SPECIAL PROCEEDINGS: AN EXHAUSTIVE

EXPOSITION

RULE 91
ESCHEATS filed—When a
Sec. 1. When and by whom petition person diesproperty
entitled
intestate, seized of real or personal in the Philippines,in a
leaving no heir or person by law to the same, thepetition
Solicitor General or his representative behalf of theCourt)
Republic of the Philippines, may file in the Court ofof in
First Instance (now Regional Trial the province wherewhich
the deceased last resided or he had estate, if hesetting
deceased
resided out of the Philippines, forth the facts, and
praying that the estate of the be declared escheated.
sufficient
Sec. 2. Order for hearing.—lf the petition isreciting
in the for
form and substance, the court, by an order purposethe of six (6) that
the petition, shall fix a date and place hearing thereof,
a at least
which date shall be not more than months after newsprovince,
the
entry of the order, and shall direct copy of the orderasbe
published before the hearing once a week for six (6)
successive weeks in some paper of general circulation
published in the the court shall deem best.

Sec. 3. Hearing and judgment.—Upon the

tory proof in open court on the date fixed in the
such order has been published as directed and
person died intestate, seized of real or personal in
the Philippines, leaving no heir or person entitled
same, and no sufficient cause being shown to trary,
the court shall adjudge that the estate of ceased in
the Philippines, after the payment of and charges,
shall escheat; and shall, pursuant assi n the ersonal
estate to the munici alit or cit

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 satisfacorder
that that the
property to the
the conthe just
debts to law'
where

RULE 91

317

he last resided in the Philippines, and the real estate to the

municipalities or cities, respectively, in which the same is
situated. If the deceased never resided in the Philippines,
the whole estate may be assigned to the respective
municipalities or cities where the same is located. Such
estate shall be for the benefit of public schools, and public
charitable institutions and centers in said municipalities or

The court, at the instance of an interested party, or on its

own motion, may order the establishment of a permanent
trust, so that only the income from the property shall be used.

Sec. 4. When and by whom claim to estate filed—if a

devisee, legatee, heir, widow, widower or other person
entitled to such estate appears and files a claim thereto
with the court within five (5) years from the date of such
judgment, such person shall have possession of and title to
the same, or if sold, the municipality or city shall be
accountable to him for the proceeds, after deducting
reasonable charges for the care of the estate; but a claim
not made within said time shall be forever barred.
Sec. 5. Other actions for escheat.—Until otherwise
provided by law, actions for reversion or escheat of
properties alienated in violation of the Constitution or of
any statute shall be governed by this rule, except that the
action shall be instituted in the province where the land lies
whole or in art. in

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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RULE 91. ESCHEATS

Escheat defined
Escheat is a proceeding whereby the real and
personal property of a deceased person become the
property

318

of the State upon his death Without leaving any Will or legal
heirs. It is not an ordinary action but a special proceeding
which should be commenced by petition and not by com.
plaint (Municipal Council of San Pedro, Laguna v.
Co/egio de san Jose, GR L-45460, Feb. 25, 1938, 65 Phil.
318),
Escheat proceedings also refer to the judicial process in
which the state, by virtue of its sovereignty, steps in and
claims abandoned, left vacant or unclaimed property with.
out an interested person having a legal claim thereto (RCBC
v. Hi-Tri Development Corp., GR 192413, June 13,
2012, 672 SCRA 514),

Nature of escheat proceedings

Escheat is not an ordinary action but a special
proceeding. The proceeding should be commenced by
petition and not by complaint.
In a special proceeding, the petitioner is not the sole and
exclusive interested party. Any person alleging to have a
direct right or interest in the property sought to be escheated
is likewise an interested party and may appear and oppose
the petition for escheat (Municipal Council of San Pedro,
Laguna v. Colegio de San Jose, Inc., supra.).
Escheat proceeding an exercise of state
sovereignty

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 Escheat is a proceeding, unlike that of succession or
assignment, whereby the state, by virtue of its sovereignty
steps in and claims the real or personal property of a person
who dies intestate leaving no heir. In the absence Of a lawful
owner, a property is claimed by the state to forestall an open

"invitation to self-service by the first comers.

RULE 91

319

Since escheat is one of the incidents of sovereignty, the

state may, and usually does, prescribe the conditions and limits
the time within which a claim to such property may be made.
The procedure by which the escheated property may be
recovered is generally prescribed by statue and a time limit is
imposed within which such action must be brought (Republic v.
CA, GR 143483, Jan. 31, 2002, 375 SCRA 484).

Legal basis of state's right to receive

property in escheat; state as last
intestate heir
The provisions of Articles 978 to 1014 of the Civil
Code which relate to the order of intestate succession
enumerate with meticulous exactitude the intestate heirs of
a decedent with the State as the final intestate heir (Rosales
v. Rosales, GR L-40789, Feb. 27, 1987, 148 SCRA 69).
SECTION 1 RULE 91. WHEN AND BY WHOM PETITION
FILED

When to file the petition

The petition may be filed when a person dies intestate,
seized of real or personal property in the Philippines, leaving no
heir or person entitled by law to the same (Sec. 1, Rule 91,
ROC).

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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Who and where to file the petition

The Solicitor General or his representative in behalf

of the Republic of the Philippines, may file a petition in
the Regional Trial Court of the province where the
deceased last resided or in which he had estate, if he
resided out of
320

the Philippines, setting forth the facts, and praying that the
estate of the deceased be declared escheated (Ibid.).

Requisites for the filing of petition

In order that a proceeding for escheat may prosper, the
following requisites must be present.
(a) That a person died intestate;
(b) That he left no heirs or person by law entitled to the
same; and
(c) That the deceased left properties (City of Manila v.
Roman Catholic Archbishop of Manila, GR 10033,
Aug. 30, 1917, 36 Phil. 815).

Remedy of respondent against petitioner;

period for filing a claim
When a petition for escheat is clearly groundless for the court
to proceed to the inquisition provided by law, an interested party
should not be disallowed from filing a motion to dismiss the
petition which is untenable from all standpoints. And when the
motion to dismiss is entertained upon this ground, the petition may
be dismissed unconditionally and the petitioner is not entitled to be
afforded an opportunity to amend his petition (Go Poco Grocery v.
Pacific Biscuit Co., GR L-43697 and L-442200, Mar. 31, 1938, 65
Phil. 443).
In this jurisdiction, a claimant to an escheated property
must file his claim "within five (5) years from the date of such
judgment, such person shall have possession Of and title to the
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same, or if sold, the municipality or city shall be accountable to
him for the proceeds, after deducting the estate; but a claim not
made shall be barred forever." The 5-year period is not a device
capriciously con-
RILE91

323
to Filipino citizens (Republic v. Registty of Deeds of
Roxas city, GR 158230, July 16, 2008, 558 SCRA 450).
supewening events that cure the constitutional
proscription on alien buyers
Where a Filipino citizen sells land to an alien who later
sells the land to a Filipino, the invalidity of the first transfer
is corrected by the subsequent sale to a citizen. Similarly,
where the alien who buys the land subsequently acquires
Philippine citizenship, the sale is validated since the
purpose of the constitutional ban to limit land ownership to
Filipinos has been achieved. In short, the law disregards the
constitutional disqualification of the buyer to hold land if
the land is subsequently transferred to a qualified party or
the buyer himself becomes a qualified party (Chavez v.
Public Estates Authority, GR 133250, May 6, 2003, 451
Phil. 1).

Government as real party in interest

in actions for reversion; action for
reversion imprescriptible
In all actions for the reversion to the Government of
lands of the public domain or improvements thereon, the
Republic of the Philippines is the real party in interest. The
action shall be instituted by the Solicitor General or the
Officer acting in his stead, in behalf of the Republic of the
Philippines (OHigas & Co., Ltd. Partnership v. Ruiz, No.
L33952, Mar. 9, 1987, 148 SCRA 326).
Moreover, such action does not prescribe. Prescripti0n
and laches will not bar actions filed by the State to recover

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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its property acquired through fraud by private individual
(Republic v. Heirs of Felipe A/ejaga, Sr., GR 146030, Dec.
3, 2002, 393 SCRA 361).
324

Unclaimed balances or dormant bank

accounts defined; venue of action
Unclaimed balances (dormant accounts) include credits
or deposits of money, bullion, security or other evidence of
indebtedness of any kind, and interest thereon with banks,
buildings and loan associations, and trust core porations, as
hereinafter defined, in favor of any person known to be dead
or who has not made further deposits or withdrawals during
the preceding ten (10) years or more" (Unclaimed Balances
Act orAct 3936, as amended).
Escheat under the Unclaimed Balances Acts must
be filed in the RTC of the place where the dormant
deposits are found.
Custody and use of escheated unclaimed
balances
The unclaimed balances, together with the increase
and proceeds thereof, shall be deposited with the
Treasurer of the Philippines to the credit of the
Government of the Republic of the Philippines to be used
as the National Assembly (now the Congress) may direct
(Unclaimed Balances Act or Act 3936, as amended by
PD 679, Sec. 1).
Extent of state's inquiry into dormant accounts
In the case of dormant accounts, the state inquires into
the status, custody, and ownership of the unclaimed balance
to determine whether the inactivity was brought about by the
fact of the depositor's:
(1) death; or
(2) absence; or

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 (3) abandonment (Act 3936, as amended by PD 679'
Sec. 1)
RULE 91
325

Escheat of dormant accounts and remedies of

claimants
If after the proceedings the property remains without a
lawful owner interested to claim it, the property shall be
reverted 'to the state "to forestall an open invitation to
selfsetvice by the first comers" (Republic v. CA, GR
127060, Nov. 19, 2002, 426 Phil. 177).
However, if interested parties have come fomard and
lain claim to the property, the courts shall determine
whether the credit or deposit should pass to the claimants or
be forfeited in favor of the state (RCBC v. Hi-Tri
Development corp., GR 192413, June 13, 2012, 672 SCRA
514).
Escheat not a proceeding to punish depositors
Escheat is not a proceeding to penalize depositors for
failing to deposit to or withdraw from their accounts. It is a
proceeding whereby the state compels the surrender to it of
unclaimed deposit balances when there is substantial ground for
a belief that they have been abandoned, forgotten, or without an
owner (Ibid.).
System for notifying depositors of unclaimed balances;
purpose of initial notice
Section 2 of Act No. 3936 or the Unclaimed Balances Act sets a
detailed system for notifying depositors of unclaimed balances. This
notification is meant to inform them that their deposit could be
escheated if left unclaimed. Accordingly, before filing a sworn
statement, banks and Other similar institutions are under
obligation to communi-

cate with owners of dormant accounts.

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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The purpose of this initial notice is for a bank to determine

whether an 'inactive account has indeed been un-

326

claimed, abandoned, forgotten or left without an owner. If the

depositor simply does not wish to touch the funds in the
meantime, but still asserts ownership and dominion over the
dormant account, then the bank is no longer obligated to
include the account in its sworn statement (Security Savings
Bank v. State of California, 263 U.S. 282 [1923]).

What the State is interested in

It is not the intent of the law to force depositors into
unnecessary litigation and defense of their rights as the state
is only interested in escheating balances that have been
abandoned and left without an owner (RCBC v. HiTri
Development corp., GR 192413, June 13, 2012, 672 SCRA
514).

Bank's liability after unclaimed balances are

escheated

In case the bank complies with the provisions of the

law and the unclaimed balances are eventually escheated
to the Republic, the bank "sha// not thereafter be liable to
any person for the same and any action which may be
brought by any person against in any bank xxx for
unclaimed balances so deposited xxx shall be defended
by the Solicitor General without cost to such bank" (Act
3936, as amended by PD 679[1975]).
Otherwise, should it fail to comply with the legally
outlined procedure to the prejudice of the depositor, the bank
may not raise the defense provided under Section 5 of Act
No. 3936, as amended, (RCBC v. Hi-Tri Development corp.,
GR 192413, June 13, 2012, 672 SCRA 514) which provides:

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 RULE91

329

Interested party defined

In estate proceedings, an "interested party" is one
who:
(1) would be benefited in the estate such as an heir; or

(2) has a claim against the estate such as a

creditor (Locsin, Sr. v. Locsin, Jr., GR
146737, Dec. 10, 2001, 423 Phil. 192).
Judgment in escheat proceedings; when
conclusive
A judgment in escheat proceedings when rendered by a
court of competent jurisdiction is conclusive against all
persons with actual or constructive notice, but not against
those who are not parties or privies thereto (Republic v. CA
& Solano, GR 143483, Jan. 31, 2002, 375 SCRA 484).
Burden to establish title to property
escheated rests on intervenor
Where a person comes into an escheat proceeding as a
claimant, the burden is on such intervenor to establish his title to
the property and his right to intervene (Ibid.).

SECTION 4 RULE 91. WHEN AND BY WHOM CLAIM TO

ESTATE FILED

Period within which a claimant must file his

claim

A claimant to an escheated property must file his

claim '(within five (5) years from the date of such
judgment, such person shall have possession of and title
to the same, or if sold, the municipality or city shall be
account-
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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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able to him for the proceeds, after deducting the estate
(Art. 1014, CC); but a claim not made shall be barred
for-

The 5-year period is not a device capriciously con.

jured 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
(Republic v. CA & Solano, GR 143483, Jan. 31, 2002,
375 SCRA 484).
Solicitor General empowered to institute
escheat proceedings against alien
transferee of land
Under Section 7, Batas Pambansa B/g. 185, the
Solicitor General or his representative shall institute escheat
proceedings against its violators. Although the law does not
categorically state that only the Government, through the
Solicitor General, may attack the title of an alien transferee
of land, it is nonetheless correct to hold that only the
Government, through the Solicitor General, has the
personality to file a case challenging the capacity of a person
to acquire or to own land based on noncitizenship.
This limitation is based on the fact that the violation is
committed against the State, not against any individual; and
that in the event that the transferee is adjudged to be not a
Filipino citizen, the affected property reverts to the State, not
to the previous owner or any Other individual (Ba/ais-
Mabanag v. Register of Deeds of Quezon City, GR 153142,
Mar. 29, 2010, 617 SCRA 1).

SECTION 5 RULE 91. OTHER ACTIONS FOR ES-

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 RULE
92 to 97

333

The basis of the power is the Doctrine of Parens

patriae which means the government as guardian of the
rights of the people (Government of the Philippine Islands
v. E/ Monte De Piedad y Caja De Ahorras De Manila, GR
L-9959, Dec. 13, 1916, 35 Phil. 728).
Nature and purpose of guardianship
A guardianship is a 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. A guardianship is
designed to further the ward's well-being not that of the
guardian. It is intended to preserve the ward's property as
well as to render any assistance that the ward may
personally require.
It has been stated that while custody involves
immediate care and control, guardianship indicates not
only those responsibilities but those of one in loco parentis
as well (Francisco v. CA, GR L-57438, Jan. 3, 1984, 212
Phil. 346).

Kinds of guardians according to the

scope or extent of powers
Guardians may be classified as follows:
(a) Guardian of the person is one who has been
lawfully invested with the care of the person of a
minor whose father is dead. His authority is
derived out of that of the parent;
(b) Guardian of the property is one appointed
by the court to have the management of
the estate of a
minor or an incompetent person; and

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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(c) General guardian is one appointed by the court to
have the care and custody of
the person and of all
the property of the ward.
332

RULES 92 TO 97. GENERAL

GUARDIANS AND
GUARDIANSHIP, AS AMENDED BY AM 03-02-
05-SC
[MAY 01, 20031 RULE ON GUARDIANSHIP
OF MINORS
Rules amended by AM-03-02-05-SC
Rules 92 to 97 of the Rules of Court have been
amended by AM-03-02-05-SC dated April 1, 2003.
Guardianship of incompetents who are not minors
continues to be governed by the aforesaid provisions of the
Rules of Court while the guardianship of minors is now
covered by the latter guidelines promulgated by Supreme
Court.

Scope of guardianship
While Section I(c), Rule 72 of the Rules of Court mentions
"guardianship and custody of children", guardianship is not
only limited to "children" but also extends to "incompetents. "

Guardianship and guardian defined; parens

patria as basis of the power
Guardianship is the power of protective authority given
by law and imposed on an individual who is free and in
enjoyment of his rights over one whose weakness on
account of his age or other infirmity renders him unable to
protect himself, and is intended primarily to safeguard the
rights and interests of minors and incompetent persons.
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 RULE
guardian is a person lawfully invested with power and
charged with the duty of taking care of a person who for
some peculiarity or status or defect of age' understanding or
self-control is considered incapable Of administering his
own affairs (Black's Law Dictionary, Fifth
97
333

The basis of the power is the Doctrine of Parens patriae

which means the government as guardian of the rights of the
people (Government of the Philippine Islands v. El Monte De
Piedad y Caja De Ahorras De Manila, GR L-9959, Dec. 13,
1916, 35 Phil. 728).
Nature and purpose of guardianship
A guardianship is a 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. A guardianship is
designed to further the ward's well-being not that of the
guardian. It is intended to preserve the ward's property as
well as to render any assistance that the ward may
personally require.
It has been stated that while custody involves immediate
care and control, guardianship indicates not only those
responsibilities but those of one in loco parentis as well
(Francisco v. CA, GR L-57438, Jan. 3, 1984, 212 Phil. 346).

Kinds of guardians according to the

scope or extent of powers
Guardians may be classified as follows:
(a) Guardian of the person is one who has been lawfully
invested with the care of the person of a mi nor whose
father is dead. His authority is derived out of that of
the parent;
(b) Guardian of the property is one appointed by the court
to have the management of the estate of a minor or an
incompetent person; and

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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c
( ) General guardian is one appointed by the court to
have the care and custody of the person and of all
the property of the ward.
334

Kinds of guardians according to constitution

Guardians may also be categorized as follows:
(1) Legal guardians are those deemed as guardians
without need of a court appointment (Art. 225, RA
8369);
(2) Guardians ad /item are those appointed by courts of
justice to prosecute or defend a minor, insane or person
declared to be incompetent in an action in court; and
(3) Judicial guardians are those who are appointed by
the court in pursuance of a law as guardians for
insane persons, prodigals, minor heirs or deceased,
war veterans and other incompetent persons.

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 RULE

92
337

(c) Actions for support and acknowledgment;

(d) Summary judicial proceedings brought under the
provisions of EO 209 or the Family Code;
(e) Petitions for declaration of the status of children as
abandoned, dependent or neglected children;

petitions for voluntary or involuntary commitment

of children; the suspension, termination, or
restoration of parental authority; and other cases
cognizable under Presidential Decree No. 603, Ex-
ecutive Order No. 56, Series of 1986, and other
related laws;
(f) Petitions for the constitution of family homes;

(g) Cases against minors cognizable under the Dangerous

Drugs Act, as amended;
(h) Violations of Republic Act No. 7610, the Anti
Child Abuse Law, as amended by RA 7658; and
(i) Cases of domestic violence against women and their
children (VAWC).

Venue for incompetents

Guardianship of a person or estate of an incompetent may
be instituted in the RTC of the province where he resides or, in
case of a non-resident incompetent, where his property is
located (Sec. f, Rule 92, ROC).
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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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Conflict of title to property to be litigated in a separate
proceeding
Guardianship proceedings are solely concerned with the
ward's care and custody and the proper administration or
management of his properties, Conflicts regarding ownership
or title to the property in the hands of the guardian, in his
capacity as such, should be litigated in a separate
338

proceeding (Viloria v. Administrator of Veteran Affairs, GR

L-9620, June 28, 1957, 101 Phil. 762).

Examination ofperson concealing or having

embezzled ward's propeny
Where the right or title of said ward is clear and
indisputable, the court may issue an order directing the delivery
or return of any property embezzled, concealed or conveyed
which belongs to a ward (Casti//o v. Bustamante, GR 44466,
sept. 30, 1937, 64 Phil. 839).
Where title to any property said to be embezzled,
concealed or conveyed is in question, the determination of
said title or right whether in favor of the ward or in favor of
the person said to have embezzled, concealed or conveyed
the property must be determined in a separate ordinary
action and not in guardianship proceedings (Cui v. Piccio,
GRL-5131, Ju/y31, 1952, 91 Phil. 712).

When the guardianship court may rule on

the delivery or return of the property of a
ward in the same proceedings
The determination of a title or right whether in favor
of the ward or in favor of the person said to have
embezzled, conc3aled or conveyed the property must be
determined in a separate ordinary action and not in
guardianship proceedings. If the right or title of the ward
to the property is clear and indisputable, the guardianship
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 RULE
court may issue an order directing its delivery or return
(Paciente v, Dacuycuy, GR L-58319, June 29, 1982, 114
SCRA 924).
SECTION 2 RULE 92. MEANING OF WORD "INCOM-

92
341

sECTION3 RULE 92. TRANSFER OF VENUE

Transfer of proceedings to another

venue
The guardianship court may transfer the proceeding to the
court of another province or municipality where the ward has
acquired real property if he has transferred his residence there
and the latter court shall have full jurisdiction to continue the
proceedings without requiring additional court docket fees (Sec.
3, Rule 93, ROC).

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342

RULE 93
Sec. 1. Who ian
for resident.—Any APPOINTMENT OF GUARDIANS
behalf of a resident (FOR INCOMPETENTS)
lawful guardian, for
the appointment may petition for
estate, or both, appointment of guard.
Federal relative, friend, or other
Administration pines person on incompetent who
may also and the has no parent or may petition
Director who should the court having jurisdiction
be leper. of a general guardian for the
person or of such
Sec. 2. pointment incompetent. An officer of
of a known to the the of the United States in the
petitioner: Philipfile a petition in favor
of a ward thereof, of Health,
(a) The in favor of an insane person
(b) The hospitalized, or in favor of an
necessary isolated
(c) The names,
of the him Contents of petition.—A
in their petition for the apgeneral
(d) The guardian must show, so far as
probable
(e) The name jurisdictional facts;
guardianshi incompetency rendering the
appointment or convenient;
p
ages, and residences of the
The petition shall relatives incompetent, and of
tion or verification the persons having care;
uardianshi
of value and character of his
estate;

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RULE
of the person for whom letters Of are
prayed. be verified; but no defect in the
petishall render void the issuance of letters

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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345

and dumb who are unable to read and write, those who are of unsound
mind, even though they have lucid interva/s, and persons not being of
unsound mind, but by reason of age, disease, weak mind,
and other similar causes, cannot, without outside aid, take

care of themselves and manage their propeåy, becoming

thereby an easy prey for deceit and exploitation" (Alamayri v. Pabale,
GR 151243, Apr. 30, 2008, 553 SCRA 146).

purposes of hearing a petition for the appointment of

guardian
The objectives of an RTC hearing a petition for
appointment of a guardian under Rule 93 of the Rules of
Court is to determine the following:
(a) whether a person is indeed a minor or an incompetent
who has no capacity to care for himself and/or his
properties; and
(b) who is most qualified to be appointed as his
guardian.
The rules reasonably assume that the people who best
could help the trial court settle such issues would be those who
are closest to and most familiar with the supposed minor or
incompetent, namely:
(1) his relatives living within the same province; and/or
(2) the persons caring for him (Ibid).

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RULE 93

346

(a) Any relative; or

(b) A friend; or
(c) Other person in behalf
(a) Any relative; or of the resident
law-
(b) Other person in behalf of incompetent who has
a minor; or no parents or ful
(c) The minor himself if guardian; or
fourteen (14) years of age
or over; or
(d) The Director of Health
in favor of an insane
(d) The Secretary of the person who should be
Department of Social hospitalized or in
Welfare and favor of an isolated
Development (DSWD) leper (Sec. 1, Rule 93,
and by the Secretary of ROC); or
the Department of
Health (DOH), in the case (e) Anyone interested in
of an insane minor who the estate of a non-
needs to be hospitalized resident competent
(Sec. 2, AM 03-0205-SC). (Sec. 6, Rule 93, Roc .

SECTION 2 RULE 93. CONTENTS OF PETITION

What the petition should contain; petition should
be verified
A petition for the appointment of a general guardian
must show, so far as known to the petitioner:

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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(a) The jurisdictional facts;
(b) The incompetency rendering the appointment
necessary or convenient;
349

Disqualifications, removal of a guardian

A guardian is or becomes incompetent to serve .the trust if he is so
disqualified by mental incapacity, conviction of crime, moral
delinquency or physical disability as to be
prevented from properly discharging the duties of his
office.

A guardian, once appointed may be removed in case

he becomes insane or otherwise incapable of discharging
his trust or unsuitable therefor, or has wasted or
mismanaged the estate, or failed for thirty (30) days after
it is due to render an account or make a return (Ibid.).

Purposes of the hearing requirement

The objectives of an RTC hearing a petition for ap-

pointment of a guardian under Rule 93 of the Rules of Court is to

determine, first, whether a person is indeed a minor or an
incompetent who has no capacity to care for himself and/or his
properties; and, second, who is most qualified to be appointed as
his guardian. The rules reasonably assume that the people who
best could help the trial court settle such issues would be those
who are closest to and most familiar with the supposed minor or
incompetent, namely, his relatives living within the same province
and/or the persons caring for him (Alamayri v. Paba/e, supra.).

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RULE 93

Creditors of the incompetent need not be

identified and notified
The rules do not necessitate that creditors of the minor Or
incompetent be likewise identified and notified. The reason is simple:
because their presence is not essential to the proceedings for
appointment of a guardian. It is al most a given, and
understandably so, that they will only

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 350 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION

insist that the supposed minor or incompetent is actually

capacitated to enter into contracts, so as to preserve the validity of
said contracts and keep the supposed minor or incompetent obligated to
comply therewith (Ibid.).
SECTION 3 RULE 93. COURT TO SET TIME FOR HEARING.
NOTICE THEREOF

Requirements of publication and notice of

hearing
There is no requirement for publication only notice of hearing
except in the case of a non-resident incompetent. However,
service of notice upon an incompetent is mandatory and
jurisdictional. If the person is insane, service of notice upon the
director of the hospital where he is hospitalized is sufficient.

SECTION 4 RULE 93. OPPOSITION TO PETITION

Any interested person may contest the petition by filing a
written opposition on the ground of competency of the alleged
incompetent or the unsuitability of the person for whom letters are
prayed, and pray that the petition be dismissed or that letters of
guardianship issue to himself or to any suitable person named in
the opposition (Sec. 4, Rule 93, ROC).

SECTION 5. RULE 93. HEARING AND ORDER FOR LETTERS TO

ISSUE

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 RULE 93

Hearing of petition and appointment of guardian

The alleged incompetent, if able to attend,

must be present at the hearing of the
petition and it must be shown that the required notice
has been given. The court shall
351

then hear the evidence of the parties in support of their

respective allegations and, if the person in question is an
incompetent, it shall appoint a suitable guardian of his person or
estate, or both (Sec. 5, Rule 93, ROC).

