to adoption should be liberally construed to
carry out the beneficent purposes of the adoption institution and to protect the adopted child in the
rights and privileges coming to it as a result of the adoption.
Who may adopt
(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal
rights, of good moral character, has not been convicted of any crime involving moral
turpitude, emotionally and psychologically capable of caring for children, at least sixteen
(16) years older than the adoptee, and who is in a position to support and care for
his/her children in keeping with the means of the family. The requirement of sixteen
(16) year difference between the age of the adopter and adoptee may be waived when
the adopter is the biological parent of the adoptee, or is the spouse of the adoptees
parent;
(b) Any alien possessing the same qualifications as above stated for Filipino
nationals: Provided, That his/her country has diplomatic relations with the Republic of
the Philippines, that he/she has been living in the Philippines for at least three (3)
continuous years prior to the filing of the application for adoption and maintains such
residence until the adoption decree is entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate government agency that he/she has the
legal capacity to adopt in his/her country, and that his/her government allows the
adoptee to enter his/her country as his/her adopted son/daughter: Provided,
further, That the requirements on residency and certification of the aliens qualification
to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th)
degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino
spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with
his/her spouse a relative within the fourth (4th) degree of consanguinity or
affinity of the Filipino spouses; or

(c) The guardian with respect to the ward after the termination of the guardianship and
clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:
 (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,
however, That the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other,
joint parental authority shall be exercised by the spouses.
Who may be adopted
(a) Any person below eighteen (18) years of age who has been administratively or judicially
declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of
legitimacy;
(d) A person of legal age if, prior to the adoption, said person has been consistently considered
and treated by the adopter(s) as his/her own child since minority;
(e) A child whose adoption has been previously rescinded; or
(f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall
be initiated within six (6) months from the time of death of said parent(s).

Rescission and revocation of adoption

Section 1.Who may file petition; grounds. — A minor or other incapacitated person may, through a
guardian or guardian ad litem, petition for the rescission or revocation of his or her adoption for the
same causes that authorize the deprivation of parental authority.
The adopter may, likewise, petition the court for the rescission of revocation of the adoption in any of
these cases:
(a) If the adopted person has attempted against the file of the adopter;
(b) When the adopted minor has abandoned the home of the adopter for more than
three (3) years;
(c) When by other acts the adopted person has repudiated the adoption.
Section 5.Time within which to file petition. — A minor or other incapacitated person must file the
petition for rescission or revocation of adoption within the five (5) years following his majority, or if he
was incompetent at the time of the adoption, within the five (5) years following the recovery from such
incompetency.

Jurisdiction and venue over domestic adoption cases

A person desiring to adopt another or have the custody of a minor shall present his petition to
the Court of First Instance of the province, or the municipal or justice of the peace court of the city or
municipality in which he resides.
In the City of Manila, the proceedings shall be instituted in the Juvenile and Domestic Relations
Court. (Rule 99, sec 1)
Jurisdiction and venue over inter-country adoption
A verified petition to adopt a Filipino child may be filed by a foreign national or Filipino citizen
permanently residing abroad with the family court having jurisdiction over the place where the child
resides or may be found. It may be filed directly with the inter-country adoption board.
Inter-country adoption
 According to the inter-country adoption act of 1995, it is a socio-legal process of adopting a
Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed,
the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines.
Written consent
After being properly counseled and informed of his/her right to give or withhold his/her
approval of the adoption, the written consent of the following to the adoption is hereby required:
1. The adoptee, if ten years of age or over;
2. The biological parents of the child, if known, or the legal guardian, or the proper
government instrumentality which has legal custody of the child;
3. The legitimate and adopted sons/daughters, ten years of age or over, of the adopters and
adoptee, if any;
4. The illegitimate sons/daughters, ten years of age or over, of the adopter if living with said
adopter and the latter’s spouse, if any; and
5. The spouse, if any, of the person adopting or to be adopted.
The written consent of the biological parents is indispensable for the validity of a decree of
adoption. Indeed, the natural right of a parent to his child is requires that his consent must be obtained
before his parental rights and duties may be terminated and re-established in the adoptive parents.
However, it is not necessary if the subject of adoption is deemed as an abandoned child. An abandoned
child is a child who has no proper parental care or guardianship, or whose parents have deserted
him/her for a period of at least three continuous months, which include foundling.
In this case, certification from the DSWD stating that the child is legally available in a domestic
adoption and in an inter-country adoption proceeding is needed.
Section 3.Consent of adoption. — There shall be filed with the petition a written consent to the adoption
signed by the child, if fourteen years of age or over and not incompetent, and by the child's spouse, if
any, and by each of its known living parents who is not insane or hopelessly intemperate or has not
abandoned such child, or if there is no such parents by the general guardian or guardian ad litem of the
child, or if the child is in the custody of an orphan asylum, children's home, or benevolent society or
person, by the proper officer of such asylum, home, or society, or by such person; but if the child is
illegitimate and has not been recognized, the consent of its father to the adoption shall not be required.
If the person to be adopted is of age, only his or her consent and that of the spouse, if any, shall be
required.
Legal effects of an adoption decree
1. Sever all legal ties between the biological parents and the adoptee, except when the
biological parent is the spouse of the adopter;
2. Deem the adoptee as a legitimate child of the adopter; and
3. Give adopter and adoptee reciprocal rights and obligations arising from the relationship of
parents and child, including but not limited to; (i) the right of the adopter to choose the
name the child is to be known; and (ii) the right of the adopter and the adoptee to be legal
and compulsory heirs of each other.
Husband and wife jointly adopt
As a rule, husband and wife shall jointly adopt, except in the following cases:
1. If one spouse seeks to adopt the legitimate son/daughter of the other; or
2. If one spouse seeks to adopt his/her own illegitimate son/daughter: provided, however, that
the other spouse has signified his/her consent thereto; or
3. If the spouses are legally separated from each other.
Guidelines in the petition for adoption
1. A lawyer prepares the petition for the person/s who want/s to adopt. The petition includes
documents like birth certificates, marriage certificate, proof of financial capacity (such as
 ITR, bank deposit, etc.), clearances (barangay, police, NBI, fiscal, court), and others as proof
of good moral character, good health, etc.
2. Upon payment of the filing or docket fee, the petition is raffled to a family court (of the city
nearest to the place where the petitioner resides). If the petition is sufficient in form and
substance, the court issues an order, usually within a month after the filing of the petition,
setting the case for initial hearing and ordering the court social worker to conduct a case
study and home visit.
3. The court order is published in a newspaper of general circulation once a week for three
weeks. The newspaper is chosen by raffle conducted by the office of the clerk of court, in
compliance with a Supreme Court circular.
4. Before the initial hearing, the social worker conducts a case study and home visit. The social
worker submits his investigation report and recommendations to the court before the initial
hearing.
5. On the date of the initial hearing, the petitioner and the prospective adoptee must be
present. The lawyer presents what are known jurisdictional facts (petition, proof of
publication in newspaper, notice to the office of the solicitor general, etc.).
6. If there is no opposition to the petition for adoption by any party, then the lawyer asks the
court permission for an ex partepresentation of evidence, done only before the court
stenographer and the court appointed commissioner (the branch clerk of court). The court,
however, can require presentation of evidence in open court.
7. If the court decision is favorable and there is no appeal by any party, then the court issues a
certificate of finality. The lawyer then coordinates with the local civil registrar (of the town
or city where the court is located, and the adoptee’s birthplace) and the national statistics
office for the issuance of a new birth certificate bearing the petitioner’s surname.
Cases
Petition for adoption of Michelle P. Lim
G.R. Nos. 168992-93, May 21, 2009
Issue:
whether or not petitioner, who has remarried, can singly adopt.
Ruling:
It is undisputed that, at the time the petitions for adoption were filed, petitioner had already
remarried. She filed the petitions by herself, without being joined by her husband Olario. We have no
other recourse but to affirm the trial courts decision denying the petitions for adoption. Dura lexsedlex.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,
however, That the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate
son/daughter of the other, joint parental authority shall be exercised by the spouses.
The use of the word shall in the above-quoted provision means that joint adoption by the husband and
the wife is mandatory. This is in consonance with the concept of joint parental authority over the child
which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is
but natural to require the spouses to adopt jointly. The rule also insures harmony between the
spouses.[12]

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions
for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner
herself, without joining her husband, Olario, the trial court was correct in denying the petitions for
adoption on this ground.
Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the
children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second,
the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not
legally separated from each other.

Landingin vs. Republic

G.R. No. 164948, June 27, 2006
Issue:
Whether or not financial capability to support the adoptee is a factor in adoption
Ruling:
The adopterclaims that she is financially capable as she has worked in Guam for 14 years, has
savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her
children and siblings have likewise committed themselves to provide financial backing should the need
arise. The OSG, again in its comment, banks on the statement in the Home Study Report that petitioner
has limited income. Accordingly, it appears that she will rely on the financial backing of her children and
siblings in order to support the minor adoptees. The law, however, states that it is the adopter who
should be in a position to provide support in keeping with the means of the family.

Since the primary consideration in adoption is the best interest of the child, it follows that the financial
capacity of prospective parents should also
be carefully evaluated and considered. Certainly, the adopter should be in a position to support the
would-be adopted child or children, in keeping with the means of the family.

According to the Adoption Home Study Report[49] forwarded by the Department of Public Health &
Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting her
legitimate children, as the latter are already adults, have individual lives and families. At the time of the
filing of the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning
$5.15 an hour and tips of around $1,000 a month. Petitioners main intention in adopting the children is
to bring the latter to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is
still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the
adoption proceedings.

Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the
financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather of
age. While petitioner claims that she has the financial support and backing of her children and siblings,
the OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as
adoption only creates a legal relation between the former and the latter. Moreover, the records do not
prove nor support petitioners allegation that her siblings and her children are financially able and that
they are willing to support the minors herein
Isabelta S. Lahom vs. Jose Melvin Sibulo
G.R. 143989, July 14, 2003
Issue:
Whether or not the refusal of the adoptee to change his surname from Sibulo to Lahom is a
ground for rescission and revocation of adoption
Ruling:
Section 19 of Article VI of R.A. No. 8552 now reads:
SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with the assistance of the
Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the
adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated
physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt
on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with
parental obligations.
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.
While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind the
adoption decree even in cases where the adoption might clearly turn out to be undesirable, it remains,
nevertheless, the bounden duty of the Court to apply the law. Dura lexsedlex would be the hackneyed
truism that those caught in the law have to live with. It is still noteworthy, however, that an adopter,
while barred from severing the legal ties of adoption, can always for valid reasons cause the forfeiture of
certain benefits otherwise accruing to an undeserving child. For instance, upon the grounds recognized
by law, an adopter may deny to an adopted child his legitime and, by a will and testament, may freely
exclude him from having a share in the disposable portion of his estate.
The Rule on Custody of Minors and the Writ of Habeas Corpus in Relation To custody of Minors.
Requisites for the valid grant of the writ where rightful custody over a minor is withheld from a person
lawfully entitled there in are as follows ;
 The petitioner for has the right of custody over the minor child
 The rightful custody over the minor is being withheld by the respondent
 That serves the best interest of the minor child to be in the custody of the petitioner rather than
with the respondent.
Who may file the Petition for the rightful custody of a minor?
- A verified petition for rightful custody of a minor may be filed by any person claiming such right.
Where o file the petition?
- The petition for custody of minors shall be filed with the Family Court of the Province or the city
where the petitioner resides or where the minor may be found.
What are the contents of the petition?
- The personal circumstances of the petitioner and of the respondent
- The name,age, and present whereabouts of the minor and his or her relationship to the petitioner
and the respondent;
- The material operative facts constituting deprivation of custody; and
- Such other matters which are relevant to the custody of the minor.
The verified petition shall be accompanied by certificate against forum shopping which the petitioner
must sign personally.
Is the filing of a motion to dismiss allowed?
- No, except on the ground of lack of jurisdiction over the subject matter or over the parties.
What is the period to file an answer to the petition?
 - The respondent shall file a petition, personally verified by him within five days after service of
summons and a copy of petition. Upon the filling of the verified answer to file it, the court my
order a social worker to make a case study of the minor and parties to submit a report and
recommendation to the court at least three days before the sched. Pre trial.
Is Pre- Trial Mandatory?
Yes, within 15 days after filing of the answer or the expiration of the period to file an answer, the
court shall issue an order;
- Fixing a date for the pre-trial conference.
- Directing the parties to file and serve their respective pre-trial briefs in such manner as shall
ensure receipt thereof by adverse party at least three days before the date of the Pre-trial.
- Requiring the respondent to present the minor before the court.
If the petitioner fails to appear at the Pre-Trial the case shall be dismissed. Exception : His counsel or a
duly authorize representative appears in court and proves a valid excuse for the non-appearance of the
petitioner.

What may done during the Pre-Trial?

Parties may agree on the custody of the minor. If the parties fail to agree , the court may refer
the matter to a mediator who shall have five days to effect an agreement the Parties.
May the Court issue a provisional order?
Yes , after an answer has been filed or after expiration of the period to file it, the court may issue
a provisional order awarding custody of the minor. As far as practicable, the following order of preference
shall be observed in the award of custody.
- Both parents jointly
- Either parent , taking into account all relevant considerations , especially the choice of the minor
over seven years of age and sufficient discernment, unless the parent chosen is unfit
- The grandparent, or if there are several grandparents, the grandparent chosen by the minor over 7
years and of sufficient discernment, unless the grandparent chosen is unfit or disqualified.
- The eldest brother or sister over 21 years of age,unless he or she is unfit or disqualified.
- The actual custodian of the minor over twenty one years of age, unless the former is unfit or
disqualified or
- Any other person or institution the court may deem suitable to provide the care and guidance for
the minor.
What are the factors to be considered in determining custody?
In awarding custody, the court shall consider the best interests of the minor and shall give
paramount consideration to his material and moral welfare.
What is Best interests of the minor means?
-The best interest 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 of development of the minor.
Factors to consider In determining custody.
- Any extrajudicial agreement which the parties may have bound themselves to comply with the
respecting the rights of the minor to maintain direct contract 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 interest of minors.
- The desire and ability of one parent to foster an open loving relationship between the minor and
the other parent.
- The health , safety and welfare of the minor.
- Any history of the child or spouse abuse by the person seeking custody or who has had any filial
relationship with the minor, including anyone courting the parent.
- The nature and frequency of contact with both parents;
 - Habitual use of alcohol , dangerous drugs or regulated substances;
- Marital misconduct
- The most suitable physical, emotional, spiritual, psychological and educational environment for
the holistic development and growth of the minor, and
- The Preference of the minor over seven years and of sufficient discernment unless the parent
chosen is unfit.
May the court Grant Temporary visitation rights?
Yes. The court shall provide in its order awarding provisional custody appropriate visitation
rights to non-custodial parent or parents, unless the court finds said parent or parents unfit or
disqualified.
What must the temporary custodian in case of change of Residence?
Give the court and non custodial court parent or parents at least 5 day notice of any plan to
change the residence of the minor of take him out of his residence for more than 3 days.
May the court issue a hold departure order if a minor child is subject of the petition shall be
brought out of the country?
Yes. The minor child subject of the petition shall not be brought out of the country without prior
order from the court while the petition is pending. The court, motu proprio, or upon application under
oath , may issue ex parte a hold departure order, addressed to the Bureau of Immigration and
deportation, directing it not to allow the department of the minor from the Philippines without the
permission of the court. The court may issue a protection order requiring any persons.
Who may be appointed , if both parties are unfit, to have the custody 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 older brother or sister, any
reputable person to take charge of such minor or commit him to any suitable home for children.
Who may be ordered to give support, maintenance and education?
Court may order either or both parents , irrespective of who may be its custodian.
What are the basis in determining the amount of support?
 Financial resources of the custodial and non-custodial parent and those of the minor
 Physical and emotional health, special needs and aptitude of the minor;
 Standard of living the minor has been accustomed to and
 Non- monetary contributions that the parents would maker toward the care and well being of
the minor.
Is an appeal allowed under the rule?
Yes, but no appeal from the decision shall be allowed unless the appellant has filed a motion for
reconsideration or new trial within 15days from notice of judgment.
When must the appeal be filed?
Within 15 days from notice of the denial of the motion for reconsideration or new trial.
Where shall the petition for writ of habeas corpus involving custody of minor be filed?
Family court, Regular courts in place where there are no Family Courts, Supreme Court, and
Court of Appeals.
When shall the family court decide on the issue of Custody of minors?
Upon the return of the WRIT.

RULE 102
HABEAS CORPUS

The writ of habeas corpus is a writ 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.

Section 1. To what cases does habeas corpus extend?

THE WRIT OF HABEAS CORPUS MAY BE OBTAINED IN TWO INSTANCES:
1. cases of illegal confinement or detention by which a person is deprived of his liberty; and
2. cases by which the rightful custody of the person is withheld from the person entitled thereto.

Actual physical restraint is not required; any restraint which will prejudice freedom of action is sufficient.

The Writ may be allowed as a post-conviction remedy when the proceedings leading to the
conviction were attended by any of the following circumstances:
1. There has been a deprivation of a constitutional right resulting in restraint of person;
2. The court had no jurisdiction to impose the sentence;
3. An excessive penalty has been imposed, the sentence being void as to the excess;
4. Where the law is amended, as when the penalty is lowered.

NATURE
Alimpoos v. CA, 106 SCRA 159 (1981)
Petition for habeas corpus is LIKE A PROCEEDING IN REM because it is an inquisition by the
government, at the suggestion and instance of an individual, most probably, but still in the name and
capacity of the sovereign. It is also instituted for the purpose of fixing the status of a person and that there
can be no judgment entered against anybody since there is no real plaintiff and defendant.

PURPOSE
Moncupa v. Enrile, 141 SCRA 233 (1986)
The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a person there from if such restraint is illegal.
Manguila v Judge Pangilinan - is has been ruled that the object of the Writ of Habeas Corpus is to
inquire into the legality of detention and if the detention is found to be illegal, to require the release of the
detainee

GROUNDS FOR SUSPENSION OF THE WRIT UNDER THE CONSTITUTION:

1. invasion, when public safety requires;
2. rebellion, when public safety requires.

IN CASES OF ILLEGAL CONFINEMENT OR DETENTION

GENERAL RULE. The release, whether permanent or temporary, of a detained person renders the
petition for habeas corpus moot and academic.
EXCEPTION: When there are restraints attached to his release which precludes freedom of action, in
which case the court can still inquire into the nature of his involuntary restraint. (Villavicencio v. Lukban,
supra)

VOLUNTARY RESTRAINT
GENERAL RULE: Writ not available if restraint is voluntary.
EXCEPTION: Writ will lie to enable the parents (or person having substituted parental authority) to
recover custody of a minor child although she is in the custody of a 3rd person on her own volition.
Voluntariness is viewed from the point of view of the person entitled to custody.

WHEN PETITION FOR HABEAS CORPUS NOT PROPER:

1. for asserting or vindicating denial of right to bail;
2. for correcting errors in appreciation of facts/appreciation of law.

Habeas Corpus can never be a substitute for appeal.

Galvez, et.al. v. CA, et.al., 237 SCRA 685 (1994)
Whether the petition for the writ of habeas corpus may be properly filed together with the petition
for certiorari and mandamus.
The Court ruled that the writs of habeas corpus and certiorari may be ancillary to each other where
necessary to give effect to the supervisory powers of the higher courts. A writ of habeas corpus reaches
the body and the jurisdictional matters, but not the record. A writ of certiorari reaches the record but not
the body. Hence, a writ of habeas corpus may be used with the writ of certiorari for the purpose of review.
However, habeas corpus does not lie where the petitioner has the remedy of appeal or certiorari because
it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing
mere errors or irregularities in the proceedings of a court having jurisdiction over the person and the
subject matter. The person on bail is not entitled to habeas corpus because his detention is legal and
technical.

Section 2. Who may grant the writ

The RTC, CA and SC have concurrent jurisdiction to issue writs of habeas corpus. The MTC can issue
the writ in case there is no available RTC judge. Hierarchy of courts is not observed.
Sandiganbayan may issue writs of habeas corpus only if it is in aid of its appellate jurisdiction.

GIATE COUR
JURISDICITON IN CASES OF HABEAS CORPUS WITH RESPECT TO CUSTODY OF MINORS
Although the Family Court where the petitioner resides or where the minor may be found has exclusive
and original jurisdiction to hear petitions for habeas corpus with respect to custody of minors, the
Supreme Court and the Court of Appeals can take cognizance of such petition in order that it can be
enforceable within the Philippines. However, the return can be heard in the FC/RTC (if there is no FC in
the judicial region) and there is no need to file a separate petition for custody because the issue can be
ventilated in the petition for writ.

REQUISITES FOR THE ISSUANCE OF THE WRIT IN CASES WHERE THE RIGHTFUL CUSTODY
OVER THE PERSON OF A MINOR IS WITHHELD FROM THE PERSON ENTITLED THERETO:
1. that the petitioner has the right to the custody over the minor;
2. that the rightful custody of the minor is being withheld from the petitioner by the respondent;
3. that it is to the best interest of the minor concerned to be in the custody of the petitioner and not that of
respondent. (Sombong v. CA, January 31, 1996)

Section 3. Requisites of application therefor

VERIFIED PETITION MUST SET FORTH:
1. that the person in whose behalf the application is made is imprisoned or restrained of his liberty;
2. The officer or name of the person by whom he is imprisoned or restrained;
3. Place where he is imprisoned or restrained, if known;
4. Copy of the commitment or cause of the detention, if it can be procured without impairing the efficiency
of the remedy (if no legal authority for imprisonment, such fact shall appear).