SECTION 6 RULE 93. WHEN AND How GUARDIAN FOR NON-RESIDENT

APPOINTED. NOTICE

Appointment of a guardian for the estate

of a nonresident incompetent
Any relative or friend of a person liable to be put under
guardianship who resides outside the Philippines but has estate
therein, or anyone interested in his estate, in expectancy or othemise,
may petition the court for the appointment of a guardian for the
estate, and if, after notice and hearing, the court is satisfied that such
nonresident is an incompetent, it may appoint a guardian for such
estate (Sec. 6, Rule 93, ROC).

SECTION 7, RULE 93. PARENTS AS GUARDIANS

Father or mother of the child under parental
authority as guardian
If the property of the child under parental authority is worth
two thousand pesos (P2,000.00) or less, the father or the mother
shall be his legal guardian without need of court appointment.
However, if the property of the child is worth more than
P2,000.00, the father or the mother shall be considered guardian
of the child's property and, as such, they shall file the petition
required by Section 2, Rule 93 of the Rules of Court. For good
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 352 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
reasons, the court may, however, appoint another suitable person
(Sec. 4, Rule 93, ROC).
This rule is evidently drawn from the provisions of ticles
320 and 326 of the Civil Code which state:
"Art. 320. The father, or in his absence the mother, is the legal
administrator of the property pertaining to the child under parental
authority. If the property is worth more than two thousand pesos,
the father or mother shall give a bond subject to the approval of the
Court of First Instance (now the Regional Trial Court).
"Art. 326. When the property of the child is worth more than
two thousand pesos, the father or mother shall be considered a
guardian of the child's property, subject to the duties and
obligations of guardians under the Rules of Court."

Joint legal guardianship by the parents under

the Family Code; guardianship bond
This provision was, however, modified by the Art 225 of the
Family Code (Executive Order No, 209, as amended by Executive
Order No. 227) which provides:
"Art. 225. The father and the mother shall jointly exercise
legal guardianship over the property of the unemancipated common
child without the necessity of a court appointment. In case of
disagreement, the father's decision shall prevail, unless there is a
judicial order to the contrary.
"Where the market value of the property or the annual income
of the child exceeds P50,000, the parent concerned shall be required
to furnish a bond in

such amount as the court may determine, but not less than ten per
centum (10%) of the value of the property or annual income, to
guarantee the performance of the obligations prescribed for general
guardians. 353

SECTION 8 RULE 93. SERVICE OF JUDGMENT

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 RULE 93

The final orders or judgments of the court under Rule 93 of

the Rules of Court shall be served upon the civil registrar of the
municipality or city where the incompetent person resides or
where his property or any part thereof is

situated (Sec. 8, Rule 93, ROC).

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 354 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
RULE 94
BONDS OF GUARDIANS
(FOR INCOMPETENTS)
1 . Bond to be given before issuance of letters; Conditions.—
Before a guardian appointed enters execution of his trust, or letters
of guardianship shall give a bond, in such sum as the court
diconditioned as follows:
To make and return to the court, within three (3) months, a
true and complete inventory of all the estate, real and
personal, of his ward which shall come to his possession or
knowledge or to the possession or knowledge of any other
person for him;
To faithfully execute the duties of his trust, to manage and dispose
of the estate according to these rules for the best interests of the
ward, and to provide for the proper care, custody, and education
of the ward;
To render a true and just account of all the estate of the ward
in his hands, and of all proceeds or interest derived therefrom,
and of the management and disposition of the same, at the
time designated by these rules and such other times as the
court directs; and at the expiration of his trust to settle his
accounts with the court and liver and pay over all the estate,
effects, and moneys remaining in his hands, or due from him on
such settlement, to the person lawfully entitled thereto;

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 RULE
94

(d) To perform all orders of the court by him to be

Sec. 2. When new bond may be required and o/d

sureties discharged.—Whenever it is deemed necessary, the
court may require a new bond to be given by the guardian,
and may discharge the sureties on the old bond from further
liability, after due notice to interested persons, when no
injury can result therefrom to those interested in

Sec. 3. Bonds to be filed; Actions thereon.—Every bond

given by a guardian shall be filed in the office of the clerk of
the court, and, in case of the breach of a condition thereof,
may be prosecuted in the same proceeding or in a separate
action for the use and benefit of the ward or of an other
erson le all interested in the estate.

RULE 94. BONDS OF GUARDIANS

(FOR INCOMPETENTS)
SEC. 1, RULE 94. BOND TO BE GIVEN BEFORE
ISSUANCE OF LETTERS• AMOUNT' CONDITIONS

Guardianship bond; conditions

Before a guardian appointed by the court shall enter upon the
execution of his trust or before letters of guardianship shall issue,

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 356 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
he shall give a bond in such sum as the court shall direct, subject to
the conditions enumerated under Section 1, Rule 94 of the Rules of
Court.

Conditions of the bond of a guardian

Under Section 1, Rule 94 of the Rules of Court, the
Conditions for the bond of a guardian are:
(1) To file with the court complete inventory of the estate of
the ward within three (3) months;
(2) To faithfully execute the duties of his trust to manage
and dispose of the estate according to the Rules for
the best interests of the ward, and to provide for the
proper use, custody, and education of the ward;
(3) To render a true account of all the estate, and of the
management and disposition of the same;
(4) To settle his accounts with the court and deliver over all
the estate remaining in his hands to the person entitled
thereto; and
(5) To perform all orders of the court to be performed by him
(Sec. 1; sec. 14, AM 03-02-05-SC).

Necessity and purpose of the bond

The bond requirement is necessary for the protection of the
property of the incompetent and for the purpose of assuring an
honest administration of his funds during his incompetency.
Incompetents are wards of the court and their rights must be
guarded zealously. Hence, No person can qualify and act as a
guardian without first complying with this indispensable condition
precedent.

SECTION 2 RULE 94. WHEN NEW BOND MAY BE

REQUIRED AND OLD SURETIES DISCHARGED

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 RULE

New bond to be required as needed

Whenever necessary, the court may require a new bond to be
given by the guardian. After notice to interested persons, the
sureties on the old bond may then be discharged from further
liability when no injury will result to interested parties (Sec. 2, Rule
94, ROC).
94
357

secTION3 RULE 94. BONDS To DE FILED. ncT10Ns THEREON

Breach of the bond's conditions; how

prosecuted
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 (Sec, 3, Rule 94, Roc).

Removal of guardian does not discharge him from

liability during his term
The removal of a guardian will not relieve him nor his
bondsmen from liability to the minors (or incompetents) during
the time that he was duly acting as such (Guerrero
v. Teran, GR L-4898, Mar. 19, 1909, 13 Phil. 212).
RULE 95
SELLING AND ENCUMBERING PROPERTY OF WARD
Sec. 1. Petition of guardian for leave to sell or encumber
estate.—When the income of an estate under guardianship is
insufficient to maintain the ward and his family or when it
appears that it is for the benefit of the ward that his real
estate or some part thereof be sold, or mortgaged or

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 358 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
otherwise encumbered, and the proceeds thereof put out at
interest, or invested in some productive security, or in the
improvement or security of other real estate of the ward, the
guardian may present a verified petition to the court by which
he was appointed setting forth such facts, and praying that an
order issue authorizing the sale or encumbrance.
Sec. 2. Order to show cause thereupon.—lf it seems probable
that such sale or encumbrance is necessary, or would be beneficial
to the ward, the court shall make an order directing the next of
kin of the ward, and all persons interested in the estate, to appear
at a reasonable time and place therein specified to show cause
why the prayer of the petition should not be granted.

Sec. 3. Hearing on return of order; Costs.—At the time

and place designated in the order to show cause, the court
shall hear the proofs and allegations of the petitioner and next
of kin, and other persons interested, together with their
witnesses, and grant or refuse the prayer of the petition as the
best interests of the ward require. The court shall make such
order as to costs of the hearing as may

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 RULE95

359
sec. 4. Contents of order for sale or encumbrance and how long
effective; Bond—if, after full examination, it appears that it is
necessary, or would be beneficial to the ward, to sell or encumber
the estate, or some portion of it the court shall order such sale or
encumbrance and that the proceeds thereof be expended for the
maintenance of the ward and his family or for the putting of the
same out at interest, or the investment of the same as the
circumstances may require. The order shall specify the causes why
the sale or encumbrance is necessary or beneficial, and may direct
that estate ordered sold be disposed of at either public or private
sale, subject to such conditions as to the time and manner of
payment, and security where a part of the payment is deferred, as in
the discretion of the court are deemed most beneficial to the ward.
The original bond of the guardian shall stand as security for the
proper appropriation of the proceeds of the sale, but the judge may,
if deemed expedient, require an additional bond as a condition for
the granting of the order of sale. No order of sale granted in
pursuance of this section shall continue in force more than one (1)
year after granting the same, without a sale being had.

Sec. 5. Court may order investment ofproceeds and

direct management of estate.—The court may authorize
and require the guardian to invest the proceeds of sales or
encumbrances, and any other of his ward's money in his
hands, in real estate or otherwise, as shall be for the best
interest of all concerned, and may make such other orders
for the management, investment, and disposition of the
estate and effects, as circumstances ma re uire.
360

RULE 95. SELLING AND ENCUMBERING

PROPERTY OF WARD

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION

SECTION RULE 95. PETITION OF GUARDIAN FOR LEAVE TO SELL OR

ENCUMBER ESTATE

Legal guardian's limited power of alienation

The legal guardian only has the plenary power of ad.
ministration of the minor's (or incompetent's) property. It does
not include the power of alienation which needs judicial authority
(Cabales v. CA, GR 162421, Aug. 31, 2007, 531 SCRA 691).

Guardian bereft of authority to sell estate sans

leave of court
A guardian has no authority to sell real estate of his ward, merely
by reason of his general powers, and in the absence of any special
authority to sell conferred by will, statue, or order of court. A sale of
the ward's realty of guardian without authority of the court is void
(Laforga v. Laforga, GR 7165, Mar. 26, 1912, 22 Phil., 374).

Grounds when guardian may be authorized to sell or

encumber estate
The guardian may file a verified petition to the court that he
be authorized to sell or encumber the estate under his
administration when any of the following circumstances occur:

(a) When the income of the estate is insufficient to maintain

the ward and his family; or
(b) When the income of the estate is insufficient to maintain
and educate the ward who is a minor (or incompetent);
or
361

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 RULE95

(c) When it appears that such sale or en cumbrance

of the estate or some part thereof will be for the benefit of the
ward (Sec. 1, Rule 95,

Lack of verification not a jurisdictional defect

Lack of verification of a petition filed in a probate court for the
sale of real property belonging to the estate of a minor (or
incompetent) is not a jurisdictional defect (Tavera v, El Hogar
Filipino, Inc., GR L-45963, Oct. 12, 1939, 98 Phil. 481)

SECTION 2 RULE 95. ORDER TO SHOW CAUSE THEREUPON

S h o w - c a
patties

Should it appear probable that the sale or encumbrance of

the real estate of the ward or some part thereof is necessary or
would be beneficial to the ward, the court shall make an order
directing the next of kin of the ward and all persons interested in
the estate to appear at a reasonable time and place specified
therein to show cause why the prayer of the petition should not
be granted (Sec. 2, Rule 95, ROC).

Notice to next of kin jurisdictional

Notice to next of kin and interested persons is jurisdictional,

hence, failure to notify the next of kin shall be a ground for dismissal
of the petition under this Rule (Sinco Longa, GR L-27962, Feb. 14,
1928, 51 Phil. 507).

However, notice to "the next of kin to the ward, and all

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION

Persons interested in the estate, to appear before the

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 95
362

judge or court, at the time and place therein specified substantially

complied with and therefore no longer neces_ sary where the next of
kin to the ward and all persons in. terested in the estate are her
mother and guardian, uncles and aunt who all agreed to make the
transfer of their re. spective shares in the property to the corporation
(Tavera
v. El Hogar Filipino, Inc., GR L-5893, Feb. 28, 1956, 98 Phil. 481).

Next of kin defined

Next of kin refers to those persons who are relatives whose

relationship is such that they are entitled to share in the estate as
distributees. It is also defined as to mean not the next of kindred but
those relatives who share in the estate according to the statute of
distribution including those claiming per stripes or by representation
(Lopez v, Teodoro, GR L-3071, May 29, 1950, 86 Phil. 499).

SECTION 3, RULE 95. HEARING ON RETURN OF OR. DER. COSTS

Hearing of the petition and costs of suit

The court shall hear the proofs and allegations of the parties
and their witnesses and grant or deny the petition as the best
interests of the ward require. The court shall make such order as
to costs of the hearing as may be just (Sec. 3, Rule 95, ROC).

SECTION 4 RULE 95. CONTENTS OF ORDER FOR SALE OR

ENCUMBRANCE AND HOW LONG EFFEC-
TIVE. BOND

When the court may order the sale or

encumbrance of the estate
363

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
If the court, after full examination, finds that it is necessary
or would be beneficial to the ward to sell or encumber the
whole or part of the estate, it shall order such sale or
encumbrance and the proceeds thereof to be spent for the
maintenance of the ward and his family or for the putting of the
same out at interest, or the investment of the same as required
by the circumstances (Sec. 4, Rule 95, ROC)•

Order to specify the reasons for the

sale or encumbrance
The order shall specify the causes why the sale or
encumbrance is necessary or beneficial to the ward and may
direct that the estate be disposed of at either public or private
sale, subject to such conditions as to the time and manner of
payment and security in case a portion of the payment is
deferred, as the court deems most beneficial to the ward (Sec. 4,
Rule 95, ROC).

Presumption of ward's sufficient income

If the property was not sold within one (1) year from the
granting of the order, it shall be presumed that the ward has
sufficient income.

Authority to sell or encumber generally not

extendible
The authority to sell or encumber shall not extend be yond
one (1) year unless renewed by the court.

Bond and effectivity of order of sale

The original bond of the guardian shall stand as security for
the proper appropriation of the proceeds of the sale but the
court may, if it deems expedient, require an addi-

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 95

364

tional bond as a condition for the granting of the order of sale.

The authority to sell shall be in force only Within a period of one
(1) year from its grant (Sec. 4, Rule 95 ROC).

When subsequent confirmation of the sale

by the court unnecessary
Where the court's order expressly authorized the guardian
to execute and deliver to purchasers definitely named a deed of
conveyance to a parcel specifically described at a price already
fixed and it appears that the order was intended as the approval
itself of the sale that was already perfected or agreed upon by
the seller and the buyers, needing only judicial go-ahead signal
to reduce the agreement to the statutory form, it would be a
useless formality to submit the deed to the court for action in
the absence of any clear requirement or direction to that effect
(Sonano v. Latono, GR L-3408, Dec. 23, 1950, 87 Phil. 757).

Court's approval when may be made

A sale by the guardian of the property of the ward may be
approved before the deed is executed depending on the
intention of the court and providing that faithful compliance
with the conditions proposed or imposed has been made (Ibid.).

Guardian prohibited from acquiring the

property of his ward
The guardian, among other persons, cannot acquire by
purchase, even at a public or judicial auction, either in person or
through the mediation of another, the property Of

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 RULE95

365 the person or persons under his guardianship

(Art. 1491, cc).

Appeal is the proper remedy to

contest coutt's order authorizing sale
Appeal and not certiorari or mandamus is the proper
remedy against the court's order authorizing sale of the
ward's property (Lopez v. Teodoro, GR L-3071, May 29,
1950, 86 Phil. 499)

Sale cannot be collaterally attacked in

the registration proceedings
There exists a presumption that the sale of the ward's
estate is valid and as such the same cannot be attacked
collaterally in the registration proceedings. A separate action to
avoid or rescind the sale on the ground specified by law should
instead be filed (Margate v. Rabacal, GR L14302, Apr. 30, 1963,
7 SCRA 894).

SECTION 5 RULE 95. COURT MAY ORDER

INVESTMENT OF PROCEEDS AND DIRECT
MANAGEMENT OF ESTATE

Judicial authorization to invest

the proceeds of the sales or
encumbrances
The court may authorize and require the guardian to invest
the proceeds of the sales or encumbrances and any money of
his ward money in his possession, in real estate Or otherwise,
as shall be for the best interest of all con cerned and may make

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 RULE

367
such other orders for the management, investment, and
disposition of the estate and effects (sec. 4, Rule 95, ROC).

366

Coutt's approval of the annual

inventories and accounts amounts to
ratification of the acts of the guardian
Although the judicial authority referred to in Section 5 Rule 95
of the Rules of Court may not have been secured' prior to the
investment of the properties or funds of the ward, the court's
approval of the annual inventories and accounts submitted by the
guardian amounts to a ratifica. tion of the acts of the guardian and
compliance with the provisions of the rule aforecited (Stegner v.
Stegner, GR L-8532, Oct. 11, 1957, 102 Phi/. 131).

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
96

RULE 96 GUARDIAN
GENERAL POWERS AND DUTIES OF S
Sec. 1. To what guardianship shall extend—A
guardian appointed shall have the care and custody of
person of his ward, and the management the of estate, or
case may be.
his the management of the estate only, as
have the the
the The guardian of the estate of Philipguardia
a
nonresident shall management of all the n guardian-
estate of the ward within pines, and no court
other than that in which such was appointed
shall have jurisdiction over the ship, ward.—
Every of
Sec. 2. Guardian to pay debts of guardian his perif
must pay the ward's just debts out sonal sufficient;
estate and the income of his real estate, if an order
not, then out of his real estate upon
obtaining for the sale or encumbrance
collect
thereof. debts, must
settle all
Sec. 3. Guardian to settle accounts, and
receive all the
appearin actions for ward.—A guardian court, the
f
accounts o his ward, and demand, sue for, debtor,
estate
and debts due him, or may, with the approval and
of compound for the same and give efward in all
discharges to on receiving a fair and just person
dividend of the fects; and he shall appear for
and represent his actions and special
proceedings, unless another be appointed for and
proguardian
that purpose.
must without
waste, far as
may

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RULE

369
Sec. 4, Estate to be managed frugally, ceeds applied to
maintenance of ward.—A manage the estate of his ward frugally
and and apply the income and profits thereon, so be necessa to
the comfortable and suitable mainte-

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
370
nance of the ward and his family, if there be any; and if income
and profits be insufficient for that purpose guardian may sell
such
or encumber the real estate, upon authorized by order so to
the
being
do, and apply so much of proceeds as may be necessary to
the
such maintenance.
Sec. 5. Guardian may be authorized to join in Parti.
tion proceedings after hearing.—The court may authorize
the guardian to join in an assent to a partition of real or personal
estate held by the ward jointly or in common with but such
others,
authority shall only be granted after hear. upon such notice to
ing,
relatives of the ward as the court direct, and a careful
may
investigation as to the necessity propriety of the proposed
and
action.

Sec. 6. Proceedings when person suspected of em. bezzling

or concealing property of ward.—Upon complaint the
ofguardian or ward, or of any person having actual or
prospective interest in the estate of the ward as creditor, or
heir,otherwise, that anyone is suspected of having emconcealed,
or conveyed away any money, goods, interest, or a written
bezzled,
instrument, belonging to the ward his estate, the court may
or or
cite the suspected person to for examination touching such
appear
money, goods, inor instrument, and make such orders as will
terest,
secure estate against such embezzlement, concealment or
the
conveyance.

Sec. 7. Inventories and accounts of guardians, and

appraisement of estates.—A guardian must render to the an
inventory of the estate of his ward within three (3) after his
court
appointment, and annually after such appointment an
month
inventory and account, the rendition Of of which may be
s any
compelled upon the application of an interested person.
Such inventories and accounts shall be to b the uardian. All
sworthe estate of the ward de-
n
96

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RULE

371

in
scribed the inventory be appraised. In appraisement first
the court may request the assistance of one or more of shall
the inheritance tax appraisers. And whenever any the
property of the ward not included in an inventory
already rendered is discovered, or succeeded to, or
acquired by the ward, like proceedings shall be had for
securing an inventory and appraisement thereof within
three (3) months after such discovery, succession, or
acquisition.
Sec. 8. When guardian's accounts presented for
settlement.—Expenses and compensation allowed. Upon
the expiration of a year from the time of his appointment,
and as often thereafter as may be required, a guardian
must present his account to the court for settlement and
allowance. In the settlement of the account, the guardian,
other than a parent, shall be allowed the amount of his

reasonable expenses incurred in the execution of his

trust and also such compensation for his services as
the court deems just, not exceeding fifteen per centum
of the net income of the ward.

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
372
RULE 96. GENERAL POWERS AND DUTIES OF
GUARDIANS
SECTION 1 RULE 96. TO WHAT GUARDIANSHIP SHALL EXTEND

General powers and duties of guardians

The powers and duties of a guardian are:
(1 ) To have care and custody over the person of his ward,
and/or the management of his estate (Sec. 1, Rule 96,
ROC);

(2) To pay the just debts of his ward out of the latter's
estate (Sec. 2, Rule 96, ROC);
(3) To bring or defend suits in behalf of the ward, and, with
the approval of the court, compound for debts due the
ward and give discharges to the debtor (Sec. 3, Rule 96,
ROC);
(4) To manage the estate frugally and without waste and
apply the income and profits to the comfortable and
suitable maintenance of the ward and his family (Sec. 4,
Rule 96, ROC);
(5) To sell or encumber the real estate of the ward upon
being authorized to do so (Sec, 4, Rule 96, ROC); and
(6) To join in an assent to a partition of real or personal
estate held by the ward jointly or in common with
others (Sec. 5, Rule 96, ROC).

Prohibition against donation of properties

under guardianship

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RULE

373
Guardians and trustees are prohibited by Article 736 of the
Civil Code from making a donation of the properties entrusted
to them (Araneta v. Perez, GR L-18872, July 15, 1966, 17 SCRA
643).

Conflict of title to property where to be

litigated
Conflicts regarding ownership or title to the property in the
hands of the guardian, in his capacity as such, should be litigated
in a separate proceeding considering that guardianship
proceedings are solely concerned with the ward's care and
custody and the proper administration or management of his
properties (Viloria v. Administrator Of Veteran Affairs, GR L-
9620, June 28, 1957, 101 Phil. 762).

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 374
RYLE96

secTION 2 RULE 96. GUARDIAN To PAY DEBTS OF

WARD

Oder of liability of ward's property

Every guardian must pay the ward's just debts in the

following order:
(a) out of his personal estate and from the income of
his real estate, if sufficient; and
(b) if the income of his real estate be insufficient, then
out of his real estate, but only upon obtaining an
order for the sale or encumbrance thereof (Sec. 2,
Rule 96, ROC).

SECTION 3 RULE 96. GUARDIAN TO SETTLE ACCOUNTS,

COLLECT DEBTS, AND APPEAR IN ACTIONS FOR WARD

Responsibilities of a guardian
A guardian shall be responsible for the following:
(1) to settle all accounts of his ward;
(2) to demand, sue for and receive all debts due him or,
with the approval of the court, compound for the
same and give discharges to the debtor upon
receiving a fair and just dividend of the estate and
effects; and

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 RULE
(3) to appear for and represent his ward in all actions
and special proceedings unless another person be
appointed for that purpose (Sec. 3, Rule 96, ROC).
Authority of guardian ad litem to bind the
incompetent as to latter's estate
Ordinarily, a guardian ad [item has no authority to act
or bind a minor (or incompetent) in any transaction with
regard to his estate but he can however do so with the
approval of the court (Santo Domingo v. Santo Domingo, GR
L-10886, Apn 18, 1958, 103 Phil. 373),

SECTION 4 RULE 96. ESTATE TO BE MANAGED FRUGALLY AND

PROCEEDS APPLIED TO MAINTE. NANCE OF WARD

Guardian required to administer the

estate in a prudent manner
A guardian must manage the estate of his ward frugally
and without waste and apply the income and profits thereof,
so far as maybe necessary, to the comfortable and suitable
maintenance of the ward and his family, if there be any; and
if such income and profits be insufficient for that purpose,
the guardian may sell or encumber the real estate upon
being authorized by order to do so and apply so much of the
proceeds as may be necessary to such maintenance (Sec. 3,
Rule 96, ROC).

Guardian's right and duty to get possession and

control of ward's property
A person appointed by a competent court to be the
general guardian of both the person and the estate of a ward
is duty-bound to care for the latter's person, to attend to her
physical and spiritual needs, to assure her wellbeing, with
right to custody of her person in preference to relatives and

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
376
friends. It also became the guardian's right and duty to get
possession of and exercise control over
96 373

the ward's property, both real and personal, it being a rec

ognized principle that the ward has no right to possession or
control of his property during her incompetency (Cafiiza
v. CA, GR 110427, Feb. 24, 1997, 268 SCRA 640).
That right to manage the ward's estate carries with it
the right to take possession thereof and recover it from
anyone who retains it (Castillo v. Bustamante, GR 44466.
Sept. 30, 1937, 64 Phil. 839) and bring and defend such
actions as may be needful for this purpose (Juachon v.
Manalo, GR L-42, Jan. 20, 1947, 77 Phil. 1092 [unrepotted]).

When guardian may be held liable

for loss or injury to the ward
The guardian is mandated to act in good faith and
with the degree of reasonable diligence ordinarily
employed in the conduct of business affairs by men of
common prudence and should he fail to do so resulting
to loss or injury to the ward, he shall be held liable for
such loss.
SECTION 5 RULE 96. GUARDIAN MAY BE AUTHORIZED TO
JOIN IN PARTITION PROCEEDINGS AFTER HEARING

When guardian's authority to join partition

may be granted

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 RULE
The court may authorize the guardian to join in an
agreement to partition the real or personal estate held
by
the ward jointly or in common with others but such author
ity shall only be granted:
(a) after hearing;

(b) upon such notice to relatives of the ward as the

court may direct; and
(c) following a careful investigation as to the necessity
and propriety of the proposed action (Sec. 5, Rule 96,
ROC).

SECTION 6 RULE 96. PROCEEDINGS WHEN THE PERSON

SUSPECTED OF EMBEZZLING OR CON. CEALWG PROPERTY OF
WARD

Guardianship court generally has no

power to order delivery to guardian of
property found to be embezzled,
concealed or conveyed; exception
The jurisdiction of the court in guardianship proceedings,
ordinarily, is to cite persons suspected of having embezzled,
concealed or conveyed the property belonging to the ward for
the purpose of obtaining information which may be used in an
action later to be instituted by the guardian to protect the right
of the ward.
Generally, the guardianship court exercising special and
limited jurisdiction cannot actually order the delivery of the
property of the ward found to be embezzled, concealed or
conveyed. Only in extreme cases, where property clearly
belongs to the ward or where his title thereto has been
already judicially decided, may the court direct its delivery

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
378
to the guardian (Cui v. Piccio, GR L-5131, July 31, 1952, 91
Phil. 712).
In effect, there can only be delivery or return of the
embezzled, concealed or conveyed property of the ward,
where the right or title of said ward is clear and
undisputable. However, where title to any property said to
be embezzled, concealed or conveyed is in dispute the
determination of said title or right whether in favor of the
person said to have embezzled, concealed or conveyed the
property must be determined in a separate ordinary action
and
96
375

not in guardianship proceedings (Parco v. CA, GR L-

Purpose of the Rule

The purpose of Section 6, Rule 96 is merely to elicit
information or secure evidence from the person suspected of
having embezzled, concealed or conveyed away any personal
property of the ward. In such proceeding, the court has no
authority to determine the right of property or to order
delivery thereof. If after the examination the court finds
sufficient evidence showing ownership on the part of the
ward, it is the duty of the guardian to bring the proper action
(Cui v. Piccio, supra.).