Section 4. When writ not allowed or discharge authorized

1. If the person is in custody of an officer under process issued by a court or by virtue of a judgment or
order of a court of record which has jurisdiction to issue the process, render the judgment or make the
order
2. If jurisdiction appears after the writ is allowed;
3. If the person is charged with or convicted of an offense in the Philippines

Supervening Events May Bar Release

Even if the arrest of a person is illegal, supervening events may bar release or discharge from custody.
What is to be inquired into is the legality of detention as of, at the earliest, the filing of the application for
the writ of habeas corpus. (Velasco vs. CA, July 7, 1995).

Section 5. When the writ must be granted and issued

PRELIMINARY CITATION
Where a person detained under governmental authority and the illegality of his detention is not patent
from the petition for the writ, the court may issue a citation to the government officer having the person in
her/his custody to show cause why the writ should not issue.
PEREMPTORY WRIT
It is issued when the cause of detention appears to patently illegal and the non-compliance therewith is
punishable

Section 6. To whom writ directed, and what to require

DIRECTED TO OFFICER AND COMMANDS HIM TO:
1. Produce the body of person before the court ;and
2. Show cause of the imprisonment or restraint.

Section 7. How prisoner designated and writserved

Section 8. How writ executed and returned
1. Convey the person so imprisoned before the judge, unless from sickness or infirmity such person
cannot, without danger brought before the court.
2. Make the return of the writ together with the day and the cause of caption or restraint.

Section 9. Defect of form

NO WRIT CAN BE DISOBEYED FOR DEFECT IN FORM IF IT SUFFICIENTLY STATES:
1. Person In whose custody or under whose restraint is held; and
2. Court or judge before whom he is to be brought.

Section 10. Contents of return

(a) Whether he has or has not the party in his custody or power , or under restraint;
(b) If he has the party in his custody or power or under restraint, the authority and the true and whole
cause thereof, set forth at large, with a copy of the writ, order, execution , or other process, if any, upon
which the party is held;
(c) If the party in his custody or power or is restraint by him, and is not produced, particularly the nature
and gravity o f the sickness or infirmity of such party by reason of which he cannot, without danger, be
brought before the court or judge;
(d) If he has had the party in his custody or power, or under restraint , and has transferred such custody
or restraint to another, particularly to nwhom, at that time, for what cause , and by what authority such
transfer was made.

Section 11. Return to be signed and sworn to

Section 12. Hearing on return; Adjournments
Section 13. When the return evidence, and when only a plea
If detention is by public authority, the petitioner has burden of proof to show that the restraint was illegal.
If the detention is by reason of private authority, the return is considered only a plea of the facts asserted
therein and the person responsible for the detention has the burden of proof to establish that the
detention is legal and justified.

Section 14. When person lawfully imprisoned recommitted, and when let to bail
Section 15. When prisoner discharged if no appeal
If one is unlawfully imprisoned, court shall order his discharge 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 person
detaining him does not appeal, the prisoner shall be released.

PERIOD OF APPEAL
Within 48 hours from notice of the judgment or final order appealed from (Section 39 BP 129). Form of
appeal is NOTICE OF APPEAL.

Section 16. Penalty for refusing to issue writ, or for disobeying the same
Section 17. Person discharged not to be again imprisoned
We hold that such a reservation is repugnant to the government of laws and not of men principle. Under
this principle, the moment a person is acquitted on a criminal charge he can no longer be detained or
rearrested for the same offense. (Moncupa vs. Enrile,)

Section 18. When prisoner may be removed from one custody to another
1. By legal process;
2. Prisoner is delivered to an inferior officer to carry to jail;
3. By order of proper court or judge directing that he be removed from one place to another within the
Philippines for trial;
4. In case of fire, epidemic, insurrection or other necessary or public calamity.
Section 19. Record of writ, fees and costs
When does court acquire jurisdiction over person of respondent?
The writ itself plays the role of summons in ordinary actions; court acquires jurisdiction over the person of
the respondent BY MERE SERVICE OF WRIT.
.
RULE ON CUSTODY OF MINORS AND WRIT OF HABAES CORPUS I
N RELATION TO THE CUSTODY OF MINORS (A.M. No.03-04-04-SC)

WHO MAY FILE PETITION?(Sec. 2)

A verified petition for the rightful custody of a minor may be filed by any person claiming such right.
WHERE TO FILE PETITION?
Family courts in the province or city where the petitioner resides or where the minor may be found.

CONTENTS OF A VERIFIED PETITION (Sec. 4)

1. The personal circumstances of the petitioner and respondent;
2. The name, age and present whereabouts of the minor and his or her relationship to the petitioner or
respondent;
3. The material operative facts constituting deprivation of custody;
4. Such other matters which are relevant to the custody of minor.
Motion to dismiss is not allowed except on the ground of lack of jurisdiction over the subject matter or
over the parties. Respondent must file verified answer within 5 days from service of summons and copy of
petition.

PROVISIONAL ORDER AWARDING CUSTODY (Sec. 13)

As far as practicable, the following order of preference shall be observed in the award of custody:
1. Both parents jointly;
2. 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;
3. The grandparent or if there are several grandparents, grandparent chosen by the minor over seven
years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified;
4. The eldest brother or sister over twenty one (21) years of age unless he or she is unfit or disqualified;
5. The actual custodian of the minor over twenty one (21) years of age unless former is unfit or
disqualified; or
6. Any other person or institution the court may deem suitable to provide proper care and guidance for the
minor.

TEMPORARY VISITATION RIGHTS (SEC. 15)

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

HOLD DEPARTURE ORDER (Sec. 16)

The minor child subject of the petition shall not be brought out of the country without prior order from the
court while the petition is pending. The Court, motu prorio or upon application under oath, may issue and
ex parte hold departure order.
PETITION OF WRIT OF HABEAS CORPUS (Sec. 20)
The petition shall be filed where the Family Court where petitioner resides or where the minor may be
found
The petition shall be enforceable within its judicial region to which the Family Court belongs. The petition
may however 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 SC, CA or with any of its members and, if so
granted 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.

THE RULE ON THE WRIT OF AMPARO

Definition of Terms

Writ of Amparo.It is a remedy available to any person whose right to life, liberty and security
has been violated or is threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity. It is intended to address extralegal
killings and enforced disappearances or threats thereof.

Extralegal Killings.These are killings committed without due process of law. i.e., without legal
safeguards or judicial proceedings.

Enforced Disappearances. These are attended by the following characteristics: an arrest,

detention, or abduction of a person by a government official or organized groups or private
individuals acting with the direct or indirect acquiescence of the government, the refusal of the
State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge
the deprivation of liberty which places such persons outside the protection of the law.

NATURE OF THE WRIT OF AMPARO

1. It is an independent and summary remedy.that provides rapid judicial relief to protect the
people’s right to life, liberty and security.
2. It is preventive that it breaks the expectations of impunity in the commission of these
offenses.
3. It is curative.in that it facilitates the subsequent punishment of perpetrators by inevitably
leading to subsequent investigation and action.

Writ of Amparo
 It is confined only to cases of extralegal killings and enforced disappearances.
 It is a not a civil nor a criminal action but a special proceeding, hence, the revised rules
on summary procedure is NOT applicable in amparo proceedings.

The petitions and issuance of a writ of amparo is governed by The Rule on the Writ of
Amparo(A.M. No. 07-9-12-SC) which was approved by the Supreme Court on September 25,
2007. The Rule took effect on October 24, 2007 (Please see attached copy of the rule).
 The hearing on the petition shall be summary. However, the court, justice or judge may call
for a preliminary conference to simplify the issues and determine the possibility of obtaining
stipulations and admissions from the parties.

The required quantum of evidence in a petition for writ of amparo is SUBSTANTIAL

EVIDENCE. It is the quantum of evidence which areasonable mind might accept as adequate to
support a conclusion.

If the respondent is a private individual or entity, he must prove that ordinary diligence
as required by applicable laws, rules and regulations was observed in the performance of duty.

If the respondent is a public official or employee, he must prove that extraordinary

diligence, as required by applicable laws, rules and regulations was observed in the
performance of duty. He cannot invoke the presumption of regularity in the performance of
duty to evade responsibility or liability.

Extraordinary diligence stresses the extraordinary measures expected to be taken in

safeguarding every citizen’s rights as well as in the investigation of cases of extrajudicial killings
and enforced disappearances.

When a criminal action and a separate civil action are filed subsequent to a petition for
writ of amparo, the petition (writ of amparo) shall be consolidated with the criminal action.

The court shall render judgment within ten (10) days from the time the petition is submitted
for decision.

THE RULE ON THE WRIT OF AMPARO

SUPREME COURT OF THE PHILIPPINES

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:
(a) Any member of the immediate family, namely: the spouse, children and parents of
the aggrieved party;

(b) 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
(c) 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:
(a) The personal circumstances of the petitioner;

(b) 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;

(c) 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;

(d) 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;

(e) 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

(f) 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:

(a) 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;]

(b) 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;

(c) All relevant information in the possession of the respondent pertaining to the threat, act
or omission against the aggrieved party; and

(d) If the respondent is a public official or employee, the return shall further state the
actions that have been or will still be taken:

(i) to verify the identity of the aggrieved party;

(ii) 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;
(iii) to identify witnesses and obtain statements from them concerning the death or
disappearance;
(iv) to determine the cause, manner, location and time of death or disappearance as well
as any pattern or practice that may have brought about the death or disappearance;
(v) to identify and apprehend the person or persons involved in the death or
disappearance; and
(vi) to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and
the prosecution of the case.

A general denial of the allegations in the petition shall not be allowed.

SEC. 10.Defenses not Pleaded Deemed Waived. All defenses shall be raised in the return,
otherwise, they shall be deemed waived.

SEC. 11.Prohibited Pleadings and Motions. The following pleadings and motions are
prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return, opposition, affidavit, position paper and other
pleadings;
(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;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory orders or interim relief orders; and
(l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

SEC. 12.Effect of Failure to File Return. In case the respondent fails to file a return, the court,
justice or judge shall proceed to hear the petition ex parte.

SEC. 13.Summary Hearing. The hearing on the petition shall be summary. However, the court,
justice or judge may call for a preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the parties.

The hearing shall be from day to day until completed and given the same priority as petitions for
habeas corpus.

SEC. 14.Interim Reliefs. Upon filing of the petition or at any time before final judgment, the
court, justice or judge may grant any of the following reliefs:

(a) Temporary Protection Order. The court, justice or judge, upon motion or motuproprio,
may order that the petitioner or the aggrieved party and any member of the immediate
family be protected in a government agency or by an accredited person or private
institution capable of keeping and securing their safety. If the petitioner is an
organization, association or institution referred to in Section 3(c) of this Rule, the
protection may be extended to the officers involved.

The Supreme Court shall accredit the persons and private institutions that shall extend
temporary protection to the petitioner or the aggrieved 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 andconditions 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 motuproprio, 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.

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, butshall
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,
motuproprio 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 underthe 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.

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.
SEC. 27.Effectivity. – This Rule shall take effect on October 24,2007, following its publication
in three (3) newspapers of general circulation.

DISTINCTION BETWEEN WRITS OF HABEAS CORPUS, AMPARO, AND DATA

WRIT OF HABEAS CORPUS AMPARO HABEAS DATA
LEGAL BASIS The rule was Same Same
drafted pursuant
to the SC's
constitutional
power to
promulgate rules
for the protection
and enforcement
of constitutional
right. (Art. VIII,
Sec. 5)
GOVERNING LAW Rule 102 A.M. No. 07-9-12-SC A.M. No. 08-1-16-SC
DEFINITION "Habeas corpus" is a It is a remedy available to It is the remedy available to
latin phrase which any person whose right to any person whose right to
literally means "you life, liberty, and security has privacy in life, liberty or
have the body".
been violated or is security is violated or
Basically, it is a writ
threatened with violation an threatened by an unlawful
directed to the
person detaining unlawful act or omission of a act or omission of a public
another,commandin public official or employee, official or employee or of a
g him to produce the or of private individual or private individual or entity
body of the prisoner entity. The writ covers engaged in the gathering,
at a designated time extralegal killings and collecting or storing of data
and place, with the enforced disapperances or or information regarding the
day and cause of his threats thereof. person, family, home and
capture and
correspondence of the
detention, to do,
aggrieved party.
submit to, and
receive whatsoever
the court or judge
awarding the writ
shall consider in that
behalf.
REMEDY FOR Section 1 Section 1 Section 1
To all cases of To any person whose right To any person whose right
illegal to life, liberty, and security is to privacy in life, liberty and
confinement or violated or threatened with security is violated or
detention: violation by an unlawful act threatened with violation by
1. By which any or omission of a public an unlawful act or omission
person is deprived officer or employee, or of a of a public official or
of his liberty: or private individual or entity. employee, or of a private
2. By which the individual or entity engaged
rightful custody of in:
any person is 1. Gathering
withheld from the
person entitled
thereto.
2. Collecting
 3. Storing of data or
information regarding the
person family, home, and
correspondence of the
aggrieved party.
The Rule took The Rule took effect on 2
EFFECTIVITY effect on 1 July The Rule took effect on 24 February 2008
1997 October 2007
PETITIONER Section 3 Section 2 Section 2
By the party for By the aggrieved party, or by General Rule:
whose relief it is any qualified person or
The aggrieved party except:
intended, or by entity in the order provided
In cases of extralegal killings
some other person in Section 2.
and enforced disapperances:
in his behalf
1. Immediate family;
2. In default of No. 1,
ascendant, descendant or
collateral relative within the
4th civil degree of
consaguinity or affinity.
VENUE Section 2 Section 3 Section 3
Where the SC, CA, Sandiganbayan, RTC SC, CA, Sandiganbayan and RTC
plaintiff resides or of the place where the 1. Where the petitioner
where the threat, act or omission was resides;
defendant resides, commited or any of its 2. Where the respondent
or in the case of elements occurred. resides;
non-resident
defendant, where
he may be found,
at the election of 3. Which has jurisdiction
the plaintiff. over the place
where data or information is
gathered, etc.
All at the option of the
petitioner
EXTENT OF SC, CA, and SB: Anywhere in the Philippines Anywhere in the Philippines
ENFORCEABILITY anywhere in the
Phil Rtc: only
within its judicial
district
WHEN TO FILE Section 2 Section 3
On any day and at
any time On any day and at any time
DOCKET FEES AND
OTHER LAWFUL FEES Section 4 Section 5
Exempt Exemption only applies to an
indigent petitioner

REQUISITES OF PETITION Section 3 Section 5 Section 6

Signed and
verified Signed and verified Signed and verified
ISSUANCE OF THE WRIT Section 5 Section 6 Section 7
When it appears, When in its face ought to When in its face ought to
it ought to be issue immediately issue immediately. However,
issued there should be service
immediately within three days.

SUMMARY HEARING Section 12 Section 6 Section 7

Hearing on return Not later than 10 days from
Not later than 7 days from
the date of its issuance.
the date of its issuance
MANNER OF SERVICE Section 7 Section 8 Section 9
Service of the writ If the writ cannot be served If the writ cannot be served
shall be leaving the personally on the personally on the
original with the respondent, the rules on respondent, the rules on
person to whom it is
substituted service shall substituted service shall
directed and
apply apply
preserving a copy on
which to make
reture of service. If
the person cannot
be found, or was not
the prisoner in
custody then the
services shall be
made on any person
having or exercising
such custody.

CONTENTS OF RETURN Section 10 Section 9 Section 9

Signed and shall Verified written return Verified written return
also be sworn to if period to file cannot be may be reasonably
the prisoner is not extended except on highly extended by the court for
produce meritorious ground justifiable grounds;

PENALTIES Section 16 Section 7 Section 8 and 11

Clerk of a court 1. Clerk of court who refuses
who refuses to to issue the writ
issue the writ; Same with Writ of Amparo
Person to whom a 2. Deputized person who
writ is directed, refuses to serve the same
who neglects or
Penalty = contempt without
refuses to obey or
prejudice to other
make return of the
disciplinary actions.
same according to
the command Section 16
thereof, or make 1. Respondent who refuse to
false return make a return or makes a
thereof, refuses to false return;
deliver to the
person
demanding, within
six (6) hours after
the demand of a
 true copy of the
warrant or order
of commitment.
Penalties: 2. Any person who disobeys
a. forfeit to the or resists a lawful process or
party aggrieved order of the court
the sum of one
thousand pesos,
to be received in a
proper action. Penalties
b. Contempt a. Contempt
b. imprisonment
c. Fine
WHEN DEFENSES MAY BE None None
HEARD IN CHAMBERS
PROHIBITED PLEADINGS Section 11
AND MOTION a. Motion to dismiss;
b. Motion for extension of
time to file return,
opposition, affidavits,
position paper and other
pleadings;
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;
i. Intervention;
j. Memorandum;
k. Motion for
reconsideration of inter-
locutory orders or interim
relief orders; and
l. Petition for certiorari,
mandamus or prohibition
against any interlocutory
order.
EFFECT OF FAILURE TO Section 12
FIND RETURN In case the respondent fails
to file return the court
justice or judge shall
proceed to hear the petition
ex parte
Section 12
May be heard in chambers
Section 13
a. Motion to dismiss;
b. Motion for extension of
time to file opposition,
affidavit, position paper and
other pleadings;
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;
i. Intervention;
j. Memorandum;
k. Motion for
reconsideration of inter-
locutory orders or interim
relief orders; and
l. Petition for certiorari,
mandamus or prohibition
against any interlocutory
order.
Section 14
In case the respondent fails to
file a return the court justice or
judge shall proceed to hear the
petition ex parte, granting the
petitioner such relief as the
petition may warrant unless the
court in its discretion requires
 the petitioner to submit
evidence.

SUMMARY HEARING Section 13 Section 15

The hearing on the petition Same with Writ of Amparo
shall be summary. However,
the court,justice or judge
may call for a preliminary
conference to simplify the
issues and determine the
possibility of obtaining
stipulations and admissions
from the parties.
The hearing shall be from
day to day until completed
and given the same priority
as petitions for habeas
corpus.
INTERIM
RELIEFS Section 12 Section 14
1. Unless for good a. Temporary Protection
cause shown, the Order.
hearing is b. Inspection Order
adjourned, in c. Production Order
which event the
d. Witness
court shall make
an order for the
safekeeping of the
person imprisoned
or restrained as
the nature of the
case requires.
2. The court or
judge must be
satisfied that the
person's illness is
so grave that he
cannot be
produced without
any danger.
JUDGMENT Section 15 Section 18 Section 16
When the court or The court shall render Same with WOA with an
judge has judgment within ten(10) addition that upon finality,
examined into the days from the time the the judgment shall be
cause of caption petition is submitted for enforced by the sheriff or
and restraint of decision. If the allegations in any lawful officers as may be
the prisoner, and the petition are proven by designated by the court,
is satisfied that he substantial evidence, the justice or judge within five
is unlawfully court shall grant the (5) working days.
imprisoned or privilege of the writ and
restrained, he such reliefs as may be
shall forthwith proper
 order his
discharge from
confinement, but and appropriate, otherwise,
such discharg shall the privilege shall be denied.
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.
APPEAL Section 15 in Sectio 19 Section 19
relation to Section Rule 45 by petition for Same as WOA
3 of Rule 41 and review on certiorari with
Section 39 of B.P peculiar features:
Blg. 129. 48 hours 1. Appeal may raise
from noticed of question of facts or law or
judgment both.
appealed from by
ordinary appeal.
2. Period of appeal shall be
five(5) working days from
the date of notice of the
adverse judgment.
3. Same priority as habeas
corpus cases.
RETURN OF SERVICE Section 17
The officer who executed
the final judgment shall
make a verified return
within three(3) days from its
enforcement.
ARCHIVING AND REVIVAL Section 20
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
petition or witnesses to
appear due to threats on
their lives. 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.
INSTITUTION OF Section 21
SEPARATE ACTIONS Section 20
The Rule shall not preclude Same as WOA
the filing of separate
criminal,civil or
administrative actions

EFFECTS OF FILING Section 22

CRIMINAL ACTION Section 21
When a criminal action has Same as WOA
been com-menced, no separate
petition for the writ shall be
filed. The reliefs under the writ
shall be available by motion in
the criminal case.
CONSOLIDATION Section 23 Section 22
When a criminal action is Same as WOA
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
Amparo, the latter shall be
consolidated with the
criminal action.
SUBSTANTIVE RIGHTS Section 24 Section 23
This Rule shall not diminish,
increase or modify Difference is that in WOA,
substantive rights the constitution provides the
recognized and protected by law from which the
the Constitution. substantive rights exist.
SUPPLETORY Rule 72, Section 2 Section 25 Section 24
APPLICATION OF THE in the absence of The Rules of Court shall
RULES OF COURT special provisions, apply suppletorily insofar as Same as WOA
the rules provided it is not incosistent with this
for in ordinary rule.
actions shall be, as
far as practicable,
applicable in
special
proceedings.