SECTION 7 RULE 96. INVENTORIES AND ACCOUNTS

OF GUARDIANS AND APPRAISEMENT OF ESTATES

Responsibility of the guardian to

render inventories and accounts

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 RULE
A guardian must render to the court an inventory of the
estate of his ward within three (3) months after his
appointment and annually after such appointment an
inventory and account the rendition of any of which may be
compelled upon the application of an interested person.
All the estate of the ward described in the first
inventory shall be appraised with the assistance of one
or more Of the inheritance tax appraisers as may be
requested by the court.
Whenever any property of the ward not included in an
inventory already rendered is subsequently discovered,
SUcceeded to or acquired by the ward, similar proceedings
shall be had for securing an inventory and appraisal thereof
within three (3) months after such discovery, suc_ cession or
acquisition (Sec. 7, Rule 96, ROC).

SECTION 8 RULE 96. WHEN GUARDIAN'S Ace

COUNTS PRESENTED FOR SETTLEMENT. EXPENSEs
AND COMPENSATION ALLOWED

Reasonable expenses and compensation for

guardian's services allowed
Upon the expiration of a year from the time of his
appointment and as often thereafter as may be required, a
guardian must present his account to the court for
settlement and allowance. In the settlement of the account,
the guardian, other than a parent, shall be allowed the
amount of his reasonable expenses incurred in the execution
of his trust and also such compensation for his services as
the court deems just, not exceeding fifteen per centum
(15%) of the net income of the ward (Sec. 8, Rule 96, ROC).
97
377

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 RULE 97
TERMINATION OF GUARDIANSHIP
SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
380
I. Petition that competency of ward be adand
proceedings thereupon.-—A person who has
declared incompetent for any reason, or his
guardrelative, or friend, may petition the court to
have his competency judicially determined. The
petition verified by oath, and shall state that such
person competent. Upon receiving the petition, the
court fix a time for hearing the questions raised
thereby, cause reasonable notice thereof to be given
to the of the person, so declared incompetent, and
to ward. On the trial, the guardian or relatives of the
and, in the discretion of the court, any other person,
contest the right to the relief demanded, and
witmay be called and examined by the parties or by
on its own motion. If it be found that the person is
longer incompetent, his competency shall be
adjudged guardianship shall cease.
Sec. 2. When guardian removed or allowed to
reNew appointment.—When a guardian becomes
inor otheMise incapable of discharging his trust or
therefor, or has wasted or mismanaged the or failed
for thirty (30) days after it is due to render account or
make a return, the court may, upon reasonnotice to
the guardian, remove him, and compel him surrender
the estate of the ward to the person found to lawfully
entitled thereto. A guardian may resign when it
proper to allow the same; and upon his
resignaremoval the court may appoint another in his
place.
Sec.
judged,
been ian,
present

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 RULE
shall be is
then shall
and
guardian
the ward,
may nesses
the court
no and the

sign; sane
unsuitable
estate, an
a
ble to be
appears
ti0n or

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
382

[Sec. 3. Other
marriage or voluntarytermination of guardianship—The
emancipation of a minor ward termi_ of the
nates the guardianship
person of the Ward, and to administer his
shall enable the minor
he were of age, but property as though he cannot borrow money
or alienate or without the consent of his
encumber real property
mother, or guardian.father or He can sue and be sued in court only
with the assistance of his father, mother or guardian, The may be
discharged by the court the application of the
guardian of any person
ward or othguardianship is no longer
when it appears, upon
erwise, that the necessary—03-02-05-SC insofar as it applies
Amended by AM to a
minor ward.]
Sec. 4. Record to be kept by the justice of the peace Court)
(now Municipal Trial or municipal judge.—When a (now Municipal
justice of the peace Trial Court) or municicognizance of the
pal court takes ance of
proceedings in pursuof these rules, the record
the provisions
proceedings shall be
of the kept as in the Court of First Instance
(now Regional Trial Court).
of judgment.—Final orders or judgshall be
Sec. 5. Service
served upon the civil regisor city where the
ments under this rule
incompetent perhis property or part thereof is
trar of the
situ-
municipality son
resides or where FULE97

ated.

RULE 97. TERMINATION OF

GUARDIANSHIP

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 383
sECT10N 1 RULE 97. PETITION THAT COMPETENCY
OF WARD BE ADJUDGED AND PROCEEDINGS
THEREUPON

Who may file the petition

The following persons may petition the court for the
judicial determination of the present competency of a
person who has been declared incompetent for any
reason:
(1) the person himself who has been declared
incompetent for any reason;
(2) his guardian;
(3) his relative; or
(4) his friend (Sec. 1, Rule 97, ROC).
Form, hearing and trial of the petition
The petition shall be verified by oath and shall state
that such person is then competent. Upon receiving the
petition, the court shall fix a time for hearing the questions
raised therein and cause reasonable notice thereof to be
given to the guardian of the person so declared
incompetent and to the ward.
During the trial, the guardian or relatives of the ward
and, in the discretion of the court, any other person may
contest the right to the relief demanded and witnesses
may be called and examined by the parties or by the court
on its own motion.
If it be found that the person is no longer
incompetent, his competency shall be adjudged and the
guardianship shall cease (Sec. 1, Rule 97, ROC).
EXPOSITION

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
384
Grounds for termination
Guardianship shall terminate upon the occurrence of
any of the following circumstances:
(a) When the competency of the ward has been
judicially determined;
(b) When guardianship is no longer necessary;
(c) When the guardian dies; or (d) When the ward dies.

Notice not intended as a personal

service of process to confer court
jurisdiction over the ward
The notification of the ward required in Section 1, Rule
97 of the Rules of Court is not intended as a personal service
of process in the sense necessary to give the court
jurisdiction over the ward. It is sufficient that the notice was
given.
The court in which the guardianship was pending
already had jurisdiction of the cause and the parties and
notification to the ward is required merely as an assurance
that the individual chiefly concerned shall have cognizance
of what is being done (Vda. de Inchausti v. Soler, GR
15119, Jan. 19, 1920, 40 Phil. 682).

Order removing guardian appealable

An order removing a guardian and appointing another
in his stead is appealable (O/atte v. Enriquez, GR L16098,
Oct. 31, 1960, 109 Phil. 1137).

SECTION 2 RULE 97. WHEN GUARDIAN

REMOVED
OR ALLOWED To RESIGN' NEW APPOINTMENT

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 385
a guardian may be removed
and compelled to surrender the
estate of the ward to his successor
The court may, upon reasonable notice to the guardian,
remove him and compel him to surrender the estate of the
ward to the person found to be lawfully entitled thereto in
any of the following instances:

(I) when a guardian becomes insane;

(2) when he is otherwise incapable of discharging
his trust or is unsuitable therefor;
(3) when he has wasted or mismanaged the estate;
or
(4) when he failed to render an account or make a
return for thirty (30) days after it is due (Sec, 2,
Rule 97, ROC).

When a guardian may be resign

A guardian may resign when it appears proper to
allow the same and upon his resignation or removal, the
court may appoint another in his place (Sec. 2, Rule 97,
ROC).

Conflict of interest sufficient ground

for removal of guardian
Conflict of interest (Ribaya v. Ribaya, GR L-48895,
July 16, 1943, 74 Phil. 254) has been held as a sufficient
ground for the removal of a guardian, premised on the
logic that antagonistic interests would render a guardian
Unsuitable for the trust. To the extent that a court uses
its discretion in appraising whether a person is

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
386
unsuitable or incapable of discharging his trust, that
much it can be said that removal is discretionary.
EXPOSITION

But the discretion must be exercised within the law

and when the latter has laid down the grounds for the
moval of a guardian, the court's discretion is limited to
inquiring as to the existence of any of those grounds
(Vda De Bengson v. PNB, GR L-17066, Dec. 28, 1961, 3
SCRÅ
751)

SECTION 3 RULE 97. OTHER TERMINATION OF

GUARDIANSHIP
Rule amended by AM 03-02-05-SC as
applied to minor ward
Section 3, Rule 97 of the Rules of Court is effectively
amended by AM 03-02-05-SC insofar as it applies to a
minor ward.

SECTION 4 RULE 97. RECORD TO BE KEPT BY THE

JUSTICE OF THE PEACE (NOW MUNICIPAL TRIAL
COURT) OR MUNICIPAL JUDGE

Record of the proceedings where kept

When a Municipal Trial Court (MTC) takes cognizance
of the proceedings in pursuance of the provisions of these
rules, the record of the proceedings shall be kept as in the
Regional Trial court (RTC) (Sec. 4, Rule 97, ROC). SECTION 5
RULE 97. SERVICE OF JUDGMENT

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 387
Service of final orders orjudgments upon
the local civil registrar
The office of the local civil registrar of the municipality or
city where the incompetent person resides or where his
property or part thereof is situated shall be served copies of
final orders or judgments under Rule 97 (Sec. 5, Rule 97, ROC).

M 030205.SC
MINORS
Rule shall
person or
AM 03-02-05-SC [MAY 01,
2003]
RULE ON GUARDIANSHIP OF exercise legal
of their
section 1. Applicability of the Rule.— uneof a
This apply to petitions for guardianship court
over the property, or both, of a minor. suppletory
The father and the mother shall jointly to Order No.
guardianship over the person and property
mancipated common child without the
of
necessity appointment. In such case, this
guardrelative
Rule shall be the provisions of the Family
or other
Code (Executive 209, as amended) on himself if
guardianship. fourFamily
Court the
Sec. 2. Who may petition for
person may
appointment ian.—On grounds authorized also and
by law, any person on behalf of a minor, Developcase
or of
the minor teen years of age or over, may an in-
petition the for the appointment of a
general guardian over or property, or
both, of such minor. The petition be filed petition for
by the Secretary of Social Welfare ment or both, of a the
province or
resides in a with
the Family or
any part

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grounds for the
 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
388
and by the Secretary of Health in the sane
minor who needs to be hospitalized.
Sec. 3. Where to file petition.—A
guardianship over the person or property,
minor may be filed in the Family Court of city
where the minor actually resides. If he
foreign country, the petition shall be filed
both,Court of the province or city where his
property thereof is situated.
Sec. 4, Grounds of petition.—The a ointment of a
uardian over the erson or ro ert , or
of a minor are the following.
(a) death, continued absence, or incapacity of his parents;
(b) suspension, deprivation or termination of parental
authority;
(c) remarriage of his surviving parent, if the latter Is
found unsuitable to exercise parental authority; or (d)
when the best interests of the minor so require.

Sec. 5. Qualifications of guardians.—ln appointing

guardian, the court shall consider the guardian's:
(i) moral character;
(ii) physical, mental and psychological condition;
(iii)
son or a Financial status;
guardian
(iv) relationship of trust with the minor;
observin
(v) availability to exercise the powers and duties of a
g erence:
guardian for the full period of the guardianship;
(vi) lack of conflict of interest with the minor; and (vii)
ability to manage the property of the minor.

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 389
Sec. 6. Who may be appointed guardian of the peror
property, or both, of a minor.—ln default of parents
court-appointed guardian, the court may appoint a of the
person or property, or both, of a minor, as far as
practicable, the following order of pref-

(a) the surviving grandparent and In case several

grandparents survive, the court shall select any of
them taking Into account all relevant considerations;

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 the oldest brother or sister of the minor over
tiventy-one years of age, unless unfit or
disqualified; SPECIAL PROCEEDINGS: AN EXHAUSTIVE
390
(c)
the actual custodian of the minor over twenty-one
years of age, unless unfit or disqualified; and
(d) any other person, who in the sound discretion of
the court, would serve the best interests of the
minor.

7. Contents of petition.—A petition for the

apof a general guardian must allege the
following:
The jurisdictional facts;
The name, age and residence of the
prospective ward;
The ground rendering the appointment
necessary or convenient;
The death of the parents of the minor or the
termination, deprivation or suspension of their
parental authority;
The remarriage of the minor's surviving parent;
The names, ages, and residences of relatives
within the 4th civil degree of the minor, and of
persons having him in their care and custody;
The probable value, character and location of the
property of the minor; and
(viii)The name, age and residence of the person for
whom letters of guardianship are prayed.
petition shall be verified and accompanied by a
tion æainst forum sho in . However, no defect in

Sec.

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 391
0)

(iii)

(v) (vi)

(vii)

The Certifica

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION
386

the petition or verification shall render void the

letters of guardianship.
Sec. 8. Time and notice of hearing.—When
tion for the appointment of a general guardian is
court shall fix a time and place for its hearing,
cause reasonable notice to be given to the
persons tioned in the petition, including the
minor if he is years of age or over, and may
direct other general cial notice to be given.
Sec. 9. Case study report—The court shall social
worker to conduct a case study of the minor the
prospective guardians and submit his report
ommendation to the court for its guidance before
scheduled hearing. The social worker may intervene
behalf of the minor if he finds that the petition for
anship should be denied.
Sec. 10. Opposition to petition.—Any person
may contest the petition by filing a written tion
based on such grounds as the majority of the the
unsuitability of the person for whom letters are
and pray that the petition be denied, or that
guardianship issue to himself, or to any suitable
named in the opposition.

Sec. 11. Hearing and order for letters to the

hearing of the petition, it must be shown that
quirement of notice has been complied with. The tive
ward shall be presented to the court. The court hear
the evidence of the parties in support of their tive
allegations. If warranted, the court shall suitable
guardian of the person or property, or both, minor.

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 393
issuance of

a
petifiled,
the and
shall
menfour
teen or
spe-

order a
and all
and
recthe
on
guardi-

intereste
d
opposim
inor or
prayed,
letters of
person

issue.—At
the
reprospe
cshall
respecap
point a of
the

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION
At the discretion of the court, thehearing on
anship may be closed to the public guardithe records of
and case shall not be released the approval.
without its
of the
Sec. 12. When and how aproperty notice.—
guardian for non-resident minor isWhen the but has
appointed; minor resides outside theproperty in such
Philippines the Philippines, anyminor, or any or
relative or friend of one interested inotherwise,
appointment of a
his property, in expectancy may
petition the Family Court for the
guardian over the property. shall be given to
the as the court
Notice of hearing of the petition may with the
minor by publication or any other presence
means deem proper. The court may
dispense of the non-resident minor. that such
nonnecessary or
If after hearing the court is convenproperty.
satisfied resident is a minor and a
guardian is ient, it may appoint executory
a judgment
guardian over his or or order shall be of
the municipality or
Sec. 13. Service of final and order.
Register of Deeds of
—The final and executory judgment thereof is situated
served upon the Local Civil Registrar
corresponding title, and
city where the minor resides and fifteen
the days from
the place where his property or part
shall annotate the same in the report
to the court his compliance within amount; conditions.—
receipt of the order. of his trust, or letters
guardian may be reas
Seca 14. Bond of guardian;
the court shall de-

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 395
Before he enters upon the execution Of
guardianship issue, an appointed quired to post a
bond in such sum termine and conditioned as
follows:
388

(a) To make and return to the court, within

months after the issuance of his letters of three
anship, a true and complete Inventory of allguardi_
property, real and personal, of his ward shallthe
come to his possession or knowledge thewhich or
possession or knowledge of any other in histo person
behalf;
to to
(b) To faithfully execute the duties of his trust,
manage and dispose of the propertyand to
according this rule for the best interests of
the ward, provide for his proper care,
custody and tion;
(c) To render a true and just account of all the
erty of the ward in his hands, and of all
proceeds or interest derived therefrom, and
of the agement and disposition of the same,
at the designated by this rule and such other
times the court directs; and at the expiration
of his to settle his accounts with the court and
and pay over all the property, effects, and
remaining in his hands, or due from him on
settlement, to the person lawfully entitled and
(d) To perform all orders of the court and such
duties as may be required by law.

Sec. 15. Where to file the bond; action thereon.—

The bond posted by a guardian shall be filed in the
Court and, In case of breach of any of its conditions,
guardian may be prosecuted in the same proceeding
the benefit of the ward or of any other person
legally ested in the property.

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SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION
educaprop
-

man.
time as
trust,
deliver
monies
such
thereto;

other

Family
the for
inter03
0205$C

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 397
whenever necessary, the court may require the
discharge from
guardian to post a new bond and may
furdue notice to
ther liability the sureties on the old therefrom to
bond after interested persons, if no
injury may result those interested in the
of
property.
property or the
Sec. 16. Bond of parents as guardiansannual the
ofminor.—lf the market value of theparent conas
property Income of the child exceedsthe court per
P50,000.00, cerned shall furnish a bond Incentum of to
such amount may determine, but in noguarantee for
case less than ten the value of suchgeneral
property or annual income, the
performance of the obligations prescribed bond shall be
guardians. the child
A verified petition for approval of therecountry, in
flied in the Family Court of the placethe or any
where sides or, if the child resides in apart
foreign Family Court of the place where
the property thereof is situated. summary
special
The petition shall be docketed as a regarding the
proceeding In which all incidents and guardian
issues performance of the obligations of a shall
general be heard and resolved.

Sec. 17. Genera/ duties of guardian.— guardia

A shall have the care and custody of then of his ward
person and the management of hisonly the
property, or agement of his property. Themanproperty
guardian of the nnresident minor shallof a of all his

duties:
out of the
perthe real ro -
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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION
have the management property within the
Philippines.

A guardian shall perform the following

erty of the
wise, out (i) To pay the just debts of the ward
obtaining sonal ro ert and the income of
390
(ii) To settle
sue for, the
approval ward, If the same is sufficient; other. of
and give fair the real property of the ward upon an
and and to order for its sale or encumbrance;
actions and
all accounts of his ward, and demand
person is
receive all debts due him, or may, with of the
(iii) To manage court, compound for the same discharges to
without the debtor on receiving a just dividend of the
thereon, property and effects; appear for and
comfortable
represent the ward in all special
ward; and proceedings, unless another appointed for
cient for
that purpose;
real or by
the court the property of the ward frugally and
waste, and apply the income and profits
(iv) To consent
insofar as may be necessary, to the and
erty owned
suitable maintenance of the if such income
others upon
hearing, and profits be insuffithat purpose, to sell or
careful encumber the personal property, upon being
priety authorized to do so;
of
the to a partition of real or personal propby the
(v) To submit ward jointly or in common with authority
property of granted by the court after notice to relatives
appointmen of the ward, and a investigation as to the
t, tion of necessity and proproposed action;
which tion
of an
(vi) To report
not
included or
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succeed
 399
to the court a verified inventory of the his
ward within three months after his and
annually thereafter, the rendimay be
required upon the applicainterested
person;
to the court any property
of the ward in the an
inventory which isaccounthis
discovered, ed to, or acappointor as
often as
uired b the ward within
A M 030205-SC
court.—The
court
three months after such discovery,
succession, or acquisition; and
more
(vii) To render to the court for its approval
commisproperty
ing of the property one year from of the
ment, and every year thereafter may subsequent
be required. inven-
Sec. 18. Power and duty of the
guardian,
may: other expenses
incurred allow
(a) Request the assistance of onepayment
or of the
sioners in the appraisal of court
the may centum
ward reported in the initial and
of the otherwise,
tories; in such to be a
reasonand
(b) Authorize reimbursement to the
than a parent, of reasonable in ward, or of
the execution of his trust,any
andinterest in any
person
compensation for his services as
susconcealed,
deem just, not exceeding ten per or
net income of the ward, ifdisinterest,
any; or a
writward or his
propconcerning any
would secure
embezzlement, con-

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propeHy.— is
 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION
amount as the court determines
able compensation for his services;
(c) Upon complaint of the guardian or
person having actual or prospective
the property of the ward, require
pected of having
erty
wise, embezzled, posed of any
obtainin money, goods or ten
g instrument belonging to
the erty to appear for
(ii) To sue examination thereof and
the and fair issue such orders as the
and and to
property against such
actions
person (iii)
cealment or conveyance.
To without Sec. 19. Petition to sell or encumber
thereon, When the ert under uardianshi in-
comfortable
390
ward;
cient
real orof the ward, If the same is sufficient; other. out of
by the the real property of the ward upon an order for its
sale or encumbrance'
(iv) To erty
others settle all accounts of his ward, and demand for,
hearing,receive all debts due him, or may, with approval
careful of the court, compound for the same give
priety discharges to the debtor on receiving a just
(v) To dividend of the property and effects; appear for
submit and represent the ward in all and special
ropertyproceedings, unless another is appointed for
appointthat purpose;
ment, manage the property of the ward frugally and
tion of waste, and apply the income and profits
tion of

(vi) To
report
not or
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 401
insofar as may be necessary, to the and
suitable maintenance of the and if such
income and profits be insuffifor that
purpose, to sell or encumber the personal
property, upon being authorized court to do
so;
consent to a partition of real or personal
propowned by the ward jointly or in common
with upon authority granted by the court after
notice to relatives of the ward, and a
investigation as to the necessity and proof the
proposed action;

to the court a verified inventory of the of

his ward within three months after his and
annually thereafter, the rendiwhich may be
required upon the applicaan interested
person;
to the court any property of the ward included
in the inventory which is discovered, succeeded
to, or ac uired b the ward within

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
402
A 391

three months after such discovery,

approval an
succession, or
accountfrom his
appointthereafter or as
(vii) To render to the court for itsoften
ing as
of the property one year ment,
and every year may be required.
the court.—The court
Sec. Power and duty of may:

(a) Request the assistance of

one or more
sioners in the appraisal of
commisthe property
ward reported in the initial
of the and
tories; subsequent inven-
(b) Authorize reimbursement
to than a parent, of the guardian, other
reasonable in the
expenses incurred and
execution of his trust, allow payment of as
compensation for his the court may ten per
services deem just, not centum of the any;
exceeding net income of otherwise, in such to
be a reasonservices;
the ward, if amount as the
and
court determines able
compensation for his or ward, or of
any prospective
(c) Upon complaint of the interest in require any
guardian person having person susconcealed,
actual or the property orof disor interest, or a
writthe ward or his
the ward, pected of having
embezzled, posed of any propconcerning any as
money, goods would
ten secure
embezzlement, con-
instrument belonging to
erty to appear for
examination thereof andencumber property.—
der uardianshi is

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 0302-05.SC
issue such orders the
property against such
cealment or conveyance.
Sec. 19. Petition to sell or

Whenthe income of a ro ert un in-

son allowed to file a petition for guardianship may termi,

nate the guardianship on the ground that the ward has
come of age or has died. The guardian shall notify the
court of such fact within ten days of its occurrence.
Sec. 26. Setvice of final and executory judgment or
order.—The final and executory judgment or order shall
be served upon the Local Civil Registrar of the
municipality or city where the minor resides and the
Register of Deeds of the province or city where his
property or any part thereof is situated. Both the Local
Civil Registrar and' the Register of Deeds shall enter the
final and executory judgment or order in the appropriate
books in their offices.
Sec. 27. Effect of the rule.—This Rule amends Rules
92 to 97 inclusive of the Rules of Court on guardianship
of minors. Guardianship of incompetents who are not
minors shall continue to be under the jurisdiction of the
regular courts and governed by the Rules of Court.

Sec. 28. Effectivity.—This Rule shall take effect on

May 1, 2003 following its publication in a newspaper of
eneral circulation not later than A ril 15, 2003.

AM 03-02-05-SC [MAY 01, 2003]

RULE ON GUARDIANSHIP OF MINORS
SECTION 1, AM 03-02-05-SC. APPLICABILITY OF THE
RULE

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
404
Joint legal guardianship by
the father and mother over
their unemancipated child
The New Rules on Guardianship of Minors, adopted
in the May 1, 2003 Resolution of the Court in AM 03-
0205-SC, provide, inter alia:

395

"Section 1, Applicability of the Rule.—This

Rule shall apply to petitions for guardianship
person over the or property, or both, of a minor,
"The father and the mother shall jointly
exercise legal guardianship over the person
and property of their unemancipated common
child Without the necessity of a court
shall appointment. In such case, this Rule be
Code suppletory to the provisions of the Family (EO
bales 209, as amended) on guardianship" (Ca-
691). v. CA, GR 162421, Aug. 31, 2007, 531 SCRA

on guardianship over minors following

The
rules shall apply on guardianship oh

(1) The father and mother shall jointly

exercise legal guardianship over the
person and property of their
unemancipated common child without
the necessity of a court appointment.

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 0302-05.SC
The Rule shall be suppletory to the provisions of
the Family Code (Executive Order No. 209, as
amended) on guardianship (Sec. 1, AM 03-02-05-
SC); and
(2) On grounds authorized by law, any relative or
other person on behalf of a minor or the minor
himself, if fourteen (14) years of age or over, may
petition the Family Court for the appointment of
a general guardian over the person or property
or both of such minor. The petition may also be
filed by the Secretary of DSWD and of the DOH in
the case of an insane minor who needs to be
hospitalized (Sec. 2, AM

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
406

SECTION 2 AM 03-02-05-SC. WHO MAY PETITION

FOR APPOINTMENT OF GUARDIAN

Persons who may petition for appointment of a

general guardian
The petition for the appointment of a general gUardian over the
person or property or both of a minor may be filed before the Family
Court by any of the following persons:
(a) any relative or other person on behalf of a minor;
(b) the minor himself if fourteen (14) years of age or over;
(c) the Secretary of Social Welfare and Development; or
(d) the Secretary of Social Welfare and Development and
the Secretary of Health jointly in the case of an insane
minor who needs to be hospitalized (Sec. 2, AM 03-02-
05-SC).

SECTION 3 AM 03-02-05-SC. WHERE TO FILE PETITION

Venue

Guardianship of a person or estate of a minor child may be

instituted in the Family Court (RTC) of the province where he
resides or, in case of a non-resident minor, where his property is
located (Sec. 3, AM 03-02-05-SC).
SECTION 4 AM 03-02-05-SC. GROUNDS OF PETITION

Grounds for the petition

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 030205-SC
407
The petition may be anchored on any of the following grounds:

fl.

(1) Death, continued absence or incapacity of his

(2) Suspension, deprivation or termination of paren-

(3) Remarriage of his surviving parent, if the latter is found

unsuitable to exercise parental authority; or
(4) When the best interest of the minor so requires (Sec, 4,
AM 03-02-05-SC).