B. BRIEF BACKGROUND ON THE WRIT OF AMPARO

The Writ of Amparo was first adopted in Mexico in 1957. Amparo literally means
Protection. Its is broader in scope and application than the Writ of habeas corpus. It protects a
person against illegal arrest and violation of human rights.

The Supreme Court may adopt the Writ of Amparo in order to effectively shield a person
against the violation of human rights by arbitrary authorities.

Justice Azcuna defined Amparo as a special constitutional writ to protect or enforce a

constitutional right (other than physical liberty which is already covered by the writ of habeas
corpus).

WRIT OF HABEAS DATA

What is the writ of habeas data?
It is a remedy available to any person whose right to privacy in life, liberty or security is 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 gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party.
What rule governs petitions for and the issuance of a writ of habeas data?
It is governed by The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC ), which was
approved by the Supreme Court on 22 January 2008. That Rule shall not diminish, increase or
modify substantive rights.
What is the Supreme Court’s basis in issuing the Rule?
The Rule was drafted pursuant to the Supreme Court constitutional power to promulgate rules for
the protection and enforcement of constitutional rights (Constitution, Art. VIII, Sec. 5[5]).
When does the Rule take effect?
The Rule takes effect on 2 February 2008, following its publication in three (3) newspapers of
general circulation.
Who may file a petition for the issuance of a writ of habeas data?
The petition may be filed by the aggrieved party. However, in cases of extralegal killings and
enforced disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children
and parents; or
(b) 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.
Where can the petition be filed?
a. Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction
over the place where the data or information is gathered, collected or stored, at the option of the
petitioner.
b.Supreme Court;
c. Court of Appeals; or
d. Sandiganbayan, when the action concerns public data files of government offices.
How much is the docket or filing fees for the petition?
No docket and other lawful fees shall be required from an indigent petitioner. The petition of the
indigent shall be docketed and acted upon immediately, without prejudice to subsequent
submission of proof of indigency not later than 15 days from the filing of the petition.
What are the required contents of the petition?
The verified written petition shall allege the following:
(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 as are just and equitable.
When is the writ of habeas data issued?
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 and cause it to be served within three (3) days from its issuance; or, in case of urgent
necessity, the justice or 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 ten (10) work days from the date of its issuance.
Is there any penalty in case of refusal to issue or serve the writ?
Yes. 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.
How is the writ of habeas data served?
The writ shall be served upon the respondent by the officer or 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.
After the writ is served, what should the respondent do?
The respondent shall file a verified written return together with supporting affidavits within five
(5) work days from service of the writ, which period may be reasonably extended by the Court
for justifiable reasons.
What are the contents of the written return?
The return shall, among other things, contain the following:
(a) The lawful defenses such as national security, state secrets, privileged communication,
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.
What happens if the respondent makes a false return or refuses to make a return; or if any
person who disobeys or resists a lawful process or order of the court?

That person may be punished with imprisonment or fine.

Also, when the respondent fails to file a return, the court, justice or judge shall proceed to hear
the petition ex parte, granting the petitioner such relief as the petition may warrant unless the
court in its discretion requires the petitioner to submit evidence.
Instead of having the hearing in open court, can it be done in chambers?
Yes. It can be done when the respondent invokes the defense 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.
What is the nature of the hearing on the petition?
The hearing on the petition shall be summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the possibility of obtaining
stipulations and admissions from the parties.
How long does the court have in deciding the petition?
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.
What happens after the finality of the judgment?
Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be
designated by the court, justice or judge within five (5) work days.
The officer who executed the final judgment shall, within three (3) days from its enforcement,
make a verified return to the court. The return shall contain a full statement of the proceedings
under the writ and a complete inventory of the database or information, or documents and
articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the
respondent.
The officer shall state in the return how the judgment was enforced and complied with by the
respondent, as well as all objections of the parties regarding the manner and regularity of the
service of the writ.
The court shall set the return for hearing with due notice to the parties and act accordingly.
Does the filing of the petition preclude the filing of separate criminal, civil or
administrative actions?

No. However, when a criminal action has been commenced, no separate petition for the writ
shall be filed, but the reliefs under the writ shall be available by motion in the criminal case, and
the procedure under this Rule shall govern the disposition of the reliefs available under the writ
of habeas data.
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.
WRIT OFKALIKASAN
Governing A.M. No. 09-6-8-SC
Law
Definition It is a remedy available to a natural or juridical person, entity authorized by
law, people’s organization, non-governmental organization, or any public
interest group accredited by or registered with any government agency, on
 behalf of persons whose constitutional right to a balanced and healthful
ecology is violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private individual or entity,
involving environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities or provinces.
Effectivity April 13, 2010
Venue Supreme Court or with any of the stations of the Court of Appeals.
Docket Fees Exempt
Issuance of Within three (3) days from the date of filing of the petition, if the petition is
the Writ sufficient in form and substance, the court shall give an order: (a) issuing the
writ; and (b) requiring the respondent to file a verified return as provided in
Section 8 of this Rule. The clerk of court shall forthwith issue the writ under
the seal of the court including the issuance of a cease and desist order and
other temporary reliefs effective until further order.
Manner of The writ shall be served upon the respondent by a court officer or any person
Service deputized by the court, who shall retain a copy on which to make a return of
service. In case the writ cannot be served personally, the rule on substituted
service shall apply.
Penalties A clerk of court who unduly delays or refuses to issue the writ after its
allowance or a court officer or deputized person who unduly delays or refuses
to serve the same shall be punished by the court for contempt without
prejudice to other civil, criminal or administrative actions.
Return; Within a non-extendible period of ten (10) days after service of the writ, the
Contents respondent shall file a verified return which shall contain all defenses to show
that respondent did not violate or threaten to violate, or allow the violation of
any environmental law, rule or regulation or commit any act resulting to
environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.
All defenses not raised in the return shall be deemed waived.
The return shall include affidavits of witnesses, documentary evidence,
scientific or other expert studies, and if possible, object evidence, in support
of the defense of the respondent.
A general denial of allegations in the petition shall be considered as an
admission thereof.
Prohibited (a) Motion to dismiss;
pleadings and (b) Motion for extension of time to file return;
(c) Motion for postponement;
motions
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply; and
(h) Motion to declare respondent in default.
Effect of In case the respondent fails to file a return, the court shall proceed to hear
failure to file the petition ex parte.
return
Hearing Upon receipt of the return of the respondent, the court may call a preliminary
conference to simplify the issues, determine the possibility of obtaining
stipulations or admissions from the parties, and set the petition for hearing.
The hearing including the preliminary conference shall not extend beyond
sixty (60) days and shall be given the same priority as petitions for the writs of
habeas corpus, amparo and habeas data.
Discovery A party may file a verified motion for the following reliefs:
Measures (a) Ocular Inspection; order — The motion must show that an ocular
inspection order is necessary to establish the magnitude of the
violation or the threat as to prejudice the life, health or property of
inhabitants in two or more cities or provinces. It shall state in detail
the place or places to be inspected. It shall be supported by affidavits
of witnesses having personal knowledge of the violation or threatened
violation of environmental law.
After hearing, the court may order any person in possession or control
of a designated land or other property to permit entry for the purpose
of inspecting or photographing the property or any relevant object or
operation thereon.
The 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.
(b) Production or inspection of documents or things; order – The
motion must show that a production order is necessary to establish
the magnitude of the violation or the threat as to prejudice the life,
health or property of inhabitants in two or more cities or provinces.
After hearing, the court 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 production order shall specify the person or persons authorized to make
the production and the date, time, place and manner of making the
inspection or production and may prescribe other conditions to protect the
constitutional rights of all parties.
Judgment Within sixty (60) days from the time the petition is submitted for decision, the
court shall render judgment granting or denying the privilege of the writ of
kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
 committing acts or neglecting the performance of a duty in violation of
environmental laws resulting in environmental destruction or damage;
(b) Directing the respondent public official, government agency,
private person or entity to protect, preserve, rehabilitate or restore
the environment;
(c) Directing the respondent public official, government agency,
private person or entity to monitor strict compliance with the decision
and orders of the court;
(d) Directing the respondent public official, government agency, or
private person or entity to make periodic reports on the execution of
the final judgment; and
(e) Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection, preservation,
rehabilitation or restoration of the
environment, except the award of damages to individual petitioners.
Appeal Within fifteen (15) days from the date of notice of the adverse judgment or
denial of motion for reconsideration, any party may appeal to the Supreme
Court under Rule 45 of the Rules of Court. The appeal may raise questions of
fact.
Consolidation The filing of a petition for the issuance of the writ of kalikasan shall not
preclude the filing of separate civil, criminal or administrative actions.

RULE 103 - CHANGE OF NAME

Differentiation of Rule 103, Rule 108, R.A. 9048, R.A. 10172 are as follows:
Rule 103 Rule 108 R.A. 9048 R.A. 10172
Name of Change of Name Cancellation/correc- Clerical Error Amendment
the Law tion Act to
of entries in the civil R.A. 9048
registry
Subject Change of name Change and Change of first name Correction of
matter (substantial corrections) corrections in the and nickname and clerical or
civil entries civil entries (only typographical
(substantial typographical or errors in the
corrections) clerical errors) day and
month in the
date of birth
or sex of a
person
Who may A person desiring to Any person Any person having Same with R.A
file change his name (sec.1) interested in any direct and personal 9048
act, event, order or interest in the
decree concerning correction of a clerical
the civil status of or typographical error
persons which has in an entry and/ or
been recorded in change of first name
 the civil register. or nickname (sec.3)
(sec.1)
Venue RTC of the province RTC of the province (1.) Local civil Same with R.A
where the petitioner where the registry office 9048
resides for three (3) years corresponding civil of the city or
prior to filling, or in the registry is located. municipality
city of Manila, to the where the
Juvenile and domestic record being
relation court. sought to be
corrected or
change is
kept;
(2.) Local Civil
registry of the
place where
the interested
party is
presently
residing od
domiciled;
(3.) Philippine
consulates.
Grounds 1. Name is Upon good and valid 1. The petitioner Clerical or
ridiculous tainted ground, the finds the first typographical
with dishonor following entries in name or error.
and difficult to the civil register nickname to
write or may be cancelled or be ridiculous,
pronounce; corrected. tainted with
2. Consequence of dishonor and
change of status; difficult to
3. Necessary to write or
avoid confusions; pronounce;
4. Having 2. The new first
continuously name or
used and been nickname has
known since been
childhood by a habitually and
Filipino name, continuously
unaware of his used by the
alien percentage; petitioner and
5. A sincere desire he has been
to adopt a publicly
Filipino name to known by the
erase signs of first name or
former alienage, nickname in
all in good faith the
without community;
prejudicing 3. The change
 anybody. will avoid
confusion.
(sec4)
Kind of Judicial Summary Administrative Administrative
proceed- Proceeding Proceeding proceeding proceeding
ing This can be
converted to an
adversarial
proceeding if there
are substantial
changes and affect
the status of an
individual
Who The Solicitor General or The Civil registrar The Civil Registrar or Same with R.A
participate the proper provincial or the Consul 9048
on the the city fiscal shall appear
part of the in behalf of the
govern- Government of Republic
ment
Where to Appeal Decision with the Appeal Decision Appeal decision to the Same with R.A
appeal Court of Appeals with the Court of Civil Registrar General 9048
Appeals (head of NCSO)

 Nature of the Petition for the Change of name

It is a special proceeding to establish the status of a person involving his relations with others or
the rest of the community. It is a proceeding in rem, as such, strict compliance with jurisdictional
requirements, particularly on publication, is essential in order to vest the court with jurisdiction
thereof.
 The Person’s name under Philippine law consist of:
A given or Christian name and a family surname.
 Conflict of name in different instruments

In case of conflict of written name in the baptismal name and the name in the civil registry, the
name in the civil registry will prevail and will be the real name of the person involve.

 Change of name in an Administrative proceeding

Names can be change in administrative proceedings but only to the matters relating to change
of first name under R.A. 9048 to be filed in the local Civil Registry office.

 TO CORRECT vs TO CHANGE
 To correct means “to make or set a right or to remove faults or errors.”
(Substantial corrections need the petition to be converted into a adversarial proceeding).
To Change means “to replace something with something else of the same kind or with
something that serves as a substitute.”

 Right or Privilege

Change of name is NOT a matter of right it is a privilege. Hence, a person seeking change of
name must show proper or reasonable cause, or any compelling reason which may justify such
change.

 Proper objection to Grant of Change of name.

Parties who already bear the surname desired by the applicant can object to the grant of
petition on the grounds of, not because he would thereby acquire certain family ties with them
but because the existence of such ties might be erroneously impressed on the public mind.

 Significance of Publication of the order

A petition for change of name being a proceeding in rem, the court acquires jurisdiction to hear
and determine the petition only after publication of the order.

 Requisites of a valid Publication (Sec. 3, Rule 103)

1. The petition and the copy of the order indicating the date and place of the hearing must be
published
2. The publication must be at least once a week for three successive weeks.
3. Publication must be in some newspaper in general circulation published in the province, as
the court shall deem best. Another validation ingredient relates to the caveatagainst the
petitioner being heard within 30 days prior to an election or within four (4) months after the
last publication of the notice of the hearing.

 REPUBLIC v. COSETENG-MAGPAYO

Facts:
The petitioner alleges that his parents were not legally married, thus he file a petition to change
his name changing the surname he currently bares. The RTC grant the petition and order the
civil registry to delete the entry of marriage of the persons concern and to delete the entry of
father in the records of the petitioner’s birth certificate.

The republic of the Philippines through the Office of the Solicitor General assailed the decision
contending that the deletion of the parents in the birth certificate affects his status from being
legitimate to illegitimate, thus, it should be made through appropriate adversarial proceedings.

ISSUE: WON the petition should be change to adversarial proceeding.

Held:
The change being sought in respondent’s petition goes far as to affect his legal status in relation
to his parents. It seeks to change legitimacy to that of illegitimacy. Rule 103 then would not suffice to
grant respondent’s supplication.
 Since respondent’s desire change affects his civil status from legitimate into illegitimate, hence
rule 108 applies and the petition should be converted into adversarial proceeding as the same rule
provides. Strict compliance with the requirements of Rule 108 of rules of court is mandated.

 REPUBLIC v. CAPOTE
HELD:
The petitioner is entitled to change his name as he was never recognized by his father while his
mother has always recognized him as her child. A change of name will erase the impression that
he was ever recognized by his father. It is also to his best interest as it will facilitates his
mother’s intended petition to have him join her in the United States. This court will not stand in
the way in the reunification of mother and son.

 CARULASANG WANG VS. CEBU CITY REGISTRAR

HELD:

In the case at bar, the only reason advance by the petitioner for the dropping of his middle
name is convenience. However, how such change of name would make his integration in
Singaporean society easier and convenient is not clearly established. That his continued use of
his middle name would cause confusion and difficulty does not constitute proper and
reasonable cause to drop it from his registered full name.
RULE 105 : JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF
MINOR NATURAL CHILDREN

Sec. 1. Venue. - Where judicial approval of a voluntary recognition of a minor

natural child is required, such child or his parents shall obtain the same by filing a
petition to that effect with the Court of First Instance of the province in which the
child resides. In the City of Manila, the petition shall be filed in the Juvenile and
Domestic Relations Court.

Sec. 2. Contents of petition. - The petition for judicial approval of a voluntary

recognition of a minor natural child shall contain the following allegations:
(a) The jurisdictional facts;
(b) The names and residences of the parents who acknowledged the child, or of
either of them, and their compulsory heirs, and the person or persons with whom
the child lives;
(c) The fact that the recognition made by the parent or parents took place in a
statement before a court of record or in an authentic writing, copy of the statement
or writing being attached to the petition.

Sec. 3. Order for hearing. - Upon the filing of the petition, the court, by an order
reciting the purpose of the same, shall fix the date and place for the hearing
thereof, which date shall not be more than six (6) months after the entry of the
order, and shall, moreover, cause a copy of the order to be served personally or by
mail upon the interested parties, and published once a week for three (3)
consecutive weeks, in a newspaper or newspapers of general circulation in the
province.

Sec. 4. Opposition. - Any interested party must, within fifteen (15) days from
service, or from the last date of publication, of the order referred to in the next
preceding section, file his opposition to the petition, stating the grounds or reasons
therefor.

Sec. 5. Judgment. - If, from the evidence presented during the hearing, the court is
satisfied that the recognition of the minor natural child was willingly and
voluntarily made by the parent or parents concerned, and that the recognition is for
the best interest of the child, it shall render judgment granting judicial approval of
such recognition.

Sec. 6. Service of judgment upon civil registrar. - A copy of the judgment rendered
in accordance with the preceding section shall be served upon the civil registrar
whose duty it shall be to enter the same in the register.

Rule 105 JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF

MINOR NATURAL CHILD
Voluntary Recognition - it is an admission of the fact of paternity or maternity by
the presumed parent, expressed in the form prescribed by the civil code. Its essence
lies in the avowal of the parent that the child is his; the formality is added to make
the admission incontestable, in view of the consequences.
WITH THE EFFECTIVITY OF THE FAMILY CODE, WHAT CHANGES
WERE MADE?
Art. 172 of the Family Code- Filiation of the legitimate children is established
by any of the following:
1. The record of birth appearing in a civil register or a final judgment; or
2. An admission of legitimate filiation in a public document or a private
document handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved
by:
1. The open and continuous possession of the status of a legitimate child; or
2. Any other means allowed by the Rules of Court and special laws.
In effect: Judicial approval of voluntary recognition is required only where
filiation is proved by:
1. The record of birth appearing in a civil register or a final judgment; or
 2. Any other means allowed by the Rules of Court and special laws
Recognition of a natural child through:
a. Record of birth
b. Will
c. Statement before court of record
d. Any authentic writing
CAN AN ILLEGITIMATE CHILD USE THE SURNAME OF THE FATHER?
General rule : the illegitimate children shall use the surname of the mother.
Exception: as a consequence of the Judicial Recognition of the paternity by the
father, the illegitimate children may use the surname of the father. The illegitimate
children has the option whether to continue to use the surname of the mother or
change it to the surname of the father.
MAY A FATHER PETITION THE COURT TO HAVE HIS ILLEGITIMATE
CHILDREN USE HIS SURNAME?
Article 176 gives the illegitimate children the right to decide if they want to use the
surname of their father or not.
Nothing is more settled than that when the law is clear and free from
ambiguity, it must be taken to mean what it says and it must be given its literal
meaning free from any interpretation.

RULE 106
CONSTITUTION OF FAMILY HOME
Family Home- constituted jointly by the husband and the wife or by an unmarried head of the
family, is the dwelling house where they and their family reside, and the land on which it is
situated.
The Family Home must be established on the properties of:
a. Absolute Community; or
b. Conjugal Partnership; or
c. Exclusive Property of either spouse with the consent of the other
Note: It cannot be established on property held in co-ownership with third persons.
There are two modes of constitution:
A. Extrajudicial- Civil Code
B. Judicial- Rule 106 of Rules of Court

A. EXTRAJUDICIAL –Civil Code

Advantage under the Civil Code if you constitute your home as family home -it is exempt from
execution, forced sale or attachment (Art. 155 of Civil Code) except:
a. For non-payment of taxes;
b. For debts incurred prior to the constitution of the family home;
c. For debts accrued by mortgages on the premises before or after such constitution; and
d. For debts due to laborers, mechanics, architects, builders, material men and others who
have rendered services or furnished material for the construction of the building
Summarize the Rules on Constitution of Family Home for purposes of exemption from
execution:
 1. Before the affectivity of the Family Code or before August 3, 1988 must be constituted
as a Family Homes as either judicially or extrajudicially in accordance with the provisions
of the Civil Code.
2. After the affectivity of the Family Code on August 3, 1988 are automatically deemed to
be Family Homes and thus exempt from execution from the time it was constituted and
lasts as long as any of its beneficiaries actually resides therein.
3. Prior to the affectivity of the Family Code, but were existing thereafter, are considered as
family homes by operation of law and are prospectively entitled to the benefits accorded
to a family home under the Family Code.

These rules find application in the Care of Spouses AracelisOlivio-De Mesa and Ernesto
De Mesa vs. Spouses Claudio and RufinaAcero, Gr No. 185064, Jan. 16, 2012.

B. JUDICIAL- Rule 106 of Rules of Court

Who may constitute (Section 1)
-The head of the family owning a house and the land on which it is situated.
 Where to file a verified petition to that effect- Court of First Instance of the province or
city where the property is located. In the City of Manila, the petition shall be filed in the
Juvenile an Domestic Relations Courts.

Contents of Petition (Section 2)

a. Description of the Property;
b. An estimate of its accrual value;
c. A statement that the petitioner is actually residing in the premises;
d. The encumbrances thereon;
e. The names and addresses of all the creditors of the petitioner or head of the family and
of all mortgagees and other person who have an interest in the property; and
f. The names of all the beneficiaries of the family home
Notice and Publication (Section 3)
 Notice - ofcreditors, mortgagees and all other persons who have an interest in the
estate
 Publication- once a week for three (3) consecutive weeks in a newspaper of general
circulation.
-shall be posted in a conspicuous place in the parcel of land mentioned therein,
and also in a conspicuous place of the municipal building of the municipality or
city in which the land is situated for at least (11) days to the day of the hearing.

Objection and date of hearing (Section 4)

When and who may object the petition- those interested parties within a period of not less
than thirty (30) days from receipt of notice or from the date of last publication.