SECTION 5 AM 03-02-05-SC. UALIFICATIONS OF

GUARDIANS

Qualities to be considered by the court in

naming a guardian
In appointing a guardian, the court shall take into account
the prospective guardian's:
(a) moral character;
(b) physical, mental and psychological condition;
(c) Financial status;
(d) relationship of trust with the minor;
(e) availability to exercise the powers and duties of a
guardian for the full period of the guardianship;

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
408
(f) lack of conflict of interest with the minor; and
(g) ability to manage the property of the minor (Sec.
5, AM 03-02-05-SC)
SECTION 6 AM 03-02-05-SC. WHO MAY BE APPOINTED
GUARDIAN OF THE PERSON OR PROPERTY, OR BOTH, OF A
MINOR

Order of preference in the appointment of

guardian or the person and/or property of
minor

The following order of preference, so far as practicable,

shall be observed by the court in appointing a guard. ian of the
person or property or both of a minor:
(1) The surviving grandparent and, in
case several grandparents survive,
the court shall select any of them
taking into account all relevant
erations;
(2) The oldest brother twenty qualified;
(3) The actual custodian of the minor
one (21) years of age, unless unfit
and
(4) Any other the court, would minor
(Sec. 6,
SECTION 7 AM 03-02-05-SC. CONTENTS OF PETI. TION

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 030205-SC
409
Specific averments required in the verified
petition
A petition for the appointment of a general guardian must
contain the following allegations:

(a) The jurisdictional facts;

(b) The name, age and residence of the prospective
ward;

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
410
03-02&-SC

(c) The ground rendering the appointment necessary or

convenient;
(d) The death of the parents of the minor or the termination,
deprivation or suspension of their parental authority;
The remarriage of the minor's surviving parent;
(f) The names, ages and residences of relatives within the
fourth (4th) civil degree of the minor and of persons
having him in their care and custody;
(g) The probable value, character and location of the
property of the minor; and
(h) The name, age and residence of the person for whom
letters of guardianship are prayed.
The petition shall be verified and accompanied by a
certification against forum shopping. However, no defect in the
petition or verification shall render void the issuance of letters of
guardianship (Sec. 7, AM 03-02-05-SC).

SECTION 8 AM 03-02-05-SC. TIME AND NOTICE OF

HEARING

Court to fix time and place of hearing

When a petition for the appointment of a general guardian is
filed, the court:
(1) shall fix a time and place for its hearing; and
(2) shall cause reasonable notice to be given to the persons
mentioned in the petition, including the minor if he is
fourteen (14) years of age or over; and
(3) may direct other general or special notices to be given
(Sec. 8, AM 03-02-05-sC).
EXPOSITION

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 411
Service of notice to minors 14 years o/d and above
jurisdictional
Service of the notice upon the minor if above fourteen (14)
years of age is jurisdictional. Without such notice, the court acquires
no jurisdiction to appoint a guardian (Nety
v. Lorenzo, GR L-23096, Apr. 27, 1972, 44 SCRA 431). SECTION 9
AM 03-02-05-SC. CASE STUDY REPORT
Social worker to conduct and submit case
study report on the minor and prospective
guardians
The court shall order a social worker to:
(a) conduct a case study of the minor and all the
prospective guardians; and
(b) submit his report and recommendation to the court for
its guidance at least three (3) days before the scheduled
hearing.

The social worker may intervene on behalf of the minor if

he finds that the petition for guardianship should be denied
(Sec. 9, AM 03-02-05-SC).

SECTION 10, AM 03-02-05-SC. OPPOSITION TO PETITION

Grounds for contesting the petition

Any interested person may contest the petition by filing a written
opposition based on such grounds as:
(1) the majority of the minor; or
(2) the unsuitability of the person for whom letters are prayed
(Sec. 10, AM 03-02-05-SC).
A.M. 03-0205-SC

Reliefs that may be sought

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
412
Such interested person contesting the petition may pray
therein:
(a) that the petition be denied; or
(b) that letters of guardianship issue to himself or to any
suitable person named in the opposition (Sec. 10, AM
03-02-05-SC).

sECTION 11 AM 03-02-05-SC. HEARING AND ORDER FOR

LETTERS TO ISSUE

Hearing on guardianship; appointment of

suitable guardian
At the hearing of the petition, it must be shown that the
requirement of notice has been complied with. The prospective
ward shall be presented to the court which shall then hear the
evidence of the parties in support of their respective allegations.
If warranted, the court shall appoint a suitable guardian of the
person or property of the minor or both.
At the discretion of the court, the hearing on guardianship
may be closed to the public and the records of the case shall not
be released without its approval (Sec. 11, AM 03-02-05-SC).

SECTION 12 AM 03-02-05-SC. WHEN AND HOW A GUARDIAN

OF THE PROPERTY FOR NON-RESIDENT
MINOR IS APPOINTED; NOTICE
Who may petition; notice to non-resident minor
by publication
EXPOSITION

A petition for the appointment of a guardian over the property of

a minor who resides outside the Philippines but has property in the
Philippines may be filed before the Fannily court (RTC) by:
(1) any relative or friend of such minor; or
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 413
(2) anyone interested in his property, in expectancy or
othetwise.
Notice of hearing of the petition shall be given to the minor by
publication or any other means as the court may deem proper. The
court may dispense with the presence of the non-resident minor.
If, after hearing, the court is satisfied that such nonresident is
a minor and a guardian is necessary or convenient, it may appoint
a guardian over his property (Sec. 12, AM 03-02-05-SC).

SECTION 13 AM 03-02-05-SC. SERVICE OF FINAL AND EXECUTORY

JUDGMENT OR ORDER

Civil Registrar and Register of Deeds to be

served with final and executory judgment
or order
The Local Civil Registrar of the municipality or city where the
minor resides and the Register of Deeds of the place where his
property or part thereof is situated shall be served copies of the
final and executory judgment or order of the court.
The Register of Deeds shall annotate the judgment or order
in the corresponding title and report to the court his compliance
within fifteen (15) days from receipt of the der (Sec. 13, AM
03-02-05-SC).

A.M. 030205-SC

sECTION 14 AM 03-02-05-SC. BOND OF GUARDIAN'

AMOUNT: CONDITIONS

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
414
Before the appointed guardian shall enter upon the
execution of his trust or before letters of guardianship shall issue,
the court may require him to post a bond in such sum as the court
shall determine and conditioned as follows:
(a) To make and return to the court, within three (3)
months after the issuance of his letters of guardianship,
a true and complete inventory of all the property, real
and personal, of his ward which shall come to his
possession or knowledge or to the possession or
knowledge of any other person in his behalf;
(b) To faithfully execute the duties of his trust, to manage
and dispose of the property according to this rule for
the best interests of the ward and to provide for his
proper care, custody and education;
(c) To render a true and just account of all the property of
the ward in his hands and of all proceeds or interest
derived therefrom and of the management and
disposition of the same at the time designated by this
rule and such other times as the court directs and, at the
expiration of his trust, to settle his accounts with the
court and deliver and pay over all the property, effects
and monies remaining in his hands or due from him on
such settlement to the person lawfully entitled thereto;
and
(d) To perform all orders of the court and such other
duties as may be required by law (Sec. 14, AM 03-02-05-sC).

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 415

404

SECTION 15 AM 03-02-05-SC. WHERE To FILE BOND•

ACTION THEREON

Bond to be filed in the Family Coutt; new

bond may be required
The bond posted by a guardian shall be filed in the
Family Coud (RTC) and, in case of breach of any of its
conditions, the guardian may be prosecuted in the same
proceeding for the benefit of the ward or of any other person
legally interested in the property.
Whenever necessary, the court may require the guardian
to post a new bond and may discharge the sureties on the old
bond from further liability after due notice to interested
persons if no injury to those interested in the property may
result therefrom (Sec. 15, AM 03-02-05-SC).
SECTION 16 AM 03-02-05-SC. BOND OF PARENTS AS
GUARDIANS OF PROPERTY OF MINOR
When bond for genera/ guardian to be
furnished and filed
In case the market value of the property or the annual
income of the child exceeds fifty thousand pesos the
parent concerned shall furnish a bond in such amount as the
court may determine but in no case shall such bond which will
guarantee the performance Of the obligations prescribed for
general guardians be less than ten percent (10%) of the value
of the property or the

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
A verified petition for the approval of the bond shall be filed
in the Family Court (RTC) of the place where the child resides
or, if the child resides in a foreign country, in the
03N5-sc

Family Court (RCT) of the place where tho property or any

The petition shall be docketed as a summary special

proceeding in which all incidents and issues regarding the
performance of the obligations of a general guardian shall be
heard and resolved (sec. 16, AM 03-02-05-SC).

sECTION 17 AM 03-02-05-SC. GENERAL DUTIES OF

General and specific responsibilities and

duties of a guardian

A guardian shall be responsible for:

(I) the care and custody of the person of his ward and the
management of his property; or
(2) only the management of his property.
The guardian of the property of a nonresident minor shall
have the management of all his property within the Philippines.
A guardian shall perform the following duties:
(a) To pay the just debts of the ward out of the personal
property and the income of the real property of the ward, if
the same is sufficient; otherwise, debts shall be paid out of
the real property of the ward upon obtaining an order from
the court for its sale or encumbrance;

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 417
(b) To settle all accounts of his ward and demand, sue for,
receive all debts due him or, with the ap proval of the court,
compound for the same and give discharges to the debtor
upon receiving a fair and just dividend of the property and
effects and to appear for and represent the ward in all
406 EXPOSITION

actions and special proceedings unless another person is

appointed for that purpose;
(c) To manage the property of the ward frugally and without
waste and apply the income and profits thereon, insofar as
may be necessary, to the comfortable and suitable
maintenance of the ward and, if such income and profits be
insufficient for that purpose, to sell or encumber the real or
personal property upon being authorized by the court to do
so;
(d) To consent to a partition of real or personal property
owned by the ward jointly or in common with others upon
authority granted by the court after:
(a) hearing;
(b) notice to relatives of the ward; and
(c) a careful investigation as to the necessity and propriety
of the proposed action;
(e) To submit to the court a verified inventory of the property of
his ward within three (3) months after his appointment and
annually thereafter the rendition of which may be required
upon the application of an interested person;
(f) To report to the court any property of the ward not included in
the inventory which is discovered or succeeded to or acquired
by the ward within three (3) months after such discovery,
succession or acquisition; and

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
(g) To render to the court for its approval an accounting of the
property one (1) year from his appointment and every year
thereafter or as often as may be required (Sec. 17, AM 03-02-
05-SC).
AM 030205-SC

sECTION 18 AM 03-02-05-SC. POWER AND DUTY OF THE COURT

Tasks and responsibilities of the court

The court may:
(1) request the assistance of one or more commissioners in
the appraisal of the property of the ward reported in the
initial and subsequent inventories;
(2) authorize reimbursement to the guardian, other than a
parent, of reasonable expenses incurred in the execution
of his trust and allow the payment of compensation for his
services as the court may deem just in the amount not
exceeding ten percent (10%) of the net income of the
ward, if any; otherwise, in such amount as the court
determines to be a reasonable compensation for his
services; and
(3) upon complaint of the guardian or ward or of any person
having actual or prospective interest in the property of the
ward, require any person suspected of having embezzled,
concealed or disposed of any money, goods or interest or
a written instrument belonging to the ward or his prop
erty to appear for examination concerning any thereof and
issue such orders as would secure the property against

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 419
such embezzlement, concealment or conveyance (Sec. 18,
AM 03-02-05SC).

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 SPECIAL EXHAUSTIVE
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408

SECTION 19 AM 03-02-05-SC. PETITION To SELL OR

ENCUMBER PROPERTY
When guardian may filc petition to authorize sale or
encumbrancc of propeny of the ward
When the income of a property under guardianship is insufficient to
maintain and educate the ward or when it is for his benefit that his
personal or real property or any part thereof be sold, mortgaged or
otherwise encumbered and the proceeds invested in safe and productive
security or in the improvement or security of other real property, the
guardian may file a verified petition setting forth such facts and praying
that an order issue authorizing the sale or encumbrance of the property
(Sec. 19, AM 03-02-05-SC).

SECTION 20 AM 03-02-05-SC. ORDER TO SHOW CAUSE

If the sale or encumbrance is necessary or would be beneficial

to the ward, the court shall order his next of kin and all person/s
interested in the property to appear at a reasonable time and place
therein specified and show cause why the petition should not be
granted (Sec. 20, AM 03-02-05-SC).

SECTION 21, AM 03-02-05-SC. HEARING ON RETURN OF ORDER: COSTS

Court to hear and decide the petition

At the time and place designated in the order to show cause, the
court shall hear the allegations and evidence of the petitioner and next
of kin and other persons interested, together with their witnesses, and
grant or deny the petition as the best interests of the ward may require
(Sec. 21, AM 03-02-05-SC).

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 421
M. 0302-05-sc

SECTION 22 AM 03-02-05-SC. CONTENTS OF ORDER FOR SALE OR

ENCUMBRANCE AND ITS DURATION•

BOND

When coun shall authorize sale or encumbrance; bond

and period of authority
If, after full examination, it is necessary or would be
beneficial to the ward to sell or encumber the property or
some portion of it, the court shall order such sale or
encumbrance the proceeds of which shall be expended for
the maintenance or the education of the ward or invested as
the circumstances may require.
The order shall specify the grounds for the sale or
encumbrance and may direct that the property ordered sold
be disposed of at a public sale, subject to such conditions as
to the time and manner of payment and security where a
part of the payment is deferred.
The original bond of the guardian shall stand as security for
the proper appropriation of the proceeds of the sale or
encumbrance but the court may, if deemed expedient, require an
additional bond as a condition for the sale or encumbrance. The
authority to sell or encumber shall not extend beyond one (1)
year unless renewed by the court (Sec. 22, AM 03-02-05-SC).

SECTION 23 AM 03-02-05-SC. COURT MAY ORDER

INVESTMENT OF PROCEEDS AND DIRECT MANAGEMENT
OF PROPERTY

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION
The court may authorize and require the guardian to
invest the proceeds of sales or encumbrances and any other
money of his ward in his hands, in real or personal Pr0perty,
for the best interests of the ward and may make such other
orders for the management, investment and
410

disposition of the property and effects as circumstances may

warrant (Sec. 23, AM 03-02-05-SC).

SECTION 24 AM 03-02-05-SC. GROUNDS FOR RE.

MOVAL OR RESIGNA TION OF GUARDIAN
When guardian may be removed or permitted to
resign; accounting
The court may, upon reasonable notice to the guardian,
remove him as such and require him to surrender the property of
the ward to the person found to be lawfully entitled thereto if
such guardian:
(a) becomes insane or otherwise incapable of discharging his
trust or is found thereafter to be unsuitable; or
(b) has wasted or mismanaged the property of the ward; or
(c) has failed to render an account or make a return for
thirty (30) days after it is due.
The court may allow the guardian to resign for justifiable
causes. Upon the removal or resignation of the guardian, the
court shall appoint a new one.
No motion for removal or resignation shall be granted unless
the guardian has submitted the proper accounting of the property

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 423
of the ward and the court has approved the same (Sec. 24, AM
03-02-05-SC).

SECTION 25 AM 03-02-05-SC. GROUND FOR TERMINA TION OF

GUARDIANSHIP

Duty of guardian to notify the court of ward's

coming of age or death

The court may, motu proprio or upon verified motion of any

person allowed to file a petition for guardianship, terminate the
guardianship on the ground that the ward has come of age or has
died. The guardian shall notify the court of such fact within ten (10)
days of its occurrence (Sec. 25, AM 03-02-05-SC).

sECTlON 26 AM 03-02-05-SC. SERVICE OF FINAL AND EXECUTORY

JUDGMENT OR ORDER

Local Civil Registrar and' Register of Deeds to enter

court judgment in their books
The court shall serve copies of its final and executory judgment
or order on the Local Civil Registrar of the municipality or city
where the minor resides and the Register of Deeds of the province
or city where his property or any part thereof is situated.
The concerned Local Civil Registrar and' the Register of Deeds
shall enter said judgment or order in the appropriate books in
their offices (Sec. 26, AM 03-02-05-SC).

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424

RULE 98
TRUSTEES
Where trustee appointed.—A trustee neceseffect the
Sec. 1. provisions of a will or written be appointed by the Court of
First InRegional Trial Court) in which the will was will allowed
sary to carry into
instrument shall in the Philippines, otherwise First Instance (now Regional Trial
stance (now
Court) of which the property, or some portion by the trust is
allowed if it be situated.
a
by the Court of the
province inAppointment and powers of trustee under of former
thereof, affected trustee need not administer has omitted in his will to
appoint a trusand if such appointment is necesinto effect
Sec. 2. will;
the
Executor trust.—lf a
provisions of the will, the First Instance (now Regional
testator tee inTrial theCourt) to all persons interested, appoint a trushave
Philippines, sary the same
to rights, powers, and duties, estate shall vest, as if
carry proper Courthe had
of been aptestator. No person succeeding to a trust
may, after notice tee
as administrator of a former trustee shall be resuch trust.
who shall and in whom
the pointed by Appointment
the and powers of new trustee uninstrument.—
executor or quired to
When a trustee under a written resigns, dies, or is removed
accept
before trust are accomplished, and no adeis made in such
instrument for supplying proper Court of First Instance (now
Sec. 3. der
Remay, after due notice to all persons a new trustee to act
written instrument alone or •ointl
declines, thePULE 9B
objects of the
quate provision the
vacancy, the gional
Trial Court)
interested, a oint

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 others, as the case may be. Such now truotoc with the shall ha
be made and exercise tho same powerg, rightg, and duhe by the proper to al
had been originally appointed, and tho truot shall
Sec.vest in him in like manner as it had vegtod or have
abroadvested, in the trustee in whoso placo he ig and the —
When court may order such conveyance to by the former
persons
trustee or his representatives, or other remaining
ity from
trustees, as may be necessary or vest the trust
tion filed
Court) ofestate in the new trustee, either jointly with the
due others,
notice
the court 4. Proceedings where trustee appointed
or refusalland in the Philippines is held in trust for
clare resident here by a trustee who derives his
such authorwithout the Philippines, such trustee
whom shall, on petiin the Court of First Instance (now
the been Regional Trial province where the land is
situated, and after to all persons interested, be
ordered to apply to for appointment as trustee;
and upon his neglect to comply with such order,
the court shall detrust vacant, and shall appoint
a new trustee in trust estate shall vest jn like
manner as if he had originally appointed by
such court,
5. Trustee must file bond.—Before
entering on of his trust, a trustee shall file with
the clerk of having jurisdiction of the trust a
bond in the fixed by the judge of said court,
payable to the of the Philippines and sufficient
and available protection of any party in interest,
and a trustee to file such bond shall be
considered to have resigned the trust; but the
court may until furexempt a trustee under a will
from giving a bond testator has directed or
requested such exempmay so exempt any
trustee when all persons interested in the trust,
bein re-
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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
426
Sec. the duties the court amount Government for the neglects
declined or order when the ti0n, and beneficiall exemption. Such
exemption may be cancelled court at any time and the trustee
required to forth. bond.

6. Conditions included in bond.—The following shall be

who
deemed to be a part of the bond written therein or not:
That
ther the trustee will make and return to the court, at such time
quest the as it may order, a true inventory of all the real and personal
by the estate belonging to him as trustee, which at the time of the
with file a making of such inventory shall have come to his possession or
knowledge;
Sec.
conditionsThat he will manage and dispose of all such estate, and faithfully
whether discharge his trust in relation thereto, according to law and the
(a) will of the testator or the provisions of the instrument or order
under which he is appointed;
That he will render upon oath at least once a year until his trust
is fulfilled, unless he is excused therefrom in any year by the
court, a true account of the property in his hands and of the
management and disposition thereof, and will render such other
(b) accounts as the court may order; That at the expiration of his
trust he will settle his accounts in court and pay over and deliver
all the estate remaining in his hands, or due from him on such
settlement, to the person or persons entitled thereto.
when the trustee is appointed as a successor to a the court may
(c)
dispense with the making and an inventory, if one has already
been filed, and in the condition of the bond shall be deemed to
be

(d)

But prior
trustee, retur
n of such
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 427
98

altered

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 accordingly. SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
428
7. Appraisal; Compensation of trustee.—
Sec,When is required to be returned by a trustee, an
the and effects belonging to the trust shall be
appraised court may order one or more
inheritance tax apto assist in the appraisement.
The compensation trustee shall be fixed by the
court, if it be not deterthe instrument creating
the trust.
8. Removal or resignation of trustee.—
The Court of First Instance (now Regional Trial
Court) upon petition of the parties beneficially
interested due notice to the trustee and hearing,
remove a if such removal appears essential in
the interests petitioners. The court may also,
after due notice to interested, remove a trustee
who is insane or incapable of discharging his
trust or evidently therefor. A trustee, whether
appointed by the under a written instrument,
may resign his trust if to the court proper to
allow such resignation.

9. Proceedings for sale or encumbrance

of estate.—When the sale or encumbrance of
any real estate held in trust is necessary or
expedient, having jurisdiction of the trust may,
on petition due notice and hearing, order such
sale or ento be made, and the reinvestment and
applicathe proceeds thereof in such manner as
will best objects of the trust. The petition, notice,
hearing, sale or encumbrance, and record of
proceedings, conform as nearly as may be to the
provisions conthe sale or encumbrance by
guardians of the of minors or other wards.
inventory estate and the praisers of the mined in Sec. proper may, and

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 429
after trustee of the all persons otherwise unsuitable court or it appears

Sec. trust or personal the court and after cumbrance tion of

eff
ect the order of shall cerning ro ert

RULE 98. TRUSTEES

SECTION RULE 98. WHERE TRUSTEE APPOINTED

RTC to appoint a trustee

The Regional Trial Court in which the will was allowed, if it be
a will allowed in the Philippines, or the Regional Trial Court of the
province in which the property or some portion thereof affected
by the trust is situated shall appoint a trustee necessary to carry
into effect the provisions of a will or a written instrument (Sec. 1,
Rule 98, ROC).

Who is a trustee?
A trustee is a person appointed by the court to carry out the
provisions of a will, as provided in Rule 98.
Trust defined
A trust is generally understood as the legal relationship
between one person having an equitable ownership in property
and another person owning the legal title to such property. The
beneficiary of the trust is known as the cestui que trust (pl. cestui
que trustent).

SECTION 2, RULE 98. APPOINTMENT AND POWERS

OF TRUSTEES UNDER WILL. EXECUTOR OF FORMER TRUSTEE NEED
NOT ADMINISTER TRUST

Where testator omitted to appoint a trustee

in his will

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
430
If a testator has omitted in his will to appoint a trustee in the
Philippines, and if such appointment is necessary to carry into
effect the provisions of the will, the proper the
RYLE9$

Regional rial Court may, after notice to all persons inter

ested, appoint a trustee Who shall have the same rights, powers,
and duties, and in whom the estate shall vest, as if he had been
appointed by the testators No person succeeding to a trust as
executor or administrator of a former trustee shall be required to
accept such trust (Sec. 2, Rule 98, ROC).

sECTION 3 RULE 98. APPOINTMENT AND POWERS OF NEW TRUSTEE

UNDER WRITTEN INSTRUMENT

Where no provision is made in the

instrument to replace trustee; extent
of authority of a trustee

When a trustee under a written instrument declines,

resigns, dies, or is removed before the objects of the trust are
accomplished and no adequate provision is made in such
instrument for supplying the vacancy, the proper Regional
Trial Court may, after due notice to all persons interested,
appoint a new trustee to act alone or jointly with the others,
as the case may be.
Such new trustee shall have and exercise the same
powers, rights, and duties as if he had been originally
appointed and the trust estate shall vest in him in like
manner as it had vested or would have vested in the trustee
in whose place he is substituted.

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 431
The court may order such conveyance to be made by the
former trustee or his representatives or by the other
remaining trustees, as may be necessary or proper to vest
the trust estate in the new trustee, either alone or jointly
With the others (Sec. 3, Rule 98, ROC).

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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SECTION 4 RULE 98. PROCEEDINGs WHERE TEE APPOINTED

ABROAD

Where trustee of land in the Philippines was

authorized overseas
When land in the Philippines is held in trust for per. sons
resident here by a trustee who derives his authority from
without the Philippines, such trustee shall, on petition
filed in the Regional Trial Court of province where the
land is situated and after due notice to all persons
interested be ordered to apply to the court for
appointment as tee.
Should he neglect or refuse to comply with such
or. der, the court shall declare such trust vacant and
shall appoint a new trustee in whom the trust estate
shall vest in like manner as if he had been originally
appointed by such court (Sec. 4, Rule 98, ROC).

SECTION 5 RUE 98. TRUSTEE MUST FILE BOND

Trustee required to furnish bond; exemption

A trustee appointed by the court is required to furnish
a bond and the terms of the trust or a statute may provide
that a trustee so appointed shall be required to furnish a
bond in order to qualify him to administer the trust (54
Am. Jur. 425).

But the court may, until further order, exempt a trustee

under a will from giving a bond when the testator has
directed or requested such exemption or when all persons
beneficially interested in the trust, being of full age, request

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 433
the exemption which may be cancelled by the court at any time
with the trustee being required to forthwith file a bond (Sec. 5,
Rule 98, ROC).
FILE 98

should the trustee fail to furnish a bond as required

the court, he therefore fails to qualify as such. The trust
however, not defeated by such a failure to give bond.
SECTION 6 RULE 98. CONDITIONS INCLUDED IN BOND

conditions deemed written in the bond

The following conditions shall be deemed to be a part of
the bond, whether written therein or not:
(1) That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee which at the time of
the making of such inventory shall have come to
his possession or knowledge;
(2) That he will manage and dispose of all such
estate and faithfully discharge his trust in relation
thereto according to law and the will of the
testator or the provisions of the instrument or
order under which he is appointed;
(3) That he will render upon oath at least once a year
until his trust is fulfilled, unless he is excused
therefrom in any year by the court, a true account of
the property in his hands and of the management
and disposition thereof and will render such other
accounts as the court may order; and
(4) That at the expiration of his trust, he will settle
his accounts in court and pay over and deliver all

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
434
the estate remaining in his hands or due from
him on such settlement to the person or persons
entitled thereto.
But when the trustee is appointed as a successor to a
Prior trustee, the court may dispense with the making and
Exposi)lu

return of an inventory, if one has already been filed and such

case the condition of the bond shall be deemed to b n altered
accordingly (Sec. 6, Rule 98, ROC).