Order (Section 5)

The petition shall be approved if:

a. The court finds that the actual value of the proposed family home does not exceed
twenty thousand pesos; or thirty thousand in chartered cities; and
b. That no third person is prejudiced or that creditors have been given sufficient security
for their credits
Registration of Order (Section 6)
Basis of Registration- a certified copy of the order of the court approving the establishment of
the family home and shall be furnished the register of deeds who shall record the same in the
registry of property.

RULE 107 - ABSENTEES

Absentee – any person that disappears from his domicile, his whereabouts being unknown, and without
having left an agent to administer his property, or the power conferred about the agent has expired.
Persons who may petition to be appointed as representative of the absentee:
1. Any interested party
2. Relative
3. friend

Jurisdiction
-Regional Trial Court (RTC)
-Juvenile and Domestic Relations Court (if in the City of Manila)

Venue
-place where the absentee resided before his disappearance

DECLARATION OF ABSENCE; WHO MAY PETITION

ž After the lapse of two (2) years from the disappearance and without any news from the absentee or
since the receipt of the last news, or (5) five years in case of absentee has left a person in charge of the
administration of his property, the declaration of his absence and appointment of a trust or
administrator 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
health.

CONTENTS OF PETITION
ž ž The petition for the appointment of representative, or for the declaration of absence and the
appointment of trustee or an administrator must show the following:
ž (a) 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;
ž (c) The names and residences of creditors and others who may have adverse interest over the
property of the absentee;
(d) The probable value, location and character of the property belonging to the absentee.

TIME OF HEARING (for the appointment of representative, or for the declaration of absence and the
appointment of a trustee or administrator)
ž -When the petition is filed, the court shall fix a date and place where all concerned may appear to
contest the petition.
NOTICE
at least ten (10) days before the day of the hearing, 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

PUBLICATION
once a week for three (3) consecutive weeks prior to the time designated for the hearing, in the
newspaper of general circulation in the province or city where the absentee resides, as the court shall
deem best

OPPOSITION
ž Anyone appearing to contest the petition shall state in writing his grounds therefore, and serve a copy
thereof on the petitioner and other interested parties on or before the date designated by the hearing.
PROOF OF HEARING; ORDER
ž At hearing, the compliance with the provisions of section 4 (Time of hearing, notice and publication) 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 interest of the
absentee and shall specify the powers, obligations and remuneration of his representative, trustee or
administrator, regulating them by the rules concerning guardians.
ž In case of declaration of absence, the same shall not take effect until six (6) months after its
publications in a newspaper of general circulation designated by the court and in the Official Gazzette.
WHO MAY BE APPOINTED
1. the spouse present shall be preferred when there is no legal separation (In the appointment of the
representative)
2. any competent person may be appointed by the court (if the absentee left no spouse, or if the
spouse present is a minor or otherwise incompetent)
3. the trustee or administrator of the absentees property shall be appointed ( In case of declaration of
absence)

TERMINATION OF ADMINISTRATION
ž ž 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 absentees
property by purchase or by title.

JUDICIAL DECLARATION OF PRESUMPTIVE DEATH FOR PURPOSES OF REMARRIAGE (Article 40 and 41 of

the Family Code)
-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
-Two years shall be sufficient if the disappearance is considered in danger of the death under the
circumstances set forth in the provisions of article391 of the civil code
-The present spouse must file summary proceeding for the declaration of the presumptive death of the
absentee, without prejudice to the effect of the reappearance of the absent spouse.
Article 391 Civil Code
The following shall be presumed dead for all purposes, including the division of the estate among the
heirs:
1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the vessel or aeroplane;
2. A person in the armed forces who has taken part in war, and has been missing for four years;
3. A person who has been in danger of death under other circumstances and his existence has not
been known for four years.

REASON BEHIND THE REQUISITE JUDICIAL DECRLARATION OF PRESUMPTIVE DEATH OF THE ABSENT
SPOUSE
It is intended to protect him/her from a criminal prosecution of bigamy under Article 349 of the Revised
Penal Code which might come into play if he/she would prematurely remarry sans the court’s
declaration.
THE REQUISITES FOR THE DECLARATION OF PRESUMPTIVE DEATH
1) That the absent spouse has been missing for four consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death under circumstance laid down in Article 391.
2) That the present spouse wishes to remarry;
3) That the present spouse has a well-founded belief that the absentee is dead;
4) That the present spouse files a summary proceeding for the declaration of presumptive death of the
absentee.
THE BURDEN TO PROVE THAT THE ABSENT SPOUSE IS DEAD
-Spouse present is burdened to prove that his spouse has been absent and that he has a well founded
belief that the absent spouse is already dead before the present spouse may contract a subsequent
marriage.
THE BASIS OF THE WELL-FOUNDED BELIEF THAT THE ABSENT SPOUSE IS DEAD.
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 present spouse and whether absent spouse is still alive or is
already dead.
JUDGEMENT IN A PETITION FOR DECLARATION OF PRESUMPTIVE DEATH IMMEDIATELY FINAL AND
EXECUTORY.
The hearing of a petition for the declaration of presumptive death is a summary of proceeding under
the Family Code and is thus governed by the Title XI thereof. Article 247 of the Family Code provides
that the judgment of the trial court in summary court proceedings shall be immediately final and
executory. Thus, there is no reglementary period within which to perfect an appeal. Nonetheless, it
goes without saying that an aggrieved party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction (Republic v. Narceda, GR No. 182760, April 10, 2013)
REPUBLIC OF THE PHILIPPINES v. MARIA FE ESPINOSA CANTOR (GR No. 184621, December 10, 2013)
DOCTRINE: In sum , the Court viewed that the respondent merely engaged in a “ passive search” where
she relied on uncorroborated inquiries from her in-laws, neighbors and friends. She failed to conduct a
diligent search because her alleged efforts are insufficient to form a well-founded belief that her
husband was already dead.
REPUBLIC v. COURT OF APPEALS (GR No. 163604, May 5, 2005)
Doctrine: There is no doubt that the petition of Apolinaria Jamoc is a summary proceeding under the
Family Code and not a special proceeding under the Revised Rules of Court which requires a record on
appeal. It being a summary ordinary proceeding, the filing of a notice of appeal from the trial court’s
order sufficed.
 RULE 108
CANCELATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY
Procedure for cancellation or correction of entriesunder Rule 108

1. Petition for Cancellation or Correction of any entry relating to an act, event order or decree
concerning the civil status;

2. Court order fixing the date and place for Hearing;

3. Publication of the court order at least once a week for 3 successive weeks in a newspaper of
general circulation, with reasonable notice given to persons named in the petition;

4. Filing of opposition by the civil registrar and any person having/claiming interest under the entry
whose cancellation/correction is sought, within 15 days from notice of the petition or from the last
date of publication of the notice;

5. Hearing on the petition; and

6. Judgment granting/denying the petition. Copy of the judgment shall be served upon the civil
registrar, who shall annotate the same.

SECTION 1. WHO MAY FILE PETITION

Any person interested in any act, event, order or decree concerning the civil status of persons recorded in
the civil registry.

Where filed: RTC of the province where the corresponding civil registrar is located.

Proceedings under Rule 108 may be summary or adversarial:

1. Summary – when the correction sought to be made is a mere clerical error (now governed by R.A.
No. 9048).

2. Adversarial - where the rectification affects civil status, citizenship or nationality of a party or any
other substantial change.

Requisites of adversarial proceedings

1. Petition is filed before the court having jurisdiction over the impleaded civil registrar and all
interested parties; (Sec.3)

2. The order of the hearing must be published once a week for three consecutive weeks;

3. Notice thereof must be given to the Civil Registrar and all parties affected thereby;
 4. The civil registrar and any person having or claiming any interest under the entry whose
cancellation or correction is sought may, within 15 days from notice of the petition or from the last
date of publication of such notice, file his opposition thereto;

5. Full blown trial.

Proceedings for the correction of entries should not be considered as establishing one’s status in a manner
conclusively beyond dispute. The status corrected would not have a superior quality for evidentiary
purposes. Thereis no increase or diminution of substantive right (Chiao Ben Lim v. Zosa, G.R. No. L-
40252, December 29, 1986).

SECTION 2. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION

1.Births; 9.Acknowledgments of natural children;

2.Marriages; 10.Naturalization;
3.Deaths; 11.Election, loss or recovery of citizenship;
4. Legal separations; 12.Civil interdiction;
5. Judgments of annulments of marriage; 13.Judicial determination of filiation;
6. Judgments declaring marriages void from the 14.Voluntary emancipation of a minor;
beginning;
7. Legitimations; 15.Change of name.
8.Adoptions;

Even substantial errors in a civil registry may be correctedand the true facts established provided the
partiesaggrieved by the error avail themselves of the appropriateadversary proceedings (Republic of the
Philippines v.Valencia, G.R. No. L-32181, March 5, 1986).

Adversarial proceeding

One that has opposing parties; contested as distinguishedfrom an ex parte application, one of which the
partyseeking relief has given legal warning to the other party,and afforded the latter an opportunity to
contest it(Republic v. Valencia, supra).

Rule 108, when all the procedural requirementsthereunder are followed, is the appropriate
adversaryproceeding to effect substantial correction and changes inentries of the civil register (Lee v. Court
of Appeals, G.R.No. L-118387, Oct. 11, 2001).

Whether a petition under Rule 108 can be granted byreason of “sex change” or “sex
reassignment”: No.

Since the statutory language of the Civil Register Law wasenacted in the early 1900s and remains
unchanged, itcannot be argued that the terms “sex” as used then issomething alterable through surgery or
something thatallows a post-operative male-to-female transsexual to beincluded in the category of “female”
(Silverio v. Republic ofthe Philippines, G.R. No. 174689, October 22, 2007).

Congenital Adrenal Hyperplasia (CAH)

This condition causes the early or “inappropriate”appearance of male characteristics. x xx. CAH is one
ofmany conditions that involves intersex anatomy. Duringthe twentieth century, medicine adopted the
term“intersexuality” to apply to human beings who cannot beclassified as either male or female. The term is
now ofwidespread use. According to Wikipedia, intersexuality “isthe state of a living thing of a gonochoristic
species whosesex chromosomes, genitalia, and/or secondary sexcharacteristics are determined to be
neither exclusivelymale nor female. An organism with intersex may havebiological characteristics of both
male and female sexes”(Republic of the Philippines v. Jennifer Cagandahan, G.R.No. 166676, September
12, 2008).

Principles laid down by the SC in Republic of the

Philippines v. Cagandahan:

1. Where the person is biologically or naturally intersex, the determining factor in his gender
classification would be what the individual, having reached the age of majority, with good reason
thinks of his/her sex; sexual development in cases of intersex persons makes the gender
classification at birth inconclusive – it is at maturity that the gender of such persons is fixed.