SECTION 7 RULE 98, APPRAISAL. COMPENSAT10& OF

TRUSTEE

Coutt to fix recompense of the

trustee if not provided in the trust
instrument
When an inventory is required to be returned by a
trustee, the estate and effects belonging to the trust shall
be appraised and the court may order one or more
inheri. tance tax appraisers to assist in the appraisement.
The compensation of the trustee shall be fixed by the
court ifit be not determined in the instrument creating
the trust (Sec. 7, Rule 98, ROC).

SECTION 8 RULE 98. REMOVAL OR RESIGNATION

OF TRUSTEE

Grounds for the removal and resignation of

a trustee

A trustee may be removed upon any of the following

grounds:

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 435
(a) A trustee may be removed upon petition to the
proper RTC of the parties beneficially
interested, after due notice to the trustee and
hearing, if it appears essential in the interests of
the petitioners;
(b) A trustee who is insane or othenvise incapable
of discharging his trust or evidently unsuitable
therefor may also, after due notice to all
persons interested, be removed by the court;
and
(c) A show trustee a want whose of acts
reasonable or omissions fidelity are will such
be as re-to moved by the court and where
trust funds are to be invested by the trustee,
neglect to invest constitutes of itself a breach
of trust, and is a ground for removal (Cavender
v. Cavender, 114 US, 464).

court may allow resignation of a trustee

A trustee, whether appointed by the court or under a

written instrument, may resign his trust if it appears to
the court proper to allow such resignation (Sec. 8, Rule 98,
ROC)'

sECTlON 9 RULE 98. PROCEEDINGS FOR SALE OR

ENCUMBRANCE OF TRUST ESTATE

When court may order sale or

encumbrance of estate held in trust
When the sale or encumbrance of any real or personal
estate held in trust is necessary or expedient, the court

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
436
having jurisdiction of the trust may, on petition and after
due notice and hearing, order such sale or encumbrance
to be made and the reinvestment and application of the
proceeds thereof in such manner as will best effect the
objects of the trust.
The petition, notice, hearing, order of sale or
encumbrance, and record of proceedings, shall conform as
nearly as may be to the provisions concerning the sale or
encumbrance by guardians of the property of minors or
other wards (Sec. 9, Rule 98, ROC).

RULE ON ADOPTION (AM 02-6-02-SC)

A. Domestic Adoption

Section 1. Applicability of the Rule.—This Rule covers the

domestic adoption of Filipino children.
Sec. 2. Objectives.—
(a) The best interests of the child shall be the Para, mount
consideration in all matters relating to his care, custody
and adoption, in accordance with Philippine laws, the
United Nations (UN) Convention on the Rights of the
Child, UN Declaration on Social and Legal Principles
Relating to the Pro. tection and Welfare of Children
with Special Ref. erence to Foster Placement and
Adoption, Na. tionally and Internationally, and the
Hague Con. vention on the Protection of Children and
Cooperation in Respect of Inter-country Adoption.

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 437
(b) The State shall provide alternative protection and
assistance through foster care or adoption for every
child who is a foundling, neglected, orphaned, or
abandoned. To this end, the State shall:
(i) ensure that every child remains under the care and
custody of his parents and is provided with love,
care, understanding and security for the full and
harmonious development of his personality. Only
when such efforts prove insufficient and no
appropriate placement or adoption within the child's
extended family is available shall adoption by an
unrelated erson be considered.
02.602-sc

(ii) safeguard the biological parents from making hasty

decisions in relinquishing their parental

(ii) prevent the child from unnecessary separation

from his biological parents;
(iv) conduct public information and educational
campaigns to promote a positive environment for
adoption;
(v) ensure that government and private sector
agencies have the capacity to handle adoption
inquiries, process domestic adoption applications
and offer adoption-related services including, but
not limited to, parent preparation and post-
adoption education and counseling;
(vi) encourage domestic adoption so as to preserve
the child's identity and culture in his native land,
and only when this is not available shall inter-
country adoption be considered as a last resort;
and

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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(vii)protect adoptive parents from attempts to
disturb their parental authority and custody
over their adopted child.
Any voluntary or involuntary termination of parental
authority shall be administratively or judicially declared so as
to establish the status of the child as "legally available for
adoption" and his custody transferred to the Department of
Social Welfare and Development or to any duly licensed and
accredited child-placing or child-caring agency, which entity
shall be authorized to take steps for the ermanent lacement
of the child.
Sec. 3. Definition of Terms.—For purposes of this
Rule:

(a) "Child" is a person below eighteen (18) years Of age at

the time of the filing of the petition for adoption.

(b) "A child legally available for adoption" refers to a child

who has been voluntarily or involuntarily committed
to the Department or to a duly censed and accredited
child-placing or child. caring agency, freed of the
parental authority of his biological parents, or in case
of rescission of adoption, his guardian or adopter(s).
(c) "Voluntarily committed child" is one whose par. ents
knowingly and willingly relinquish parental authority
over him in favor of the Department.
(d) "Involuntarily committed child" is one whose par.
ents, known or unknown, have been permanently and
judicially deprived of parental authority over him due
to abandonment; substantial, continuous or repeated
neglect and abuse; or incompetence to discharge
parental responsibilities.

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 439
(e) "Foundling" refers to a deserted or abandoned infant or
child whose parents, guardian or relatives are unknown;
or a child committed to an orphanage or charitable or
similar institution with unknown facts of birth and
parentage and registered in the Civil Register as a
"foundling."
(f) "Abandoned child" refers to one who has no proper
parental care or guardianship or whose parents have
deserted him for a period of at least six (6) continuous
months and has been judicially declared as such.
02-602.SC

(g) "Dependent child" refers to one who is without a

parent, guardian or custodian or one whose
parents, guardian or other custodian for good cause
desires to be relieved of his care and custody and is
dependent upon the public for support.
(h) "Neglected child" is one whose basic needs have
been deliberately not attended to or inadequately
attended to, physically or emotionally, by his par-

(i) "Physical neglect" occurs when the child is

malnourished, ill-clad and without proper
shelter.
(j) "Emotional neglect" exists when a child is raped,
seduced, maltreated, exploited, overworked or made
to work under conditions not conducive to good health
or made to beg in the streets or public places, or
placed in moral danger, or exposed to drugs, alcohol,
gambling, prostitution and other vices.

(k) "Child-placement agency" refers to an agency duly

licensed and accredited by the Department to
provide comprehensive child welfare services

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
440
including, but not limited to, receiving applications
for adoption, evaluating the prospective adoptive
parents and preparing the adoption home study
report.
(I) "Child-caring agency" refers to an agency duly
licensed and accredited by the Department that
provides 24-hour residential care services for
abandoned, orphaned, neglected or voluntarily
committed children.
(m) "Department" refers to the Department of Social
Welfare and Develo ment.
Expositi0N

(n) "Deed of Voluntary Commitment" refers to the written

and notarized instrument relinquishing pa rental
authority and committing the child to the' care and
custody of the Department executed by the child's
biological parents or in their absence mental
incapacity or death, by the child's legai guardian, to be
witnessed by an authorized rep. resentative of the
Department after counseling and other services have
been made available to encourage the biological
parents to keep the child.
(o) "Child Study Report" refers to a study made by the
court social worker of the child's legal status
placement history, psychological, social, spiritual'
medical, ethno-cultural background and that his
biological family needed in determining the most
appropriate placement for him.

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 441
(p) "Home Study Report" refers to a study made by the
court social worker of the motivation and capacity of
the prospective adoptive parents to pro. vide a home
that meets the needs of a child.
(q) "Supervised trial custody" refers to the period of time
during which a social worker oversees the adjustment
and emotional readiness of both adopters and adoptee
in stabilizing their filial relationship.
(r) "Licensed Social Worker" refers to one who
possesses a degree in bachelor of science in social
work as a minimum educational requirement and
who has passed the government licensure
examination for social workers as required by
Republic Act No. 4373.
02.6-02-SC

"simulation of birth" is the tampering of the civil

registry to make it appear in the birth records that
a certain child was born to a person who is not his
biological mother, thus causing such child to

(t) "Biological Parents" refer to the child's mother

(u) "Pre-Adoption Services" refer to psycho-social

services provided by professionally-trained social
workers of the Department, the social services units
of local governments, private and government
health facilities, Family Courts, licensed and
accredited child-caring and child-placement
agencies and other individuals or entities involved
in adoption as authorized by the Department.

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
442
(v) "Residence" means a person's actual stay in the
Philippines for three (3) continuous years
immediately prior to the filing of a petition for
adoption and which is maintained until the
adoption decree is entered. Temporary absences
for professional, business, health, or emergency
reasons not exceeding sixty (60) days in one (1) year
does not break the continuity requirement.
(w) "Alien" refers to any person, not a Filipino citizen, who
enters and remains in the Philippines and is in
possession of a valid passport or travel documents and
visa.

Sec. 4. Who may adopt.—The following may adopt:

(1) Any Filipino citizen of legal age, in
possession of civil capacity and legal rightsr
of good moral character, has not been
convicted of an crime
involving moral turpitude; who is emotionally
psychologically capable of caring for children least sixteen
(16) years older than the adoptee and who is in a position
to support and care fotr his children in keeping with the
means of the farn ily. The requirement of a 16-year
difference be tween the age of the adopter and adoptee
may be waived when the adopter is the biological par. ent
of the adoptee or is the spouse of the adoptee's parent;

(2) Any alien possessing the same qualifications as

above-stated for Filipino nationals: Provided That
his country has diplomatic relations with the
Republic of the Philippines, that he has been living
in the Philippines for at least three (3) con.
tinuous years prior to the filing of the petition for
adoption and maintains such residence until the

tified

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 443
adoption decree is entered, that he has been
cerby his diplomatic or consular office or any
appropriate government agency to have the legal
capacity to adopt in his country, and that his gov.
ernment allows the adoptee to enter his country
as his adopted child. Provided, further, That the
requirements on residency and certification of the
alien's qualification to adopt in his 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 child of his
Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to
adopt jointly with his spouse a relative within the
fourth 4th de ree of consan•
02-602-sc

guinity or affinity of the Filipino spouse

(3) The guardian with respect to the ward after the
termination of the guardianship and clearance of

Husband and wife shall jointly adopt, except in the

following casesif one spouse seeks to adopt the legitimate
child or one spouse by the other spouse; or
(ii) if one spouse seeks to adopt his own illegitimate child:
Provided, however, That the other spouse has signified
his consent thereto; or

(iii) if the spouses are legally separated from each

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
444
In case husband and wife jointly adopt or one spouse
adopts the illegitimate child of the other, joint parental
authority shall be exercised by the spouses.

Sec. 5. Who may be adopted.—The following may be

adopted:
(1) Any person below eighteen (18) years of age who
has been voluntarily committed to the
Department under Articles 154, 155 and 156 of
PD 603 or judicially declared available for
adoption;
(2) The legitimate child of one spouse, by the other
spouse;
(3) An illegitimate child, by a qualified adopter to raise the
status of the former to that of legitimacy;

(4) A person of legal age regardless of civil status, if,

prior to the adoption, said person has been
consistently considered and treated by the
adopters as their own child since minorit

(5) A child whose adoption has been previously re

scinded; or

(6) A child whose biological or adoptive parents have

died: Provided, That no proceedings shall be ini.
tiated within six (6) months from the time of death of
said parents.

(7) A child not otherwise disqualified by law or these rules.

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 445
Sec. 6. Venue.—The petition for adoption shall be filed
with the Family Court of the province or city where the
prospective adoptive parents reside.

Sec. 7. Contents of the Petition.—The petition shall be

verified and specifically state at the heading of the ini. tiatory
pleading whether the petition contains an application for
change of name, rectification of simulated birth, voluntary or
involuntary commitment of children, or declaration of child
as abandoned, dependent or neglected.
(1) If the adopter is a Filipino citizen, the petition shall
allege the following:
(a) The jurisdictional facts;
(b) That the petitioner is of legal age, in possession
of full civil capacity and legal rights; is of good
moral character; has not been convicted of any
crime involving moral turpitude; is emotionally
and psychologically capable of caring for
children; is at least sixteen (16) years older than
the adoptee, unless the adopter is the biological
parent of the adoptee or is the spouse of the
adoptee's parent; and is in a position to support
and care for his children in kee in with the

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
446
means of the family and has undergone preadoption services
as required by Section 4 of

(2) If the adopter is an alien, the petition shall allege

(a) The jurisdictional facts;

(b) Sub-paragraph 1 (b) above,
(c) That his country has diplomatic relations with the
Republic of the Philippines;
(d) That he has been certified by his diplomatic or
consular office or any appropriate government agency
to have the legal capacity to adopt in his country and
his government allows the adoptee to enter his
country as his adopted child and reside there
permanently as an adopted child; and
(e) That he has been living in the Philippines for at least three (3)
continuous years prior to the filing of the petition and he
maintains such residence until the adoption decree is

The requirements of certification of the alien's qualification to

adopt in his country and of residency may be waived if the alien:

1 . is a former Filipino citizen who seeks to adopt a relative

within the fourth degree of consanguinity or affinity; or
2. seeks to adopt the legitimate child of his Filipino spouse; or
3. is married to a Filipino citizen and seeks to adopt ointl with
his s ouse a relative within the fourth EXPOSITION degree of
consanguinity or affinity of the Filipino
(3) adoptee, If the adopter the petition is the shall legal
allege guardian that guardianof the ship had been

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 02.602-SC

447
terminated and the guardian had cleared his financial
accountabilities.
(4) If the adopter is married, the spouse shall be a co-petitioner for
joint adoption except if:
1. one spouse seeks to adopt the legitimate
child of the other, or
2. if one spouse seeks to adopt his own illegitimate child and the
other spouse signified written consent thereto, or
3. if the spouses are legally separated from each other.
(5) If the adoptee is a foundling, the petition shall allege the entries
which should appear in his birth certificate, such as name of child,
date of birth, place of birth, if known; sex, name and citizenship of
adoptive mother and father, and the date and place of their
marriage.
(6) If the petition prays for a change of name, it shall
also state the cause or reason for the change of
name.
In all petitions, it shall be alleged:
(a) The first name, surname or names, age and residence of the adoptee
as shown by his record of birth, baptismal or foundling certificate
and school records.
(b) That the adoptee is not disqualified by law to be
r;

(c) The probable value and character of the of

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
448
(d) The first nanne, surname or names by which the adoptee is to be
known and registered in the Civil

A certification of non-forum shopping shall be inpursuant to

Section 5, Rule 7 of the 1997 Rules of

Sec. 8. Rectification of Simulated Birth—ln case the petition also seeks rectification
of a simulated of birth, it shall allege that:
1. Petitioner is applying for rectification of a simu-

2. The simulation of birth was made prior to the date of

effectivity of Republic Act No. 8552 and the application for
rectification of the birth registration and the petition for
adoption were filed within five years from said date;
3. The petitioner made the simulation of birth for the best
interests of the adoptee; and
4. The adoptee has been consistently considered and
treated by petitioner as his own child.

Sec. 9. Adoption of a foundling, an abandoned,

dependent or neglected chi/d.—ln case the adoptee is a
foundling, an abandoned, dependent or neglected child,
the petition shall allege:
l . The facts showing that the child is a foundling,
abandoned, dependent or neglected;
2. The names of the parents, if known, and their residence.
If the child has no known or livin ar-

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE

any;
then the name and residence of the guarq

3 The name of the duly licensed child-placement agency or

individual under whose care the child is in custody; and

4 That the Department, child-placement or child. caring

agency is authorized to give its consent

Sec. 10. Change of name.—ln case the petition also prays

for change of name, the title or caption must

(a) The registered name of the child;

(b) Aliases or other names by which the child has been known;
and

(c) The full name by which the child is to be known.

Sec. 11. Annexes to the Petition.—The following documents
shall be attached to the petition:
baptismal or foundling certificate, as the case
may be, and school records showing the name, age
and residence of the adoptee; of consent of the
following:
1. The adoptee, if ten (10) years of age or over;
2. The biological parents of the child, if known, or the
legal guardian, or the child-placement agency, child-
caring agency, or the proper government
instrumentality which has legal custody of the child;
3. The legitimate and adopted children of the adopter
and of the adoptee, if any, who are ten 10 ears of a e
or over;
4. The illegitimate children of the adopter living
with him who are ten (10) years of age or

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 PROCEEDINGS AN EXHAUSTIVE

5. The spouse, if any, of the adopter or

3. child study report on the adoptee and his biologi-

4. If the petitioner is an alien, certification by his

diplomatic or consular office or any appropriate
government agency that he has the legal capacity to
adopt in his country and that his government alfows the
adoptee to enter his country as his own adopted child
unless exempted under Section 4(2);
5. Home study report on the adopters. If the adopter is an
alien or residing abroad but qualified to adopt, the home
study report by a foreign adoption agency duly accredited
by the Inter-Country Adoption Board; and
6. Decree of annulment, nullity or legal separation of the
adopter as well as that of the biological parents of the
adoptee, if any.

Sec. 12. Order of Hearing.—lf the petition and

attachments are sufficient in form and substance, the court
shall issue an order which shall contain the following:
the registered name of the adoptee in the birth
certificate and the names by which the adoptee has
been known which shall be stated in the caption;
2. the purpose of the petition;
3. the com lete name which the ado tee will use if
436 the petition is granted;

4. the date and place of hearing which shall be within six

(6) nnonths from the date of the issu ance of the order
and shall direct that a copy thereof be published
before the date of hearing at least once a week for
three successive Weeks in a newspaper of general

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02.602-SC

451
circulation in the prov. ince or city where the court is
situated; Provided that in case of application for
change of name the date set for hearing shall not be
within four (4) months after the last publication of the
notice nor within thirty (30) days prior to an election
The newspaper shall be selected by raffle under the supervision
of the Executive Judge.
5. a directive to the social worker of the court, the social
service office of the local government unit or any child-
placing or child-caring agency, or the Department to
prepare and submit child and home study reports before
the hearing if such re. ports had not been attached to the
petition due to unavailability at the time of the filing of
the latter; and
6. a directive to the social worker of the court to conduct
counseling sessions with the biological parents on the
matter of adoption of the adoptee and submit her report
before the date of hearing.

At the discretion of the court, copies of the order of

hearing shall also be furnished the Office of the Solicitor
General through the provincial or city prosecutor, the
Department and the biological parents of the adoptee, if
known.

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
02.602-SC

Ifa change in the name of the adoptee is prayed for in

petition, notice to the solicitor General shall be

sec. 13. Child and Home study Repons.—ln preparing

the child study report on the adoptee, the concerned
social worker shall verify with the Civil Registry the real
identity and registered name of the adoptee. If the birth
of the adoptee was not registered with the Civil Registry,
it shall be the responsibility of the social worker to
register the adoptee and secure a certificate of foundling
or late registration, as the case may be.
The social worker shall establish that the child is legally
available for adoption and the documents in support thereof are
valid and authentic, that the adopter has sincere intentions and
that the adoption shall inure to the best interests of the child.
In case the adopter is an alien, the home study report
must show the legal capacity to adopt and that his
government allows the adoptee to enter his country as
his adopted child in the absence of the certification
required under Section 7(b) of Republic Act No. 8552,
If after the conduct of the case studies, the social worker
finds that there are grounds to deny the petition, he shall
make the proper recommendation to the court, furnishing a
copy thereof to the petitioner.
Sec. 14. Hearing.—Upon satisfactory proof that the Order of
hearing has been published and jurisdictional requirements
have been complied with, the court shall Proceed to hear the
petition. The petitioner and the adoptee must personally appear
and the former must testi before the residin •ud e of the court
on the date set

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 453
438

for hearing.
The court shall verify from the social worker and
de termine whether the biological parent has been
properly counseled against making hasty decisions
caused by strain or anxiety to give up the child;
ensure that all meas. ures to strengthen the family
have been exhausted. ascertain if any prolonged
stay of the child in his own home will be inimical to
his welfare and interest.
Sec. 15. Supervised Trial Custody.—Before
issuance of the decree of adoption, the court shall
give the adopter trial custody of the adoptee for a
period of at least six (6) months within which the
parties are expected to adjust psychologically and
emotionally to each other and establish a bonding
relationship. The trial custody shall be monitored by
the social worker of the court, the Department, or
the social service of the local government unit, or
the child-placement or child-caring agency which
submitted and prepared the case studies. During
said period, temporary parental authority shall be
vested in the adopter.
The court may, motu proprio or upon motion of
any party, reduce the period or exempt the parties
if it finds that the same shall be for the best
interests of the adoptee, stating the reasons
therefor.

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
An alien adopter however must complete the 6-
month trial custody except the following:
a) a former Filipino citizen who seeks to adopt a relative
within the fourth (4th) degree of consanguinity or
affinity; or
b) one who seeks to adopt the legitimate child of
his
Filipino spouse; or
02.602-sc

one who is married to a Filipino citizen and seeks

c) to adopt jointly with his or her spouse the latter's
relative within the fourth (4th) degree of consan-

If the child is below seven (7) years of age and is placed

with the prospective adopter through a preadoption
placement authority issued by the Department, the court
shall order that the prospective adopter shall enjoy all the
benefits to which the biological parent is entifled from the
date the adoptee is placed with him.
The social worker shall submit to the court a report on
the result of the trial custody within two weeks after its
termination.

Sec. 16. Decree of Adoption.—-lf the supervised trial

custody is satisfactory to the parties and the court is
convinced from the trial custody report and the evidence
adduced that the adoption shall redound to the best
interests of the adoptee, a decree of adoption shall be
issued which shall take effect as of the date the original

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 455
petition was filed even if the petitioners die before its
issuance. The decree shall:
A. State the name by which the child is to be known
and registered;
B. Order:
1 . the Clerk of Court to issue to
the adopter a certificate of
finality upon expiration of the
15-day reglementary period
within which to appeal;
2 the adopter to submit a certified
true copy of the decree of ado
tion and the certificate of
Exposfrlotl

finality to the Civil Registrar

where the was originally
registered within thirty (30)
days from receipt of the
certificate of finality In case
of change of name, the
decree Shali be subnlitted
to the Civil Registrar where
the court issuing the same is
situated.
3 the Civil Registrar of the place
Where the adoptee was
registered: a. to annotate on
the adoptee's original
certificate of birth the decree
of adoption within thirty (30)
days from receipt of the

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
certificate of finality; b. to issue a certificate of
birth which shall not bear any notation that it is
a new or amended certificate and which shall
show, among others, the following: reg. istry
number, date of registration, name of child, sex,
date of birth, place of birth, name and
citizenship of adoptive mother and father, and
the date and place of their marriage, when
applicable;
c. to seal the original certificate of birth in
the civil registry records which can be
opened only upon order of the court
which issued the decree of adoption;
and

to submit to the court issuing the decree of

adoption proof of compliance with all the
foregoing within thirty days from receipt of
the decree.
If the adoptee is a foundling, the court shall order the Civil
Registrar where the foundling was registered, to annotate the
decree of ado tion on the foundlin certificate
02-602.sc

d a new birth certificate shall be ordered prepared

by civil Registrar in accordance With the
17. Book of Adoptions.—The
sec.

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 decree.
Clerk of Court
457
date of issuby
keep a book of adoptions showing
the Civil
the ance of the decree in each case,
incidents arising
compliance 8egistrar with Section
16(B)(3) and all after the issuance of
Proceedings and
the decree. after
Sec. 18. Confidential Nature of complibe
confidenrecor
Records.—AlI hearings in adoption cases,ds, books the
ance with the jurisdictional requirementsfiles of the or
shall tial and shall not be open to theinstitution
public. All and papers relating to theshall be kept
adoption cases in court, the Department,
or any other agency participating in thethe
adoption proceedings strictly
information
confidential. reasons or for
adoption and the
If the court finds that the disclosure of
court may,
to a third person is necessary for security information to
purposes connected with or arising out of be it may be
the will be for the best interests of the
adoptee, upon proper motion, order the
necessary released, restricting thethe Adoptee.—
purposes for which used. adoptee
who the
Sec. 19. Rescission of Adoption of assistance is
The petition shall be verified and filed byover eightby
his guardian
the is over eighteen (18) years of age, or
with of the Department, if he is a minor,
or if he een (18) years of age but is on any of
incapacitated, or counsel. the
The adoption may be rescinded based
following grounds committed by the adopter: repeated
physical and verbal maltreatment by

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
l) adopter despite having undergone counseling on
the life of the adoptee;

3) sexual assault or violence; or

4) abandonment or failure to comply with Parental
obligations.

Adoption, being in the best interests of the child,

shall not be subject to rescission by the adopter.
However, the adopter may disinherit the adoptee for
causes provided in Article 919 of the Civil Code.
Sec. 20. Venue.—The petition shall be filed with the Family
Court of the city or province where the adoptee resides.

Sec. 21. Time within which to file petition—The adoptee, if

incapacitated, must file the petition for rescis. sion or
revocation of adoption within five (5) years after he reaches
the age of majority, or if he was incompetent at the time of the
adoption, within five (5) years after recovery from such
incompetency.

Sec. 22. Order to Answer.—The court shall issue an order

requiring the adverse party to answer the petition within
fifteen (15) days from receipt of a copy thereof. The order and
copy of the petition shall be served on the adverse party in
such manner as the court may direct.

Sec. 23. Judgment.—lf the court finds that the

allegations of the petition are true, it shall render judgment
ordering the rescission of adoption, with or without costs
as justice requires.
AM 02-6asc

The court shall order that the parental authority of the

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 459
biological of the parent Department of the adoptee, shall
be if restored known, if or the the adoptee legal cus-is

still a minor or incapacitated and declare that the

reciprocal rights and obligations of the adopter and the
adoptee

The court shall further declare that successional rights

shall revert to its status prior to adoption, as of the date of
judgment of judicial rescission. Vested rights acquired prior
to judicial rescission shall be respected.
It shall also order the adoptee to use the name stated in
his original birth or foundling certificate.
The court shall further order the Civil Registrar where
the adoption decree was registered to cancel the new birth
certificate of the adoptee and reinstate his original birth or
foundling certificate.
Sec. 24. Service of Judgment.—A certified true copy of
the judgment together with a certificate of finality issued by
the Branch Clerk of the Court which rendered the decision in
accordance with the preceding Section shall be served by
the petitioner upon the Civil Registrar concerned within
thirty (30) days from receipt of the certificate of finality. The
Civil Registrar shall forthwith enter the rescission decree in
the register and submit proof of compliance to the court
issuing the decree and the Clerk of Court within thirty (30)
days from receipt of the decree.
The Clerk of Court shall enter the compliance in
accordance with Section 17 hereof.

Sec. 25. Repeal.—This supersedes Rule 99 on Ado

tion and Rule 100 of the Rules of Court.
444

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
B. Inter-Country Adoption

Sec. 26. App/icabi/ity.—The following sections ply to inter-country adoption of

Filipino children by foreign' nationals and Filipino citizens permanently residing abroad.

Sec. 27. Objectives.—The State shall:

a) consider inter-country adoption as an alternative

means of child care, if the child cannot be placed in a
foster or an adoptive family or cannot, in any suitable
manner, be cared for in the Philippines;
b) ensure that the child subject of inter-country
adoption enjoys the same protection accorded to
children in domestic adoption; and c) take all
measures to ensure that the placement arising
therefrom does not result in improper fl. nancial
gain for those involved.

Sec. 28. Where to File Petition.—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.

Sec. 29. Who may be adopted.—Only a child legally

available for domestic adoption may be the subject of inter-
country adoption.

Sec. 30. Contents of Petition.—The petitioner must alle e:

02.602.SC

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 461
his age and the age of the child to be adopted
a) showing that he is at least twenty-seven (27)
years of age and at least sixteen (16) years
older than the child to be adopted at the time
of application, unless the petitioner is the
parent by nature of the child to be adopted or
the spouse of such parent, in which case the
age difference does not apply;

b) if married, the name of the spouse who must be

joined as co-petitioner except when the adoptee
is a legitimate child of his spouse; all
c) that he has the capacity to act and assume rights
the
and responsibilities of parental authority under
his national laws, and has undergone appropriate
counseling from an accredited counselor in his
country;
d) that he has not been convicted of a crime
involving moral turpitude;
e) that he is eligible to adopt under his national
examb
law; e
f) that he can provide the proper care and
support and instill the necessary moral values the
and ple to all his children, including the child the
to adopted; and
to
g) that he agrees to uphold the basic rights of
child, as embodied under Philippine laws and No,
U.N. Convention on the Rights of the Child, to
abide by the rules and regulations issued Phil
implement the provisions of Republic Act gov
8043; -

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
h) that he comes from a country with which the
ippines has diplomatic relations and whose
ernment maintains a similarl authorized and ac-
Exposfr10N 446

credited agency and that adoption of a Filipino child is

allowed under his national laws; and
that he possesses all the qualifications and none of the
disqualifications provided in this Rule, in Republic Act No.
8043 and in all other applicable Philippine laws.
i)
31, Annexes.—The petition for adoption shall following
annexes written and officially trans. English:
Birth certificate of petitioner;
Sec. Marriage contract, if married, and, if applicable divorce
contain the decree, or judgment dissolving the marriage;
lated in Sworn statement of consent of petitioner's bio. logical
a) or adopted children above ten (10) years age;
b) the
Physical, medical and psychological evaluation of
petitioner certified by a duly licensed physiand
c) of
psychologist;
d) the Income tax returns or any authentic document
cian showing the current financial capability of the
petitioner; clearance of petitioner issued within six
e)
(6) months before the filing of the petitioner;
Character reference from the local church/minister,
f) Police petitioner's employer and a member of the
immediate community who have known the petifor
at least five (5) years; body postcard-size pictures of
g) the the petitioner his immediate family taken at least
tione six (6) nths before the filin of the etition.
r

h) Full
and
mo
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 463

02923

32. Duty of Coutts—The court, after finding sec.

that the petition is sufficient in form and substance and a
proper case for inter-country adoption, shall immediately
transmit the petition to the Inter-Country Adoption Board
for appropriate action.
Sec. 33. Effectivity.—This Rule shall take effect on
August 22, 2002 following its publication in a newspaper
of eneral circulation.

RULE 99, ADOPTION AND CUSTODY OF MINORS,

AS AMENDED BY AM 02-6.02-SC DATED
AUG. 22, 2002 OR THE RULE ON ADOPTION
(DOMESTIC AND INTER-COUNTRY)

Adoption defined
Adoption is defined as the process of making a child,
whether related or not to the adopter, possess in general
the rights accorded to a legitimate child. It is a juridical
act, a proceeding in rem which creates between two (2)
persons a relationship similar to that which results from
legitimate paternity and filiation.
The modern trend is to consider adoption not merely as an
act to establish a relationship of paternity and filiation but also
as an act which endows the child with a legitimate status (In
the Matter of the Adoption of Stephanie Nathy Astorga Garcia,
GR 148311, Mar. 31, 2005, 494 Phil. 515).

Objectives of adoption laws

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
Adoption statutes, being humane and salutary, hold the
interest and welfare of the child to be of paramount
consideration and are designed to provide homes tal care and
education for unfortunate, needy or children and give them the
protection of society and family in the person of the adopter as well
as to allow childless couples or persons to experience the joys of
parenthood and give thenl legally a child in the person of the
adopteq for the manifestation of their should natural thus parental
be sustained instinctsto
reasonable intendment promote and fulfill these noble and
compassionate tives of the law (Mal/<inson v. Agrava, GR L-36309
26, 1973, 153 Phil. 339).

Best interest of the child not the sole anchor of

adoption proceedings
The discretion to approve adoption proceedings is not to be
anchored solely on best interests of the child but likewise, with due
regard to the natural rights of the par. ents over the child (Cang v.
CA, GR 105308, Sept. 25 1998, 296 SCRA 128).

Adoption is not an adversarial proceeding

Adoption is not an adversarial proceeding. An adversarial
proceeding is one having opposing parties, con. tested, as
distinguished from an ex parte application, one of which the party
seeking relief has given legal warning to the other party and
afforded the latter an opportunity to contest it (Republic v,
Valencia, GR L-32181, Mar. 5, 1986, 141 SCRA 462).

Adoption an action in rem

In an adoption case which involves the status of a person,

there is no particular defendant to speak of since the action is
one in rem. In such case, jurisdiction over the person of the
defendant is a non-essential condition for
02-602-SC

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 465
taking of a deposition for the jurisdiction of the court is
based on its power over the rest to render judgment With
respect indifferently to such "thing" all who (or might status,
be as minded in this to case) make so anas to jection against
the right so established (E/ Banco EspanolFilipino v. Pa/anca,
GR L-11390, Mar. 26, 1918, 87 Phil.
921).

A. DOMESTIC ADOPTION
SECTION 1 AM 02-6-02-SC. APPLICABILITY OF THE RULE

Scope of the Rule on Adoption

The Rule on Adoption covers the domestic adoption of
Filipino children.

SECTION 2 AM 02-6-02-SC. OBJECTIVES

Purposes of the Rule on Adoption
The objectives of the Rule on Adoption are:
I. The best interests of the child shall be the paramount
consideration in all matters relating to his care,
custody and adoption, in accordance with:
(a) Philippine laws;
(b) the United Nations (UN) Convention on the
Rights of the Child;
(c) the UN Declaration on Social and Legal
Principles Relating to the Protection and
Welfare of Children with Special Reference to

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
Foster Placement and Adoption, Nationally
and Internationally; and
450

(d) the Hague Convention on the Protection

Children and Cooperation in Respect Of In ter-
country Adoption.

2. The State shall provide alternative protection assistance

through foster care or adoption for every child who is a
foundling, neglected, orphaned abandoned. To this end,
the State shall:
(a) ensure that every child remains under the care
and custody of his parents and is pro. vided with
love, care, understanding and curity for the full
and harmonious develop. ment of his
personality. Only when such efforts prove
insufficient and no appropriate placement or
adoption within the child's ex. tended family is
available shall adoption by an unrelated person
be considered.
(b) safeguard the biological parents from making hasty
decisions in relinquishing their parental authority
over their child;
(c) prevent the child from unnecessary separation from
his biological parents;
(d) conduct public information and educational campaigns
to promote a positive environment for adoption;

(e) ensure that government and private sector

agencies have the capacity to handle adoption
inquiries, process domestic adoption applications
and offer adoption-related services including, but

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 467
not limited to, parent preparation and post-
adoption education and counseling;
(f) encourage domestic adoption so as to preserve the
child's identity and culture in his

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
native land, and only when this is not available shall
inter-country adoption be considered as a last resort;
and
(g) protect adoptive parents from attempts to disturb
their parental authority and custody over their
adopted child.

Administrative orjudicial declaration d

voluntary or involuntary termination
ofparental authority
Any voluntary or involuntary termination of parental authority
shall be administratively or judicially declared so as to establish
the status of the child as "lega//y available for adoption" and his
custody transferred to the Department of Social Welfare and
Development (DSWD) or to any duly licensed and accredited
child-placing or childcaring agency which entity shall be
authorized to take steps for the permanent placement of the child
(Sec. 2 AM 02-6-02-SC).

SECTION 3, AM 02-6-02-SC. DEFINITION OF TERMS

For purposes of the Rule on Adoption, the following terms
shall mean:
(a) "Child" is a person below eighteen (18) years of age at the
time of the filing of the petition for adoption.
(b) "A child legally available for adoption" refers to a child
who has been voluntarily or involuntarily committed to
the DSWD or to a duly licensed and accredited child-
placing or child-caring agency, freed of the parental
authority of his biological parents, or in case of
rescission of adoption, his guardian or adopter(s).
452

'Voluntarily comnlitted child" is one parents knowingly

and willingly relinquish tal authority over him in favor of the

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02.602-SC

469
DSWD "lnvoluntarily committed child" is one Whose parents,
known or unknown, have been perma nently and judicially
deprived Of parental authority over him due to abandonment;
substantial cons tinuous or repeated neglect and abuse; or in.
competence to discharge parental responsibili_ ties.
"Foundling" refers to a deserted or abandoned infant or
child whose parents, guardian or tives are unknown; or
a child committed to an phanage or charitable or similar
institution with unknown facts of birth and parentage
and regis. tered in the Civil Register as a "foundling."
(f) "Abandoned child" refers to one who has no proper
parental care or guardianship or whose parents have
deserted him for a period of at least six (6) continuous
months and has been judicially declared as such.
(g) "Dependent child" refers to one who is without a parent,
guardian or custodian or one whose parents, guardian or
other custodian for good cause desires to be relieved of his
care and custody and is dependent upon the public for
support.
(h "Neglected child" is one whose basic needs have been
deliberately not attended to or inadequately attended to,
physically or emotionally, by his parents or guardian.
(l) "Physical neglect" occurs when the child is malnourished, ill-
clad and without proper shelter,

"Emotional neglect" exists when a child is raped, seduced,

maltreated, exploited, overworked or made to Work under
conditions not conducive to good health or made to beg in the
streets or public places, or placed in moral danger, or exposed to
drugs, alcohol, gambling,

(k) "Child-placement agency" refers to an agency duly licensed

and accredited by the DSWD to provide comprehensive child

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
welfare services including, but not limited to, receiving
applications for adoption, evaluating the prospective
adoptive parents and preparing the adoption home study
report.
"Child-caring agency" refers to an agency duly licensed and
accredited by the DSWD that provides 24-hour residential
care services for abandoned, orphaned, neglected or
voluntarily committed children.
(m) "Department" refers to the Department of Social Welfare and
Development (DSWD).

(n) "Deed of Voluntary Commitment" refers to the written

and notarized instrument relinquishing parental authority
and committing the child to the care and custody of the
DSWD executed by the child's biological parents or in
their absence, mental incapacity or death, by the child's
legal guardian, to be witnessed by an authorized
representative of the DSWD after counseling and other
services have been made available to encourage the
biological parents to keep the child.
(0) "Child Study Report" refers to a study made by the court
social worker of the child's legal status, placement history,
psychological, social, spiritual,
454

niedical, ethno-cultural background and th his biological

appropriate family placement needed for in
him.determining tth0f

(p) "Hotne study Repott" refers the to motivation a study made

and by the court social worker of pacity of the prospective
adoptive parents to vide a home that meets the needs of a
child "Supetvised trial custody" refers to the period of time
during which a social worker oversees the adjustment and

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02.602-SC

471
emotional readiness of both adopters and adoptee in
stabilizing their filial rela tionship.

(r) "Licensed Social Worker" refers to one Who possesses

a degree in bachelor of science in so. cial work as a
minimum educational requirement and who has passed
the government licensure examination for social
workers as required by Republic Act No. 4373.
(s) "Simulation of birth" is the tampering of the civil registry to
make it appear in the birth records that a certain child was
born to a person who is not his biological mother, thus causing
such child to lose his true identity and status.

(t) "Biological Parents" refer to the child's mother and father

by nature.
(u) "Pre-Adoption Services" refer to psycho-social services
provided by professionally-trained social workers of the
DSWD, the social services units of local governments,
private and government health facilities, Family Courts,
licensed and accredited child-caring and child-placement
agencies and other individuals or entities involved in
adoption as authorized by the DSWD.
"Residence" means a person's actual stay in the
philippines for three (3) continuous years immediately
prior to the filing of a petition for adoption and which is
maintained until the adoption decree is entered.
Temporary absences for professional, business, health, or
emergency reasons not exceeding sixty (60) days in one (1)
year does not break the continuity requirement.
(w) "Alien" refers to any person, not a Filipino citizen, who
enters and remains in the Philippines and is in
possession of a valid passport or travel documents and
visa.

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE

SECTION 4 AM 02-6-02-SC. WHO MAY ADOPT

Person who may be allowed to adopt
The following persons may adopt:
(1) Any Filipino citizen:
(a) of legal age;
(b) in possession of full civil capacity and legal rights;
(c) of good moral character;
(d) who has not been convicted of any crime involving
moral turpitude;

(e) who is emotionally and psychologically cæ pable of

caring for children;
(f) who is at least sixteen (16) years older than the
adoptee; and
(g) who is in a position to support and care for his
children in keeping with the means of the family;

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 PROCEEDINGS AN EXHAUSTIVE

(2) Anyabove-stated alien possessing for Filipino the same

nationals: qualificationsProvideq

That:
(a) his/her country has diplomatic relations With the Republic of
the Philippines;

(b) he/she has been living in the Philippines for at least three (3)
continuous years prior to the filing of the petition for
adoption and maintains such residence until the adoption
decree is entered;

(c) he/she has been certified by his diplomatic or consular

office or any appropriate gov. ernment agency to have
the legal capacity to adopt in his/her country; and
(d) his/her government allows the adoptee to enter his/her
country as his/her adopted child. Provided, further, That the
require. ments on residency and certification of the alien's
qualification to adopt in his 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 child of his Filipino
spouse; or
(iii) one who is married to a Filipino citizen and seeks to
adopt jointly with his spouse a relative within the
fourth (4th) degree of (iii)consanguinity or affinity of
the Filipino spouse; and
(3) The guardian with respect to the ward after the termination
of the guardianship and clearance Of
his financial accountabilities (sec, 7, RA 8552;

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husband and wife may not jointly

adopt
The husband and the wife shall jointly adopt, except:
(a) if one spouse seeks to adopt the legitimate son/daughter
of the other; or

(b) 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

(c) if the spouses are legally separated from each other (Sec.
7, RA 8552).

When age difference requirement between

adopter and adoptee may be waived
The requirement of sixteen (16) year difference between the
age of the adopter and adoptee may be waived when the
adopter is:
(1) the biological parent of the adoptee; or
(2) the spouse of the adoptee's parent (Sec. 7, RA 8552).

When spouses shall exercise joint parental

authority
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 (Sec. 7, RA 8552).
458

SECTION 5 AM 02-6-02-SC. WHO MA Y BE persons be

eligible for adoption

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475
The following persons may be adopted:
1. Any person below eighteen (18) years of who has
been voluntarily committed to the DSWD under
Articles 154, 155 and 156 of 603 or has been judicially
declared available for adoption;
2. The legitimate child of one spouse, by the other spouse;

3. An illegitimate child, by a qualified adopter to raise

the status of the former to that of legitimacy, 4. A
person of legal age regardless of civil status, if prior to
the adoption, said person has been con. sistently
considered and treated by the adopters as their own
child since minority;
5. A child whose adoption has been previously rescinded;
or
6. A child whose biological or adoptive parents have
died: Provided, That no proceedings shall be
initiated within six (6) months from the time of
death of said parents.
7. A child not otherwise disqualified by law or rules
(Sec. 8, RA 8552; sec. 5, AM 02-6-02-SC).
SECTION 6 AM 02-6-02-SC. VENUE
Where to file petition for adoption

The petition for adoption shall be filed with the Family

Court (RTC) of the province or city where the prospective
adoptive parents reside.

SECTION 7 AM 02-6-02-SC, CONTENTS OF THE PETI-

TION

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE

form and substance of the petition Form of

the petition

The petition shall: be verified;

and
specifically state at the heading of the initiatory pleading
whether the petition contains: an application for change
of name; rectification of simulated birth;
voluntary or involuntary commitment of children; or
declaration of child as abandoned, dependent or
neglected.

B, Matters to be alleged in the petition ifadopter is

a Filipino Citizen
If the adopter is a Filipino citizen, the petition shall allege the
following:
(a) The jurisdictional facts;
(b) The fact that the petitioner:
is of legal age;
(2) is in possession of full civil capacity and legal rights; is
of good moral character; has not been convicted of any
crime involving moral turpitude;
460 is emotionally and psychologically capable

is at least sixteen (16) years older than the adoptee,

unless the adopter is the biologi. cal parent of the
adoptee or is the spouse of the adoptee's parent;
and

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477
is in a position to support and care for his children in
keeping with the means of the family and has
undergone pre-adoption services as required by
Section 4 of Re. public Act No. 8552.

C, Matters to be alleged in the petition if

adopter is an alien
If the adopter is an alien, the petition shall allege the
following:
(1) The jurisdictional facts;
(2) The fact that the petitioner:
is Of legal age;
is in possession of full civil capacity and legal rights;
is of good moral character; has not been convicted
of any crime involving moral turpitude; is
emotionally and psychologically capable of caring for
children;
(f) is at least sixteen (16) years older than the
adoptee, unless the adopter is the biological
parent of the adoptee or is the spouse of the
adoptee's parent; and

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
02.6Ü-SC

(g) is in a position to support and care for his children in

keeping with the means of the family and has
undergone pre-adoption services as required by
Section 4 of Re-

(3) The fact that his/her country has diplomatic relations with
the Republic of the Philip-

(4) The fact that he/she has been certified by his

diplomatic or consular office or any appropriate
government agency to have the legal capacity to
adopt in his country and his government allows the
adoptee to enter his/her country as his/her
adopted child and reside there permanently as an
adopted child; and
(5) The fact that he/she has been living in the Philippines for
at least three (3) continuous years prior to the filing of the
petition and he maintains such residence until the
adoption decree is entered.

D, Matters to be alleged in the petition if

adopter is the legal guardian
If the adopter is the legal guardian of the adoptee, the petition shall
allege:

(a) that the guardianship had been terminated; and

(b) that the guardian had cleared his financial
accountabilities.
E. Matters to be alleged in the petition if
adoptee is a foundling

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 479

462

If the adoptee is a foundling, the petition shall state, the

entries which should appear in his birth Cer.
tificate, such as: (a) name of child;
(b) date of birth,
(c) place of birth, if known; and
the sex, name and citizenship of adoptive mother
and father; and the date and place of their
marriage.

F. Matters to be alleged in the petition if it also

prays for a change of name
If the petition prays for a change of name, it shall
also state the cause or reason for the change of
name; the title or caption of the petition must also
contain:
the registered name of the child;
the aliases or other names by which the child has been
known; and
the full name by which the child is to be known
(Secs. 7 and 10, AM 02-6-02-SC).
G. Matters to be alleged in the petition if it
seeks rectification of simulated birth
In case the petition also seeks rectification of a simulated of birth,
it shall state that:

(1) the Petitioner is applying for rectification Of a simulated birth;

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
(2) the simulation of birth was made prior to the date of
effectivity of Republic Act No. 8552 and the
application for rectification of the birth registration and the
petition for adoption were filed within five

(3) the petitioner made the simulation of birth for the best
interests of the adoptee; and
(4) the adoptee has been consistently considered and
treated by petitioner as his own child (Sec. 8,

H, Matters to be alleged in the petition in case

the adoptee is a foundling, an abandoned,
dependent or neglected child
In case the adoptee is a foundling, an abandoned, dependent or
neglected child, the petition shall allege the following:
(a) the facts showing that the child is a foundling,
abandoned, dependent or neglected;
(b) the names of the parents, if known, and their
residence. If the child has no known or living parents,
then the name and residence of the guardian, if any;
(c) the name of the duly licensed child-placement
agency or individual under whose care the child is
in custody; and
(d) the fact that the DSWD, child-placement or
childcaring agency is authorized to give its consent.
l. Instances when the spouse of adopter need
not be a co-petitioner

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 481
If the adopter is married, the spouse shall be a
coPetitioner for joint adoption, except if:
Exposition

J64 one spouse seeks to adopt the legitimate of the

other; or one spouse seeks to adopt his own
illegitimate
) child and tine other spouse signified written sent thereto; or
(3) the spouses are legally separated from each other.

J. 14/fien the required certification ofalien's qualification to

adopt may be waived
The requirements of certification of the alien's qualification to adopt in
his country and of residency may be waived if the alien:
(a) is a former Filipino citizen who seeks to adopt a relative within the
fourth degree of consanguinity or affinity; or

(b) seeks to adopt the legitimate child of his Filipino spouse; or

(c) is married to a Filipino citizen and seeks to

adopt jointly with his spouse a relative
within the fourth degree of consanguinity or affinity
of the Filipino spouse.
K Matters to be alleged in all of the petitions

In all petitions, the following shall be alleged:

(a) The first name, surname or names, age and residence of the
adoptee as shown by his record of birth, baptismal or foundling
certificate and school records;
(b) The fact that the adoptee is not disqualified by law to
be adopted'

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 PROCEEDINGS AN EXHAUSTIVE

(c) The probable value and character of the estate

(d) The first name, surname or names by which the

adoptee is to be known and registered in the

petition should include a cerification of non-

forum shopping
A certification of non-forum shopping shall be induded in
the petition in accordance with Section 5, Rule 7 of 1997
Rules of Civil Procedure (sec. 9, AM 02-6-02-

sECTION 8 AM 02-6-02-SC. RECTIFICATION OF LATED

BIRTH

Rectification of simulated of birth

In case the petition also seeks rectification of a

simulated birth, it shall allege that:
(1) the Petitioner is applying for rectification of a
simulated birth;
(2) the simulation of birth was made prior to the date of
effectivity of Republic Act No. 8552 and the
application for rectification of the birth registration
and the petition for adoption were filed within five
(5) years from said date;
(3) the petitioner made the simulation of birth for the best
interests of the adoptee; and

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483

(4) the adoptee has been consistently considered and

treated by petitioner as his own child (Sec. 8, A',1 02-
6-02-SC).
of defined
of birth is the offense committed by

person who shall cause the fictitious registration of t Y biflh of a

child under the name(s) of a person(s) who is his!her biological
parent(s) (Sec. 21, RA 8552).

SECTION 9 AM 02-6-02-SC. ADOPTION OF A FOUND

LING AN ABANDONED DEPENDENT OR
GLECTED CHILD

In case the adoptee is a foundling, an abandoned dependent

or neglected child, the petition shall allege
(a) the facts showing that the child is a foundling abandoned,
dependent or neglected;
(b) the names of the parents, if known, and their residence. If the
child has no known or living par. ents, then the name and
residence of the guard. ian, if any;
(c) the name of the duly licensed child-placement agency or
individual under whose care the child is in custody; and
(d) that the DSWD, child-placement or child-caring agency is
authorized to give its consent (Sec. 9, AM 02- 6-02-
SC).

SECTION 10 AM 02-6-02-SC. CHANGE OF NAME

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Contents of title or caption if petition includes plea for change

of name

In case the petition also prays for change of

nama the title or caption must contain:
(1) the registered name of the child;
(2) aliases or other names by which the
child has

(3) the full name by Which the child is to be known (Sec. 10,
AM 02-6-02-SC).

SECTION 11 AM 02-6-02-SC. ANNEXES To THE PETITION

Annexes to the petition

The following documents shall be attached to the peti-
tion:

(a) Birth, baptismal or foundling certificate, as the case

may be, and school records showing the name, age and
residence of the adoptee; (b) Affidavit of consent of the
following:
(1) the adoptee, if ten (10) years of age or over;
(2) the biological parents of the child, if known, or
the legal guardian, or the child-placement
agency, child-caring agency, or the proper
government instrumentality which has legal
custody of the child;

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485

(3) the legitimate and adopted children of the adopter

and of the adoptee, if any, who are ten (10) years of
age or over;
(4) the illegitimate children of the adopter living with
him who are ten (10) years of age or over; and
(5) the spouse, if any, of the adopter or adoptee;
(c) Child study report on the adoptee and his biologi cal
parents;

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
466

Simulation of birth defined

Sinwlation of birth is the offense
committed by person who shall cause the
fictitious registration birth of a child under
the name(s) of a person(s) Who his/her
biological parent(s) (Sec. 21, RA 8552),

SECTION 9 AM 02-6-02-SC. ADOPTION OF A

LING AN ABANDONED DEPENDENT OR

GLECTED CHILD

In case the adoptee is a foundling, an abandoned

dependent or neglected child, the petition shall allege
(a) the facts showing that the child is a foundling
abandoned, dependent or neglected;
(b) the names of the parents, if known, and
residence. If the child has no known or living par.
ents, then the name and residence of the guard.
ian, if any;
(c) the name of the duly licensed child-placement
agency or individual under whose care the child is
in custody; and
(d) that the DSWD, child-placement or child-caring
agency is authorized to give its consent (Sec. 9,
AM 02-6-02-SC).

SECTION 10 AM 02-6-02-SC. CHANGE OF NAME

Contents of title or caption if petition includes plea

for change of name

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02-602SC
467
In case the petition also prays for change of namet the
title or caption must contain:

(1) the registered name of the child;

(2) aliases or other names by which the child has

(3) the full name by which the child is to be known

sECT/ON 11 AM 02-6-02-SC. ANNEXES To THE

PETI-

Annexes to the petition

The following documents shall be attached to the
peti-
tion:

(a) Birth, baptismal or foundling certificate, as

the case may be, and school records showing
the name, age and residence of the adoptee;
(b) Affidavit of consent of the following:
(1) the adoptee, if ten (10) years of age or
over;
(2) the biological parents of the child, if
known, or the legal guardian, or the child-
placement agency, child-caring agency, or
the proper government instrumentality
which has legal custody of the child;

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
(3) the legitimate and adopted children of the
adopter and of the adoptee, if any, who are
ten (10) years of age or over;

(4) the illegitimate children of the adopter

living with him who are ten (10) years of
age or over; and
(5) the spouse, if any, of the adopter or adoptee;
(c) Child study report on the adoptee and his
biological parents;
468 E EXPOSITION

(d) If the petitioner is an alien, certification by his dip

lomatic or consular office or any appropriate
ernment agency that he has the legal capacity to
adopt in his country and that his government al

lows the adoptee to enter his country as his own

adopted child unless exempted under Section
4(2);

(e) Home study report on the adopters. If the

adopter is an alien or residing abroad but
qualified to adopt, the home study report by a
foreign tion agency duly accredited by the
Inter-country Adoption Board (ICAB); and
(0 Decree of annulment, nullity or legal separation of
the adopter as well as that of the biological
parents of the adoptee, if any (Sec. 11, AM 02-6.
02-sc).