2. To the person with CAH belongs the human right to the pursuit of happiness and of health, and to
him should belong the primordial choice of what courses of action to take along the path of his
sexual development and maturation.

3. There is merit in the change of name of a person with CAH where the same is the consequence of
the recognition of his preferred gender.

SECTION 3. PARTIES

1. Civil registrar;

2. All persons who have or claim any interest which wouldbe affected thereby.

SECTION 4. NOTICE AND PUBLICATION

Order of hearing shall be published once a week for 3 consecutive weeks in a newspaper of general
circulation in the province and all persons named in the petition shall be notified.

SECTION 5. OPPOSITION

The following are entitled to oppose the petition:

1. The Civil Registrar; and

2. Any person having or claiming any interest under the entry whose cancellation or correction is
sought. Within 15 days from notice of the petition or from date of last publication.

SECTION 6. EXPEDITING PROCEEDINGS

The court may also grant preliminary injunction for the preservation of the rights of the parties pending such
proceedings.

SECTION 7. ORDER

The Civil Registrar shall be given a copy of the judgment and annotate the same on his record.

REPUBLIC ACT NO. 9048

Republic Act No. 9048 or the “Clerical Error Act” which was passed by Congress on February 8, 2001
amended Articles 376 and 412 of the New Civil Code. Republic Act No. 10172 or “An Act Further
Authorizing the City or Municipal Civil Registrar or the Consul General to Correct Clerical or Typographical
Errors in the Day and Month in the Date of Birth or Sex of a Person Appearing in the Civil Register Without
Need of a Judicial Order amended Sections 1, 2, 5 and 8 of Republic Act No. 9048.

Cases Covered:

1. Clerical or typographical errors and change of first name or nickname;

2. Clerical or typographical errors and change of the day and month in the date of birth;
3. Clerical or typographical errors and change of sex of a person where it is patently clear there was
clerical or typographical error or mistake in the entry (Sec. 1, R.A. No. 9048, as amended by R.A.
No. 10172).

General Rule: No entry in a civil register shall be changedor corrected without a judicial order.

Exception: Clerical or typographical errors and change offirst name or nickname which can be corrected
orchanged by the concerned city or municipal civil registraror consul general in accordance with the
provisions of thisAct and its implementing rules and regulations.

Clerical or typographical error

A mistake committed in the performance of clerical work inwriting, copying, transcribing or typing an entry in
the civilregister that is harmless and innocuous, such as amisspelled name or misspelled place of birth or
the like,which is visible to the eyes or obvious to theunderstanding, and can be corrected or changed only
byreference to other existing record or records: Provided,however, That no correction must involve the
change ofnationality, age or status of the petitioner (Sec. 2 [3] R.A.No. 9048, as amended by Sec. 2 R.A.
No. 10172).

Note: It may be very well said that Republic Act No. 9048is Congress' response to the confusion wrought
by thefailure to delineate as to what exactly is that socalledsummary procedure for changes or corrections
of aharmless or innocuous nature as distinguished fromthat appropriate adversary proceeding for changes
orcorrections of a substantial kind. The obvious effect is toremove from the ambit of Rule 108 the correction
orchanging of clerical or typographical errors in entries ofthe civil register. Hence, what are left for the
scope ofoperation of Rule 108 are substantial changes andcorrections in entries of the civil register (Lee v.
Court ofAppeals, G.R. No. 118387, October 11, 2001).
Petition for change of name (Rule 103) and petition forcancellation or correction of entries (Rule 108)
aredistinct proceedings. Hence, a party cannot change hisname and correct an entry in a single petition
withoutsatisfying the jurisdictional requirements (Herrera, p.564).

The cancellation or correction of entries in the CivilRegistry is a proceeding in rem. Strict compliance with
all jurisdictional requirements, particularly on publication, is essential in order to vest the court with
jurisdiction (Regalado, p. 193).

Grounds:

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 the first name or nickname in the community; or

3. The change will avoid confusion (Sec. 4).

Who may file: Any person of legal age, having direct andpersonal interest in the correction of a clerical
ortypographical error in an entry and/or change of first nameor nickname in the civil register (Sec. 3).

Person with direct and personal interest:

1. He is the owner of the record; or

2. The owner’s spouse, children, parents, brothers, sisters,grandparents, guardian; or

3. Any other person duly authorized by law or by theowner of the document sought to be corrected.

Provided, that when a person is a minor or physically ormentally incapacitated: petition may be filed on his
behalfby his spouse, or any of his children, parents, brothers,sisters, grandparents, guardians, or persons
dulyauthorized by law (Sec. 3).

Where to file:

1. Local civil registry office or Clerk of the Shari’a Court where the record being sought to be
corrected or changed is kept;

2. If petitioner has already migrated to another place in the country: petition-receiving civil registrar of
the place where the interested party is presently residing or domiciled (Rule 4, Implementing Rules
& Regulations);

3. Citizens of the Philippines who are presently residing or domiciled in foreign countries: nearest
Philippine Consulates (Sec. 3).

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 and shall set forth:
 1. The facts necessary to establish the merits of the petition;

2. That the petitioner is competent to testify to the matters stated;

3. The erroneous entry which are sought to be corrected;

4. All names by which petitioner is known (SecanKok v. Republic of the Philippines, supra).

Annexes to the petition

1. A certified true copy of the certificate or of the page ofthe registry book containing the entries
sought to becorrected or changed;

2. At least 2 public or private documents showing thecorrect entries upon which correction or change
shall bebased;

3. Other documents which the petitioner or the city ormunicipal civil registrar or the consul general
mayconsider relevant and necessary for the approval of thepetition;

4. For correction of erroneous entry of date of birth or thesex of a person: earliest school record or
earliest schooldocuments such as, but not limited to, medical records,baptismal certificate and
other documents issued byreligious authorities;

5. For change of gender corrected: certification issued byan accredited government physician
attesting to the factthat the petitioner has not undergone sex change or sex transplant;

6. Certification from appropriate law enforcement agenciesthat the petitioner has no pending case or
no criminalrecord (Sec. 5 as amended by Sec. 3, R.A. No. 10172).

Publication requirement: The petition must be publishedat least once a week for 2 consecutive weeks in
anewspaper of general circulation.

Copies of the petition shall be given to: the city or municipal civil registrar, or the consul general; the Office
of the Civil Registrar General; and the petitioner (Sec. 5).

Effect of approving the petition for change of name:

The change shall be reflected in the birth certificate byway of marginal annotation. In case there are other
civilregistry records of the same person which are affected bysuch change, the decision of approving the
change of firstname in the birth certificate, upon becoming final andexecutory, shall be sufficient to be used
as basis in changing the first name of the same person in his otheraffected records without need for filing a
similar petition. Insuch a case, the successful petitioner shall file a requestin writing with the concerned
LCR or Consul to make suchmarginal annotation (Rule 12, Implementing Rules &Regulations 9048, July
24, 2001).
Availment of the privilege: The correction of clerical or typographical error shall be availed of only once
withrespect to a particular entry or entries in the same civil registry record. In case of change of first name
or nickname in the birth certificate, the privilege shall be availed of only once, subject to the provisions of
Rule 12 of the Implementing Rules & Regulations (Rule 7, IRR 9048).

Payment of Fees: The city or municipal civil registrar or the consul general shall be authorized to collect
reasonable fees as a condition for accepting the petition.

An indigent petitioner shall be exempt from the payment of said fee. (Sec. 8 as amended by Sec. 4, R.A.
No. 10172)

RULE 103 VS RULE 1O8

PETITIONS FOR CHANGE OF NAME PETITIONS FOR THE CORRECTION, CANCELLATION

OF ENTRIES
Full name may be changed Only Clerical and substantial errors may be corrected
Petition to be filed in the RTC where the petitioner Verified petition filed in the RTC where the corresponding
resides Civil registry is located
Solicitor General must be notified by service of a Civil registrar concerned is made a party to the
copy of the petition. proceeding as a respondent. The Solicitor General must
also be notified by service of a copy of the petition.
Petition is filed by person desiring to change his Petition is filed by any person interested in any ACT,
name EVENT, ORDER or DECREE
Order for hearing shall be published once a week Order shall also be published once for three consecutive
for three consecutive weeks weeks and court shall cause reasonable notice to
persons named in petition
Service of judgment shall be upon the civil register concerned

RA10172
Entries in the Birth Certificate that can be corrected:
A. Clerical or typographical errors and change of first name or nickname; and

Definition

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, mistake in the entry of day and month in
the date of birth or the sex of the person 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.
 Form and Contents of the Petition

Shall be in the form of an affidavit, subscribed and sworn to before any

person authorized by law to administer oaths.

Supporting Documents

(1) A certified true machine copy of the certificate or of the page of the
registry book containing the entry or entries sought to be corrected or
changed;

(2) At least two (2) public or private documents showing the correct entry
or entries upon which the correction or change shall be based; and

(3) Other documents which the petitioner or the city or municipal civil
registrar or the consul general may consider relevant and necessary for
the approval of the petition.

B. Day and month in the date of birth or sex of a person where it is patently
clear that there was a clerical or typographical error or mistake in the
entry
Requirements
(1) The petition is accompanied by earliest school record or earliest school
documents such as, but not limited to, medical records, baptismal
certificate and other documents issued by religious authorities; and in
case of change of gender, the petition is accompanied by a certification
issued by an accredited government physician attesting to the fact that
the petitioner has not undergone sex change or sex transplant.

(2) The petition for change of first name or nickname, or for correction of
erroneous entry concerning the day and month in the date of birth or
the sex of a person, as the case may be, shall be published at least once
a week for two (2) consecutive weeks in a newspaper of general
circulation.
 (3) The petitioner shall submit a certification from the appropriate law
enforcements, agencies that he has no pending case or no criminal
record.

(4) 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.”
Entries in the Birth Certificate that cannot be changed:
1. Nationality;
2. Age; or
3. Status of the petitioner

RULE 109
APPEALS IN SPECIAL PROCEEDINGS

Sec. 1. Orders or judgments from which appeals may be taken. - An interested person may
appeal in special proceedings from an order or judgment rendered by a Court of First Instance
or a Juvenile and Domestic Relations Court, where such order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the distributive share of the
estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or
any claim presented on behalf of the estate in offset to a claim against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or
the administration of a trustee or guardian, a final determination in the lower court of the
rights of the party appealing, except that no appeal shall be allowed from the appointment of a
special administrator; and
(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the
person appealing, unless it be an order granting or denying a motion for a new trial or for
reconsideration.
Sec. 2. Advance distribution in special proceedings. - Notwithstanding a pending controversy
or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and
upon such terms as it may deem proper and just, permit that such part of the estate as may not
be affected by the controversy or appeal be distributed among the heirs or legatees, upon
compliance with the conditions set forth in Rule 90 of these rules.