Whose consent is necessary to adoption

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469
The following persons, after being properly counseled
and informed of his/her right to give or withhold his/her
approval of the adoption, must give his/her written
consent to the adoption:
(1 The adoptee, if ten (10) years of age or over;
(2 The biological parent(s) 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
(10) years of age or over, of the adopter(s) and
adoptee, if any;
(4 The illegitimate sons/daughters, ten (10) years
of age or over, of the adopter, if living with said
adopter and the latter's souse, if any; and
The spouse, if any, of the person adopting or to
be adopted (Section 9 of Republic 8552)
The affidavits of consent of the persons required to
written consent to the adoption shall be attached to

purpose of consent and notice

The general requirement of consent and notice to
the natural parents is intended to protect the natural
parental relationship from unwarranted interference
by interlopers, and to insure the opportunity to
safeguard the best interests of the child in the
manner of the proposed adoption (Landingin v.
Republic, GR 164948, June 27, 2006, 493 SCRA 415).

sECTION 12 AM 02-6-02-SC. ORDER OF HEARING

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
Coud to issue order of hearing
containing statement of facts and
directives
If the petition and attachments are sufficient in
form and substance, the court shall issue an order
which shall contain the following:
(a) the registered name of the adoptee in the
birth certificate and the names by which the
adoptee has been known which shall be
stated in the caption;
(b) the purpose of the petition;
(c) the complete name which the adoptee will
use if the petition is granted;
(d) the date and place of hearing;
(e) a directive to the social worker of the
court, the social service office of the local
government unit
470

or any child-placing or child-caring agency or the

DSWD to prepare and submit child and home
study reports before the hearing if such reports
had not been attached to the petition due to un
availability at the time of the filing of the latter.
and
(f) a directive to the social worker of the court to
conduct counseling sessions with the biological
parents on the matter of adoption of the
adoptee and submit her report before the date
of hearing

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02-602SC
471
At the discretion of the court, copies of the order of
hearing shall also be furnished the following:
(1) Office of the Solicitor General through the
provincial or city prosecutor;
(2) the DSWD,• and
(3) the biological parents of the adoptee, if known,

If a change in the name of the adoptee is prayed

for in the petition, notice to the Solicitor General
shall be manda. try (Sec. 12, AM 02-6-02-SC).
Date and place of hearing;
publication of the notice of hearing

The date and place of hearing shall be set within six (6)
months from the date of the issuance of the order.
A copy thereof shall be published before the date of
hearing at least once a week for three (3) successive weeks
in a newspaper of general circulation in the prove ince or
city where the court is situated; Provided, that in case of
application for change of name, the date set for hearing
shall not be within four (4) months after the last publication
of the notice nor within thirty (30) days prior to an election.
The newspaper shall be selected by raffle under the
supervision of the Executive Judge (Sec. 12(4), AM 02-
6. 02,sc).

SECTION REP13 ORTSAM 02-6-02-SC. CHILD AND

HOME

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
child study report on the adoptee
In preparing the child study report on the adoptee,
the concerned social worker shall verify with the Civil
Registry the real identity and registered name of the
adoptee. If the birth of the adoptee was not registered
with the Civil Registry, it shall be the responsibility of
the social worker to register the adoptee and secure a
certificate of foundling or late registration, as the case
may be (Sec. 13, AM 02-602-sC).

Facts to be established by the social worker

The social worker shall establish the following facts:
(a) that the child is legally available for adoption;
(b) that the documents in support thereof are valid
and authentic;
(c) that the adopter has sincere intentions; and
(d) that the adoption shall inure to the best
interests of the child (Sec. 13, AM 02-6-02-SC).
legal capacity of alien to adopt must be
shown in the report

In case the adopter is an alien, the home study

report must show the legal capacity to adopt and that
his government allows the adoptee to enter his
country as his adopted child in the absence of the
certification required
472

70)) of Republic Act No. 8552 (sec,

02-6-02-sC).

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473
Social worker to make recontmcndation to
the court

If, after the conduct of the case studies, the worker finds
that there are grounds to deny the petition he shall make the
proper recommendation to the court, fur nishing a copy
thereof to the petitioner (Sec. 13, AM 02.6 02-sC).

SECTION 14 AM 02-6-02-SC. HEARING

Petitioner and the adoptee to personally appearin
coun

Upon satisfactory proof that the order of hearing has

been published and jurisdictional requirements have been
complied with, the court shall proceed to hear the petition.
The petitioner and the adoptee must personally appear
and the former must testify before the presiding judge of
the court on the date set for hearing (Sec. 14, AM 02-6-02.

Court to require proof that the biological

parent has been properly counseled to
prevent making hurried decisions

During the hearing, the court shall:

(1) verify from the social worker and determine
whether the biological parent has been
properly counseled against making hasty
decisions caused by strain or anxiety to give up
the child;
(2) ensure that all measures to strengthen the
family have been exhausted; and

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
(3) ascertain if any prolonged stay of the child in
his own home will be inimical to his welfare
and interest (Sec. 14, AM 02-6-02-SC).

SECTION 15 AM 02-6-02-SC. SUPERVISED TRIAL

CUSTODY

Trial custody and vesting of temporary

parental authority
prior to the issuance of the decree of adoption, the
court shall give the adopter a trial custody of the
adoptee for a period of at least six (6) months within
which the adopter and the adoptee are expected to
adjust psychologically and emotionally to each other
and establish a bonding relationship.
The trial custody shall be monitored and supervised by
the social worker of the court, the DSWD, or the social
service of the local government unit (LGU) or the
childplacement or child-caring agency which submitted
and prepared the case studies. During said period,
temporary parental authority shall be vested in the
adopter (Sec. 15, AM 02-6-02-SC).

Case studies
The petition for adoption shall be set for hearing
only after a licensed social worker of the DSWD, the
social service office of the local government unit
(LGU), or any child-placing or child-caring agency has
made a case study of the adoptee, his/her biological
parent(s), as well as the adopter(s), and has submitted
the report and recOmmendations on the matter to
the court hearing such petition

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475
At the tinw of preparation of the adoptee's
case study the concerned social worker shall
confirm with the Registry the real identity and
registered name of th adoptee. If the billh of the
adoptee was not registered With the Civil Registry,
it shall be the responsibility of the con cerned social
worker to ensure that the adoptee is

The case study on the adoptee shall establish that he/she

is legally available for adoption and that the docu. ments to
support this fact are valid and authentic, Further the case
study of the adopter(s) shall ascertain his/her genuine
intentions and that the adoption is in the best in. terest of the
child.
The DSWD shall intervene on behalf of the adoptee if
it finds, after the conduct of the case studies, that the
peti. tion should be denied. The case studies and other
relevant documents and records pertaining to the
adoptee and the adoption shall be preserved by the
DSWD (Sec. 11, RA 8552).

Reduction of trial custody period or exemption of the parties

The court may, motu proprio or upon motion of any

party, reduce the period or exempt the parties if it finds
that the same shall be for the best interests of the
adoptee, stating the reasons therefor (Sec. 15, AM 02-
602-SC).

Alien adopter required to complete the

6-month trial custody; exceptions

An alien adopter, however, must complete 'the

month trial custody except the following:

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
02.6-02-sc

(a) a former Filipino the citizen fourth (4th) who degree

seeks to of adopt consan-a
relative within

(b) one who seeks to adopt the legitimate child of his

(c) one who is married to a Filipino citizen and seeks to

adopt jointly with his or her spouse the latter's
relative within the fourth (4th) degree of
consanguinity or affinity (Sec. 15, AM 02-6-02-SC).

pre-adoption placement authority

A pre-adoption placement authority is a written instrument
issued by the DSWD attesting that the child subject of
adoption is ready for supervised trial custody.
If the child is below seven (7) years of age and is
placed with the prospective adopter through a
preadoption placement authority issued by the DSWD,
the court shall order that the prospective adopter shall
enjoy all the benefits to which the biological parent is
entitled from the date the adoptee is placed with him
(Sec. 15, AM 02-6-02-SC).

Social worker to submit report to court on

results of trial custody

The social worker shall submit to the court a report

on the result of the trial custody within two (2) weeks
after its termination (Sec. 15, AM 02-6-02-SC).

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 477
SECTION 16 AM 02-6-02-SC. DECREE OF ADOPTION
Decree of adoption; when issued
A decree of adoption shall be issued if:

476

(1) the supervised trial custody is satisfactory

to parties; and

(2) the court is convinced from the trial

custody port and the evidence adduced
that the adoption shall redound to the
best interests of the adoptee (Sec. 16, AM
02-6-02-sC).

Effectivity of decree

A decree of adoption shall take effect as of the date

the original petition was filed even if the petitioners die
before its issuance (Sec. 16, AM 02-6-02-SC).

Contents of the decree

The decree shall:

A. state the name by which the child is to be

known and registered;

B. order:
(1) the Clerk of Court to issue to the adopter a
certificate of finality upon expiration of the
15-day reglementary period within which to
appeal;

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
(2) the adopter to submit a certified true copy of
the decree of adoption and the certificate of
finality to the Civil Registrar where the child
was originally registered within thirty (30)
days from receipt of the certificate of finality.
In case of change of name, the decree shall be
submitted to the Civil Registrar where the
court issuing the same is situated.
(3) the Civil Registrar of the place where the
adoptee was registered:
(a) to annotate on the adoptee's original
certifi. cate of birth the decree of adoption
within thirty (30) days from receipt of the
certificate

(b) to issue a certificate of birth which shall not

bear any notation that it is a new or amended
certificate and which shall show, among others,
the following:
(i) registry number;
(ii) date of registration;
(iii) name of the child;
(iv) sex of the child;
(v) date of birth of the child;
(vi) place of birth of the child;
(vii) name and citizenship of the adoptive
mother and father; and
(viii)the date and place of marriage of the
adoptive mother and father, when applicable;

(c) to seal the original certificate of birth in the

civil registry records which can be opened

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 479
only upon order of the court which issued
the decree of adoption; and
(d) to submit to the court issuing the decree of
adoption proof of compliance with all the
foregoing within thirty (30) days from receipt
of the decree (Sec, 16, AM 02-6-02-SC).
Where adoptee is a foundling
If the adoptee is a foundling, the court shall order the
Civil Registrar where the foundling was registered to anno-

478

tate the decree of adoption on the foundling certificate

and a new birth certificate shall be ordered prepared by
the Civil Registrar in accordance with the decree (Sec. 16,
02-6-02-sC).

Effects of adoption

In general, the effects of adoption are as follows:

(a) Transfer of parental authority;
(b) Legitimacy;
(c) Successional rights; and
(d) Issuance of new certificate and first name and
surname of adoptee.

Transfer of parental authority.

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
Except in cases where the biological parent is the
spouse of the adopter, the parental authority of the
biological parents shall terminate and the same shall be
vested in the adopters (Sec. 16, RA 8552).
Legitimacy

The adoptee shall be considered the legitimate

son/daughter of the adopter(s) for all intents and purposes
and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to them
without discrimination of any kind (Sec. 17, RA 8552).

Successional rights

In legal and intestate succession, the adopter(s) and

the adoptee shall have reciprocal rights of succession
without distinction from legitimate filiation (Sec. 18, RA
02.6-02.SC

However, if the adoptee and his/her biological par-

ent(s) govern had left (Sec. a will, 18, the RA law

8552).on testamentary succession

Article 18(3) of the Family Code (EO 209, as

amended) and Section 18, Article V of RA 8552 provide
that the adoptee remains an intestate heir of his/her
biological parent (Obiter Dictum in In the Matter of
Adoption of Stephanie Naty Astorga Garcia, GR 148311,
Mar. 31, 2005 454 SCRA 541).

Issuance of new certificate and first

name and surname of adoptee

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 481
The adoption decree shall state the name by
which the child is to be known (Sec. 13, RA 8552).

An amended certificate of birth shall be issued

by the Civil Registry attesting to the fact that the
adoptee is the child of the adopter(s) by being
registered with his/her surname (Sec. 14, RA
8552).
The original certificate of birth shall be
stamped "cancelled" with the annotation of the
issuance of an amended birth certificate in its
place and shall be sealed in the civil registry
records. The new birth certificate to be issued to
the adoptee shall not bear any notation that it is
an amended issue (Sec. 14, RA 8552).
SECTION 17 AM 02-6-02-SC. BOOK OF
ADOPTIONS
Clerk of Court to keep a book of adoptions;
contents
The Clerk of Court shall keep a book of
adoptions
showing:

(1) the date of issuance of the decree in each

case;
ExpostT10h

480

(2) conipliance of AM by 02-6-02-SC the Civil

Registrar which provides:with Section

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
"The decree of adoption shall order the Civil Registrar of
the place where the adoptee was regis tered:
a. to annotate on the adoptee's original certificate
of birth the decree of adoption within thirty (30)
days from receipt of the certificate of finality;
b. to issue a certificate of birth which shall not bear any
notation that it is a new or amended certificate and
which shall show, among others, the following:
registry number, date of registration name of child,
sex, date of birth, place of birth name and citizenship
of adoptive mother and father, and the date and
place of their marriage, when applicable;
c. to seal the original certificate of birth in the civil
registry records which can be opened only upon
order of the court which issued the decree of
adoption; and

d. to submit to the court issuing the decree of

adoption proof of compliance with all the
foregoing within thirty days from receipt of the
decree."
(3) all incidents arising after the issuance of the decree (Sec.
17, AM 02-6-02-SC).
SECTION 18 AM 02-6-02-SC. CONFIDENTIAL
NATURE OF PROCEEDINGS AND RECORDS
Confidentiality of adoption records, documents and proceedings

All records, books, and papers relating to the adoption

cases in the files of the court, the DSWD or any Other agency or
institution participating in the adoption proceed'
O?.602.SC

be kept strictly confidential and the court may

order its release under the following conditions only:

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 483
(a) the disclosure of the information to a third person
is necessary for purposes connected with or aris-

(b) the disclosure will be for the best interest of the

(c) the court may restrict the purposes for which it may
be used (Sec. 15, RA 8552).

All hearings and records in adoption

cases to be treated as strictly
confidential; exception

After compliance with the jurisdictional

requirements, all hearings in adoption cases shall be
confidential and shall not be open to the public. All
records, books and papers relating to the adoption
cases in the files of the court, the DSWD or any other
agency or institution participating in the adoption
proceedings shall be kept strictly confidential.
If the court finds that the disclosure of the
information to a third person is necessary for security
reasons or for purposes connected with or arising out
of the adoption and will be for the best interests of
the adoptee, the court may, upon proper motion,
order the necessary information to be released,
restricting the purposes for which it may be used (Sec.
18, AM 02-6-02-SC).
SECTION 19 AM 02-6-02-SC. RESCISSION OF
ADOPTION OF THE ADOPTEE
Petition for rescission of
adoption; by whom filed

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484
The petition for rescission of adoption
shall be verified and filed:
(1) by the adoptee who is over eighteen (18) years of
age; or

(2) by the adoptee with the assistance of the DSWD if

he is a minor; or
(3) by the adoptee's guardian or counsel, if he is
over eighteen (18) years of age but is
incapacitated (Sec. 19, AM 02-6-02-SC).

Grounds for rescission of adoption

The adoption may be rescinded based on any of the
following grounds committed by the adopter:
(a) repeated physical and verbal maltreatment by
the adopter despite having undergone
counseling;
(b) attempt on the life of the adoptee;
(c) sexual assault or violence; or
(d) abandonment or failure to comply with parental
obligations (Sec. 19, AM 02-6-02-SC).
Adoption, being in the best interests of the child,
shall not be subject to rescission by the adopter.
However, the adopter may disinherit the adoptee for
causes provided in Article 919 of the Civil Code, to wit:
"Article 919. The following shall be sufficient causes
for the disinheritance of children and descendants,
legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty Of
an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;

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 485
(2) When a child or descendant has accused the testator
of a crime for which the law prescribes imprisonment
02-602-SC

for six years or more, if the accusation has been

When a child or descendant has been convicted of

adultery or concubinage with the spouse of the testa-

(4) When a child or descendant by fraud, violence,

intimidation, or undue influence causes the
testator to make a will or to change one already
made;
(5) A refusal without justifiable cause to support the

parents or ascendant who disinherit such child or

de(6) Maltreatment of the testator by word or

deed, by the

(7) When a child or descendant leads a dishonorable or

disgraceful life; and
(8) Conviction of a crime which carries with it the
penalty of civil interdiction."

Effects of rescission without prejudice

to prosecution of criminal acts
The effects of rescission of adoption shall be
without prejudice to the penalties imposable under
the Revised Penal Code if the criminal acts are
properly proven (Sec. 20, RA 8552).

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486
SECTION 20 AM 02-6-02-SC. VENUE
The petition shall be filed with the Family Court (RTC)
Of the city or province where the adoptee resides,

SECTION 21 AM 02-6-02-SC. TIME WITHIN WHICH TO

FILE PETITION
The adoptee, if incapacitated, must file the petition
rescission or revocation of adoption:
(1) within five (5) years after he reachesthe age Of
majority; or

(2) if he was incompetent at the time of the adoption

within five (5) years after recovery from such
competency.

SECTION 22 AM 02-6-02-SC. ORDER TO ANSWER

The court shall issue an order requiring the adverse

party to answer the petition within fifteen (15) days from
receipt of a copy thereof. The order and copy of the
peti. tion shall be served on the adverse party in such a
manner as the court may direct.

SECTION 23 AM 02-6-02-SC. JUDGMENT

If the court finds that the allegations of the petition are

true, it shall render judgment ordering the rescission
of adoption, with or without costs, as justice requires.
If the adoptee is still a minor or incapacitated, the court
shall order the restoration of the parental authority of the
biological parent of the adoptee, if known, or the legal custody
of the DSWD and declare the extinguishment of the reciprocal

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 487
rights and obligations of the adopter and the adoptee to each
other.
The court shall further declare that successional rights
shall revert to its status prior to adoption, as of the date Of
judgment of judicial rescission. Vested rights
acquired prior to judicial rescission shall be
respected.
It shall also order the adoptee to use the name stated
in his original birth or foundling certificate.
02.602.SC

Finally, the court shall order the Civil Registrar where

adoption decree was registered to cancel the new birth
certificate of the adoptee and reinstate his original birth
or foundling certificate.
SECTION 24 AM 02-6-02-SC. SERVICE OF JUDGMENT
A certified true copy of the judgment together with a
certificate of finality issued by the Branch Clerk of the
court which rendered the decision in accordance with
section 23 of AM 02-6-02-SC shall be served by the
petitioner upon the Civil Registrar concerned within thirty
(30) days from receipt of the certificate of finality. The
Civil Registrar shall forthwith enter the rescission decree
in the register and submit proof of compliance to the
court issuing the decree and the Clerk of Court within
thirty (30) days from. ieceipt of the decree.
The Clerk of Court shall enter the compliance in
accordance with Section 17 of AM 02-6-02-SC.
SECTION 25, AM 02-6-02-SC. REPEAL

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
488
This Rule (AM 02-6-02-SC) superseded Rule 99 on
Adoption and Rule 100 on Rescission and Revocation of
Adoption of the Rules of Court.

B. INTER-COUNTRY ADOPTION
SECTION 26 AM 02-6-02-SC. APPLICABILITY

The following sections apply to inter-country

adoption Of Filipino children by foreign nationals and
Filipino citizens permanently residing abroad.

SECTION 27 AM 02-6-02-SC. OBJECTIVES

The State shall:
(a) consider inter-country adoption as an alternative
means of child care, if the child cannot be placed
in a foster or an adoptive family or cannot,frl any
suitable manner, be cared for in the Philippines.
(b) ensure that the child subject of inter-country
adoption enjoys the same protection accorded to
children in domestic adoption; and
(c) take all measures to ensure that the placement
arising therefrom does not result in improper
nancial gain for those involved.

SECTION 28 AM 02-6-02-SC. WHERE TO FILE PETI.

TION

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
(RTC) having jurisdiction over the place where the child
resides or may be found.

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 489
It may be filed directly with the Inter-Country Adoption
Board (ICAB).

SECTION 29, AM 02-6-02-SC. WHO MAY BE ADOPTED

Only a child legally available for domestic adoption
may be the subject of inter-country adoption.

SECTION 30 AM 02-6-02-SC. CONTENTS OF PETITION

02.602-sc
The petitioner must allege:
his age and the age of the child to be
adopted, showing that he is at least twenty-
seven (27) years of age and at least sixteen
(16) years older than the child to be adopted at
the time of application, unless the petitioner is
the parent by nature of the child to be adopted or
the spouse of such parent, in which case the age
difference does not apply;
(2) if married, the name of the spouse who must be
joined as co-petitioner except when the adoptee
is a legitimate child of his spouse;
(3) that he has the capacity to act and assume all
rights and responsibilities of parental authority
under his national laws, and has undergone the
appropriate counseling from an accredited
counselor in his country;
(4) that he has not been convicted of a crime involving
moral turpitude;
(5) that he is eligible to adopt under his national law;
(6) that he can provide the proper care and support and
instill the necessary moral values and example to all
his children, including the child to be adopted;

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
490
(7) that he agrees to uphold the basic rights of the
child, as embodied under Philippine laws and
the U.N. Convention on the Rights of the Child,
and to abide by the rules and regulations
issued to implement the provisions of Republic
Act No. 8043;
(8) that he comes from a country with which the
Philippines has diplomatic relations and whose
government maintains a similarly authorized and
accredited agency and that adoption of a Filipino
child is allowed under his national laws; and
(9) that he possesses all the qualifications and none of
the disqualifications provided in this Rule, in Republic
Act No. 8043 and in all other applicable Philippine
laws.

SECTION 31 AM 02-6-02-SC. ANNEXES

The petition for adoption shall contain the following
annexes written and officially translated in English:
(a) Birth certificate of petitioner;
(b) Marriage contract, if married, and, if applicable the
divorce decree, or judgment dissolving marriage;
(c) Sworn statement of consent of petitioner's logical
or adopted children above ten (10) of age;

(d) Physical, medical and psychological evaluation of

the petitioner certified by a duly licensed cian and
psychologist;
(e) Income tax returns or any authentic document
showing the current financial capability of titioner;

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 491
(f) Police clearance of petitioner issued within six (6)
months before the filing of the petitioner;
(g) Character reference from the local church/ minister,
the petitioner's employer and a member of the
immediate community who have known the
petitioner for at least five (5) years; and
02,602-sc

Full body postcard-size pictures of the petitioner

and his immediate family taken at least six (6)
months before the filing of the petition

32 AM 02-6-02-SC. DUTY OF
COURT
After finding that the petition is sufficient in form and
substance and a proper case for inter-country adoption, the
court shall immediately transmit the petition to the lnter-
country Adoption Board (ICAB) for appropriate action.

SECTION 33 AM 02-6-02-SC. EFFECTIVITY

Effectivity of the Rule
This Rule took effect on August 22, 2002
following its

publication in a newspaper of general circulation.

B. INTER-COUNTRY ADOPTION (RA 8043)
Inter-Country Adoption defined
Inter-country adoption refers to the 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

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
492
undertaken, and the decree of adoption is issued
outside the Philippines (Sec. RA 8043).

When allowed
Inter-country adoption is allowed when:

(1) the same shall prove beneficial to the child's

best interests;
(2) the same shall serve and protect his/her
fundamental rights (Sec. 2, RA 8043); and
(3) all the requirements and standards set forth
der RA 8043 are complied with.

Where to file application for inter-country

adoption
An application to adopt a Filipino child shall be filed either
with:
(a) the Regional Trial Court (RTC) having
jurisdiction over the child; or
(b) the Inter-Country Adoption Board (ICAB),
through an intermediate agency, whether
governmental or an authorized and accredited
agency, in the country of the prospective
adoptive parents.
Such application shall be in accordance with the re.
quirements as set forth in the implementing rules and
regulations of Republic Act No. 8043 (Sec. 10, RA 8043).

Inter-Country Adoption Board (ICAB)

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 493
The Inter-Country Adoption Board (ICAB) is the body
created under Republic Act No. 8043 to act as the central
authority in matters relating to inter-country adoption.
It acts as the policy-making body for purposes of
care rying out the provisions of RA 8043, in consultation
and coordination with:
(1) the Department of Social Welfare and
Development (DSWD);
(2) the different child-care and placement agencies;
(3) the adoptive agencies; and

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
494

(4) the non-governmental organizations (NGOS) engaged in

child-care and placement activities

composition of the Board

The ICAB shall be composed of the following:
(a) The Secretary of the DSWD as ex officio Chair-

(b) Six (6) other members to be appointed by the president

for a non-renewable term of six (6) years.
Provided, That there shall be appointed:
(I) one (1) psychiatrist or psychologist;
(2) two (2) lawyers who shall have at least the qualifications
of a regional trial court judge;
(3) one (1) registered social worker; and
(4) two (2) representatives from non-governmental organizations
engaged in child-caring and placement activities (Sec. 5, RA
8043).

Inter-Country Adoption as the last resort

The ICAB shall ensure that all possibilities for adoption of the
child under the Family Code (Executive Order No. 209, as
amended) have been exhausted and that inter-country adoption
is in the best interest of the child.
Towards this end, the Board shall set up the guidelines to
ensure that steps will be taken to place the child in the
Philippines before the child is placed for inter-country
adoption: Provided, however, That the maximum number
that may be allowed for foreign adoption shall not exceed six

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 02-602SC
495

hundred (600) a year for the first five (5) years (sec. ? RA
8043).

"Best interests of the minor" standard defined

The best interests of the minor refer to the totality of the

circumstances and conditions as are most congenial to the survival,
protection and feelings of security of the mi. nor encouraging to his
physical, psychological and tional development.
It also means the least detrimental available alterna. tive for
safeguarding the growth and development of the minor (Sec. 14,
AM 03-04-04-SC. Apr. 22, 2003 - Rule Custody of Minors and Writ
of Habeas Corpus in Relation to Custody of Minors)

Best interests of the child a primary consideration in all

actions concerning children

The Convention on the Rights of the Child provides that "[i]n

all actions concerning children, whether under. taken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child
shall be a primary consideration" 61 of Article 31 of the
Convention on the Rights of the Child ICRC]).

Welfare of the minor a paramount consideration in

child custody cases
The principle of "best interest of the child" pervades Philippine
cases involving adoption, guardianship, support, personal status,
minors in conflict with the law and child custody. In these cases, it
has long been recognized that in choosing the parent to whom
custody is given, the welfare of the minors should always be the
paramount

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
496

sideration (Tonog v. CA, GR 122906, Feb. 7, 2002, 427

plli/. f).

Factors to be considered in determining the capacity of

parents to attend to the welfare of their children courts
are mandated to take into account all relevant
circumstances that would have a bearing on the
children's well-being and development.
Aside from the material resources and the moral and
social situations of each parent, other factors may also be
considered to ascertain which one has the capability to
attend to the physical, educational, social and moral welfare
of the children (Attadi-Bondagjy v. Bondagjy, GR 140817,
Dec. 7, 2001, 423 Phil. 127). Among these factors are:
(I) the previous care and devotion shown by each of the
parents;
(2) their religious background;
(3) their moral uprightness;
(4) their home environment and time availability; and
(5) the children's emotional and educational needs
(Pablo-Gua/berto v. Gualberto, GR 154994, June
28, 2005, 461 SCRA 450).

Who may be adopted

Only a child legally available for domestic adoption may be
the subject of inter-country adoption (Sec. 29, AM 02-6-02-SC).
Documents to be submitted to ICAB

In order that a child may be considered for placeme the

following docunlents must be submitted to the ICAO

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 02-602SC
497

(a) Child study;

(b) Birth certificate/foundling certificate;
(c) Deed of voluntary commitment/decree of aban
donment/death certificate of parents;
(d) Medical evaluation /history;

(e) Psychological evaluation, as necessary; and

(f) Recent photo of the child (Sec. 8, RA 8043).
Who may adopt
An alien or a Filipino citizen permanently residing abroad
may file an application for inter-country adoption of a Filipino
child if he/she:
(1) is at least twenty-seven (27) years of age and at least
sixteen (16) years older than the child to be
adopted, at the time of application unless the adopter
is the parent by nature of the child to be adopted or the
spouse of such parent:
(2) if married, his/her spouse must jointly file for the adoption;
(3) has the capacity to act and assume all rights and
responsibilities of parental authority under his national
laws, and has undergone the appropriate counseling
from an accredited counselor in his/her country;
(4) has not been convicted of a crime involving moral
turpitude;

(5) is eligible to adopt under his/her national law;

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
498

(6) is in a position to provide the proper care and support

and to give the necessary moral values and example to
all his children, including the child

(7) agrees to uphold the basic rights of the child as

embodied under Philippine laws, the U.N. Convention
on the Rights of the Child, and to abide by the rules and
regulations issued to implement the provisions of this
Act;
(8) comes from a country with whom the Philippines has
diplomatic relations and whose government maintains a
similarly authorized and accredited agency and that
adoption is allowed under his/her national laws; and
(9) possesses all the qualifications and none of the
disqualifications provided herein and in other
applicable Philippine laws (Sec. 9, RA 8043).

Where to file petition

A verified petition to adopt a Filipino child may be filed by a
foreign national or Filipino citizen permanently residing abroad:
(a) with the Family Court (RTC) having jurisdiction over the
place where the child resides or may be found; or
(b) directly with the Inter-Country Adoption Board (ICAB)
(Sec. 28, AM 02-6-02-SC).
Contents of petition

The petitioner must allege:

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02-602SC
499
ØP6

his age and that the he age is at of least the child twenty-
sevento be
years of age and at least sixteen (16) years
( than the child to be adopted at the time of cation, unless the petitioner is
the parent bypt?lal• ture of the child to be adopted or the spouse such
parent, in which case the age difference does not apply;

(2) if married, the name of the spouse who must be joined as co-petitioner
except when the adoptee is a legitimate child of his spouse;
(3) that he has the capacity to act and assume all rights and responsibilities
of parental authority under his national laws, and has undergone the
appropriate counseling from an accredited counselor in his country;
(4) that he has not been convicted of a crime involving moral turpitude;
(5) that he is eligible to adopt under his national
(6) that he can provide the proper care and and instill the
necessary moral values and example to all his children,
including the child to be adopted;
(7) that he agrees to uphold the basic rights of the child, as
embodied under Philippine laws and the U. N. Convention
on the Rights of the Child, and to abide by the rules and
regulations issued to implement the provisions of Republic
Act NO. 8043;
(8) that he comes from a country with which the Phil"
ippines has diplomatic relations and whose
government maintains a similarly authorized and ac-
credited agency and that adoption of a Filipino child is
allowed under his national laws; and
(9) that he possesses all the qualifications and none of the
disqualifications provided in the Rule on Adoption, in

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE

Republic Act No, 8043 and in all other applicable Philippine

laws (Sec. 30, AM 026-02-SC).

Annexes to the petition

The petition for adoption shall contain the following annexes
written and officially translated in English:
(a) Birth certificate of petitioner;

(b) Marriage contract, if married, and, if applicable, the divorce

decree, or judgment dissolving the marriage;
(c) Sworn statement of consent of petitioner's biological or
adopted children above ten (10) years of age;
(d) Physical, medical and psychological evaluation of the
petitioner certified by a duly licensed physician and
psychologist;
(e) Income tax returns or any authentic document showing
the current financial capability of the petitioner;
(f) Police clearance of petitioner issued within six (6) months
before the filing of the petitioner;
(g) Character reference from the local church/ minister, the
petitioner's employer and a member Of the immediate
community who have known the petitioner for at least
five (5) years;
498

(h) Full body postcard-size pictures of the petitioner and his

immediate family taken at least six (6) nwnths before the
filing of the petition (Sec AM 02-6-02-sC).

Duty of the coun

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 02-602SC
501
After finding that the petition is sufficient in form and
substance and a proper case for inter-country adoption the court
shall immediately transmit the petition to the ter-Country
Adoption Board for appropriate action (Sec 32, AM 02-6-02-sC).

Family selection or matching

No child shall be matched to a foreign adoptive family unless it
is satisfactorily shown that the child cannot be adopted locally.
The clearance, as issued by the ICAB, with the copy of the
minutes of the meetings, shall form part of the re. cords of the child
to be adopted. When the Board is ready to transmit the Placement
Authority to the authorized and accredited inter-country adoption
agency and all the travel documents of the child are ready, the
adoptive parents or any one of them shall personally fetch the child
in the Philippines (Sec. 11, RA 8043).

Pre-adoptive placement costs

The applicant(s) shall bear the following costs incidental to

the placement of the child;
(1) The cost of bringing the child from the Philippines to
the residence of the applicant(s) abroad, ina cluding
all travel expenses within the Philippines and abroad;
and
(2) The cost of passport, visa, medical examination and
psychological evaluation required and other related
expenses (Sec. 12, RA 8043).

supervision of trial custody

The governmental agency or the authorized and accredited
agency in the country of the adoptive parents which filed the
application for inter-country adoption shall be responsible for

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE

the trial custody and the care of the child. It shall also provide
family counseling and other related services.
The trial custody shall be for a period of six (6)
months from the time of placement. Only after the lapse of the
period of trial custody shall a decree of adoption be issued in
the said country a copy of which shall be sent to the ICAB to
form part of the records of the child.
During the trial custody, the adopting parent(s) shall submit to
the governmental agency or the authorized and accredited agency,
which shall in turn transmit a copy to the ICAB, a progress report of
the child's adjustment. The progress report shall be taken into
consideration in deciding whether or not to issue the decree of
adoption.

The Department of Foreign Affairs (DFA) shall set up a

system by which Filipino children sent abroad for trial custody
are monitored and checked as reported by the authorized and
accredited inter-country adoption agency as well as the
repatriation to the Philippines of a Filipino child whose adoption
has not been approved (Sec. 14, RA 8043).

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
498
EXPOSITION

(h) Full body postcard-size pictures of the petitioner and his

immediate family taken at least six (6) months before
the filing of the petition (Sec, 31 AM 02-6-02-sC).

Duty of the court

After finding that the petition is sufficient in form and substance
and a proper case for inter-country adoption, the court shall
immediately transmit the petition to the Inter-Country Adoption
Board for appropriate action (Sec. 32, AM 02-6-02-SC).

Family selection or matching

No child shall be matched to a foreign adoptive family unless
it is satisfactorily shown that the child cannot be adopted locally.
The clearance, as issued by the ICAB, with the copy of the
minutes of the meetings, shall form part of the records of the
child to be adopted. When the Board is ready to transmit the
Placement Authority to the authorized and accredited inter-
country adoption agency and all the travel documents of the child
are ready, the adoptive parents or any one of them shall
personally fetch the child in the Philippines (Sec. 11, RA 8043).
Pre-adoptive placement costs

The applicant(s) shall bear the following costs incidental to

the placement of the child;
(1) The cost of bringing the child from the Philippines to the
residence of the applicant(s) abroad, including all travel
expenses within the Philippines and abroad; and
02-6-02-sc

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 (2) The cost of Passport, visa, medical examination
and psychological evaluation required and other
related expenses (sec. 12, RA 8048).

Supervision of trial custody

The governmental agency or the authorized and accredited
agency in the country of the adoptive parents which filed the
application for inter-country adoption shall be responsible for the
trial custody and the care of the child. It shall also provide family
counseling and other re-

The trial custody shall be for a period of

six (6) months from the time of placement.
Only after the lapse of the period of trial custody shall a
decree of adoption be issued in the said country a copy of
which shall be sent to the ICAB to form part of the records
of the child.
During the trial custody, the adopting parent(s) shall submit to the
governmental agency or the authorized and accredited agency, which
shall in turn transmit a copy to the ICAB, a progress report of the child's
adjustment. The progress report shall be taken into consideration in
deciding whether or not to issue the decree of adoption.
The Department of Foreign Affairs (DFA) shall set up a system
by which Filipino children sent abroad for trial custody are
monitored and checked as reported by the authorized and
accredited inter-country adoption agency as well as the repatriation
to the Philippines of a Filipino child whose adoption has not been
approved (Sec, 14, RA 8043).
SPECIAL PROCEEDINGS

RULE 100. RESCISSION AND REVOCATION

OF ADOPTION

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 500
REPEALED BY AM 02-6-02-SC DATED AUG. 22,
2002 OR THE RULE ON ADOPTION
(DOMESTIC AND INTER-COUNTRY)

RULE 101
PROCEEDINGS FOR HOSPITALIZATION
OF INSANE PERSONS

Section 1. Venue, Petition for commitment.—A

petition for the commitment of a person to a hospital or
other place for the insane may be filed with the Court of
First Instance (now Regional Trial Court) of the province
where the person alleged to be insane is found. The
petition shall be filed by the Director of Health in all cases
where, in his opinion, such commitment is for the public
welfare, or for the welfare of said person who, in his
judgment, is insane and such person or the one having
charge of him is opposed to his being taken to a hospital
or other place for the insane.

Section 2. Order for hearing.—lf the petition filed is

sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date for the
hearing thereof, and copy of such order shall be served on
the person alleged to be insane, and to the one having
charge him, or on such of his relatives residing in the
province or city as the judge may deem proper. The court
shall furthermore order the sheriff to produce the alleged
insane person, if possible, on the date of the hearing.

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 section 3. Hearing and judgment.—Upon satisfacpry
proof, in open court on the date fixed in the order, that the
commitment applied for is for the public welfare or for the RULE
welfare of the insane person, and that his relatives are
unable for any reason to take proper custody and care of
him, the court shall order his commitment to such hospital
or other place for the insane as may be recommended by
the Director of Health. The court shall make proper
provisions for the custody of property or money belonging
to the insane until a guardian be properly appointed.

Section 4. Discharge of insane.—When, in the

opinion of the Director of Health, the person ordered to
be committed to a hospital or other place for the insane
is temporarily or permanently cured, or may be
released without danger he may file the proper petition
with the court of First Instance (now Regional Trial
Court) which ordered the commitment.
Section 5. Assistance of fiscal in the proceeding.— It
shall be the duty of the provincial fiscal or in the City of
Manila the fiscal of the city, to prepare the petition for
the Director of Health and represent him in court in all
proceedin s arisin under the rovisions of this rule.
101. PROCEEDINGS FOR HOSPITALIZATION OF
INSANE PERSONS

SECTION 1 RULE 101. VENUE PETITION FOR COMMITMENT

Venue

A petition for the commitment of a person to a hospital

Or other place for the insane may be filed with the Re-
SPECIAL PROCEEDINGS

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 502
gional Trial court of the province where the person alleged to be
insane is found (Sec. 1, Rule 101, ROC).
Who shall file the petition; grounds
The petition shall be filed by the Director of Health in all
cases where, in his opinion, such commitment is:
(a) for the public welfare; or
(b) for the welfare of said person who, in his judgment, is
insane and such person or the one having charge of
him is opposed to his being taken to a hospital or other
place for the insane (Sec, 1, Rule 101, ROC).

SECTION 2 RULE 101. ORDER FOR HEARING

Court to fix date of hearing

If the petition filed is sufficient in form and substance, the

court shall, by an order reciting the purpose of the peti tion, fix
a date for the hearing thereof and copy of such order shall be
served:
(1) on the person alleged to be insane and to the one having
charge him; or
(2) on such of his relatives residing in the province or city
as the judge may deem proper.
The court shall also order the sheriff to produce the
alleged insane person, if possible, on the date of the
hearing (Sec. 2, Rule 101, ROC).
SECTION 3 RULE 101. HEARING AND JUDGMENT

SPECIAL 502

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 gional Trial court of the province where the person to be
insane is found (Sec. 1, Rule 101, ROC).

Who shall file the petition; grounds

The petition shall be filed by the Director of Health in all cases
where, in his opinion, such commitment is:
(a) for the public welfare; or
(b) for the welfare of said person who, in his judg. ment, is
insane and such person or the one haw ing charge of him
is opposed to his being taken to a hospital or other place
for the insane (Sec, 1 Rule 101, ROC).

SECTION 2 RULE 101. ORDER FOR HEARING

Coutt to fix date of hearing

If the petition filed is sufficient in form and substance, the

court shall, by an order reciting the purpose of the peti. tion, fix
a date for the hearing thereof and copy of such order shall be
served:
(1) on the person alleged to be insane and to the one having
charge him; or
(2) on such of his relatives residing in the province or city as
the judge may deem proper.
The court shall also order the sheriff to produce the alleged
insane person, if possible, on the date of the hearing (Sec. 2, Rule
101, ROC).

SECTION 3 RULE 101. HEARING AND JUDGMENT

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 503
101

court to order commitment of insane to hospital

The court shall order the commitment of the insane
person to such hospital or other place for the insane as may
be recommended by the Director of Health upon
satisfactory proof during the hearing:
(1) that the commitment applied for is for the public welfare
or for the welfare of the insane person; and
(2) that his relatives are unable for any reason to take
proper custody and care of him
The court shall make proper provisions for the custody of
property or money belonging to the insane until a guardian is
properly appointed (Sec. 3, Rule 101, ROC). SECTION 4, RULE
101. DISCHARGE OF INSANE

Petition for release of insane

The Director of Health may file the proper petition with the
Regional Trial Court which ordered the commitment when, in
his opinion, the person ordered to be committed to a hospital
or other place for the insane:
(a) is temporarily or permanently cured; or
(b) may be released without danger (Sec. 4, Rule 101,
ROC).
SECTION 5 RULE 101. ASSISTANCE OF FISCAL IN
THE PROCEEDING

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 504 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION

Prosecutor to prepare petition and represent the Director

of Health in court
The provincial or city prosecutor concerned shall have the duty
of preparing the petition for the Director of Health and of representing
him in court in all proceedings arising under the provisions of Rule
101 of the Rules of Court (Sec. 5, Rule 101, ROC).

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 505
RULE 102

extends.
— lawj the
RULE 102 writ of illegal
HABEAS CORPUS conis
deprived of
section 1. To what habeas corpus Except any person is as otherwise
expressly provided by of habeas corpus shall extend to all
cases finement or detention by which any person his
liberty, or by which the rightful custody of writ.—The withheld from the
person entitled thereto. writ Supreme
Court, authorized
Section 2. Who may grant the of habeas by law, anywhere
corpus may be granted by the or any in the before the
member thereof in the instances and ifcourt so First
granted it shall be enforceable Philippines,
Instance thereof
and may be made returnable or any member for the also be
thereof, or before a Court of (now Regionalgranted
Trial Court), or any judge hearing andTrial Court),
decision on the merits. It may by a Court or of time, and
First Instance (now Regional a judge returnhis
thereof, on any day and at any able before judicial
himself, enforceable only within district.

Section 3. Requisites of application therefor.—

Application for the writ shall be by petition signed and
fied either by the party for whose relief it is veriintended, or
some person on his behalf, and shall set by
forth:
(a) That the person in whose behalf application
is his
the
made is imprisoned or restrained liberty; on
(b) The officer or name of the personby whom he is so
imprisoned or restrained; or, ifboth are unor
person may

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 506 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
known or uncertain, such officer be described b an
assumed a ellation, and the

person who is served with the writ shall be person intended;

deemed the
where he is so imprisoned or re. known;
(c) The place
strained, if commitment or cause of detention if it can be
procured without imefficiency of the remedy; or,
(d) A copy of theif the imrestraint is without any legal aushall
of such
appear.
person,
pairing thewrit not a//owed or discharge authat the person
prisonment oralleged to be rein the custody of an officer under
thority, such
or judge or by virtue of a judgof record, and that
fact
the court or issue the process, render the order,
Section 4. the
When writ shall not be allowed; after the writ is
allowed, the by reason of any informaljudgment,
thorized.—lf it appears strained
or order. Nor shall to authorize the discharge of a
of his liberty is process issued
by a court ment or orderconvicted
of a of an offense in the Philsuffering
imprisonment
court judge had jurisdiction to under lawful
judgment, or make the or if the
jurisdiction appears person shall
writ must be granted and isauthorized to
not be discharged ity or defect
in the process, anything ingrant
this the writ must, presented and it appears
rule be held person charged that the same forthwith, and imof the court
shall issue the court; or in case of emergency,
with or ippines, or of a person
judgment. under his own hand, and may to serve it.
Section 5. When the sued.RULE 102
—A court or judge when a
petition therefor is the writ
ought to issue, grant mediately
thereupon the clerk writ under
the seal of the judge may issue
the writ depute any officer or
person
the

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 507
section 6. To whom writ directed, and what to
quire.—ln case of imprisonment reby or an officer,
command him of
restraint the writ shall be directed to him,
his liberty writ at
and shall to have the body of the person
the time
restrained before the court or judge imprisonment or
designated in the and place therein shall be dito take
specified. In case of restraint by a person
and liberty
not an officer, the writ rected to before an the time
officer, and shall command him have the and person by
body of the person restrained of his the appear before
court or judge designated in the writimprisonment
at
place therein specified, and to summon
the whom he is restrained then and there and writ
to said court or judge to show the causebe desigif his
of the name is
or restraint.
or identified.
Section 7. How prisoner designated the sheriff
served.—The person to be produced shouldor by the
nated in the writ by his name, if known, butcourt or not
known he may be otherwise described Theleaving the writ
may be served in any province by otherand preservIf
proper officer, or by a person deputedthat perin his judge.
Service of the writ shall be made by originalcusother with
the person to whom it is directed ing a copyperson on
which to make return or service. son cannot be
found, or has not the prisoner tody, then the
service shall be made on any having or returned.—
exercising such custody. The the
person writ,
Section 8. How writ executed and Officer before to whom
the writ is directed shall convey so absence or imprisoned
or restrained, and named in the the judge same court, allowing the
writ, or in case of his disability, before some
on sickness or other judge
in-

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 508 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
of the the day specified in the writ, unless, from firmit of the erson
directed to be roduced, such erson

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 509

cannot, without danger, be bought before the court or and the

officer shall make due return of the writ, together with the day
and the cause of the caption and restraint of such person
according to the command thereof.
Section 9. Defect of form.—No writ of habeas corcan be
disobeyed for defect of form, if it sufficiently therefrom in
whose custody or under whose rethe party imprisoned or
restrained is held and the or judge before whom he is to be
bought.
Section 10. Contents of return.—When the person produced
is imprisoned or restrained by an officer, person who makes
the return shall state therein, and cases the person in whose
custody the prisoner is shall state, in writing to the court or
judge before the writ is returnable, plainly and
unequivocably:
Whether he has or has not the party in his custody or power,
or under restraint;
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;
If the party is in his custody or power or is restrained by
him, and is not produced, particularly the nature and
gravity of the sickness or infirmity such party by reason of
which he cannot, withdanger, be bought before the court
or judge; he has had the party in his custody or power, or
under restraint, and has transferred such custody restraint
to another, particularly to whom, at time, for what cause,
and b what authorit
sue,h transfer was made.

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 510 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION

section 11. Return to be signed and sworn

The return or statement shall be signed by the tog
—who
person makes it; and shall also be sworn prisoner
by is
him if the not produced, and in all other cases
return is
unless the made and signed by a sworn publicofficial
officer in his capacity.
party claiming
section 12. Hearing on return.
Section 14.
Adjournments,-— When the writ is returned whe before
conunitted, oneandjudge, at a time the court is in session,
n case he may
prisoner was cifically
forthwith adjourn the into the court, therecourt
to be
charged offense
heard and determined. The or judge before adjourne whom
punishable the writ is returned or must immediately d return, proceed
discharged, or and examine the and such other
to hear for conis matters
strained on aas are so properly submitted sideration, unless
make or for good
punishable, admitted
cause shown the hearing adjourned, in which person of event
to bail be admitted to his must
the court or judge shall such order for the
sum as the court the be be
safekeeping of the person imprisoned
circumstances offense and
charged, the restrained
court as the nature of the case requires.
judge in
If the
imprisoned
where its order of or restrained is not produced because
recourt
judgment; the alleged sickness or infirmity, the court oror judge
satisfied that it is so grave that such person
proceedings, proper cannot
court. If produced
be without danger, before proceeding to hear
recommitted to dispose of the matter. On the hearing the whe court or
shall disregard matters of form and
Section 15. n
technicalities spect to any warrant or order of
peal.—When the custody
commitment of a officer authorized to commit
cause of caption by law. law, the
fied that he is of the
forthwith order Section 13. When the return evidence, liberty and only
his discharge shall
a plea.—lf it appears that the prisoner isby in under a
has been served warrant of commitment in pursuance consid- of return
prisoner. If the shall be considered prima facie evidence cause c.i
does not desire torestraint, but if he is restrained of his any alleged
released.

Section 16.
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 511

private authority, the return shall be ered onl as a lea of the facts
therein set forth, and the the custody must prove such facts.

When porson —If lawfully it appears imprisoned that there. when let
to bail.
lawfully committed, and is plainly and spein the warrant of
commitment with an by death, he shall not be released, bailed. If
he is lawfully imprisoned or recharge of having committed an
offense not he may be recommitted to imprisonment or in the
discretion of the court or judge. If he bail, he shall forthwith file a
bond in such or judge deems reasonable, considering of the
prisoner and the nature of the conditioned for his appearance
before the offense is properly cognizable to abide and the court or
judge shall certify together with the bond, forthwith to the such
bond is not so filed, the prisoner shall confinement.

When prisoner discharged if no apcourt or judge has examined

into the and restraint of the prisoner, and is satisunlawfully
imprisoned or restrained, he shall discharge from confinement, but
such not be effective until a copy of the order on the officer or
person detaining the officer or person detaining the prisoner
appeal, the prisoner shall be forthwith

Penalty for refusing to issue writ, or for same.—A clerk of a court

who refuses to allowance thereof and demand therewhom a writ
is directed, who ne lects or

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 102
512
RULE

refuses to obey or make return of thereturn thereof, or

same according to the command of the prisoner,
thereof, or makes false who, upon within six (6) of
demand made by or on behalf refuses the warrant
to deliver to the person demanding, party aggrieved
hours after the demand therefor, a true recorded in a by
the court or
copy or order of commitment, shall
forfeit to the the sum of one thousand
pesos, to be proper action, and may to be again also
be punished judge as for contempt. imupon a writ
imprisoned for the
Section 17. Person discharged not
or process of a
prisoned.—A person who is set offense;at and a liberty
ofhabeas corpus shall not be again provisions of this same
to be committed
offense unless by the lawful order court having
pretended
jurisdiction of the cause or person who
offense, aids or
knowingly, contrary to the rule, assists the sum of
recommits or imprisons, or causes one or proper action,
imprisoned, for the same offense, notvariation
or in the any
person so set at liberty, or knowingly
punished by the
therein, shall forfeit to the party
aggrieved thousand pesos, to be
recovered in a withstanding any removed
colorable pretense or warrant from of to prison, or
commitment, and may also be courtmatter,
or shall not
another unless to
judge granting the writ as for contempt.
an inferior proper
Section 18. When prisoner may court be or another one
custody to another.—A person committed within the in
custody of an officer, for any criminal epidemic,
be
removed therefrom into the custody ofinsurrecand
by a legal
process, or the prisoner be delivered person signs, or
Officer to carry to jail, or, by order of the
counter-
judge, be removed from one place to
Philippines for trial, or in case of fire tion, or

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 102
other necessity or public calamity; who, after such commitment,
makes si ns an order for such removal contra to this section,

shall forfeit to the party aggrieved the sum of one thou_ sand
pesos, to be recovered in a proper action.
Section 19. Record of writ, fees and COStS.—The proceedings
upon a writ of habeas corpus shall be re. corded by the clerk of
the court, and upon the final disposition of such proceedings the
court or judge shall make such order as to costs as the case
requires. The fees of officers and witnesses shall be included in
the costs taxed but no officer or person shall have the right to
demand payment in advance of any fees to which he is entitled
by virtue of the proceedings. When a person confined under
color of proceedings in a criminal case is discharged, the costs
shall be taxed against the Republic of the Philippines, and paid
out of its Treasury; when a person in custody by virtue or under
color of proceedings in a civil case is discharged, the costs shall be
taxed against him, or against the person who signed the
application for the writ, or both, as the court shall direct.

RULE 102. HABEAS CORPUS

Writ of habeas corpus

The writ of habeas corpus was devised and exists as a
speedy and effectual re-m.e.dY.-..tQ--celiue---per-sons--frQm
unlawful restraint, and as the best and only sufficient defense of
personal freedom. It secures to a prisoner the right to have the
cause of his detention examined and determined by a court of
justice, and to have ascertained if he is held under lawful
authority (Nava v. Gatmaitan, GR L-4855, Oct. 11, 1951, 90 Phil.
172).

Petition for the issuance of a writ of habeas

corpus a special proceeding

513
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 514 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
A petition for the issuance of a writ of habeas corpus
governed by Qjuof the Rules of court, as amended. Habeas
corpus is that of a civil proceeding in character. 'It seeks the
enforcement of civil rights.
Resorting to the writ is not to inquire into the criminal
act of which the complaint is made but into the right of
liberty, notwithstanding the act and the immediate purpose
to be served is relief from illegal restraint. The rule applies
even when instituted to arrest a criminal prosecution and
secure freedom.
When a prisoner petitions for a writ of habeas corpus, he
thereby commences a suit and prosecutes a case in that court
(Cabal/es v. CA, GR 163108, Feb. 23, 2005, 452 SCRA 312).

Nature of the writ; what it is and what it is not

As a special proceeding under Rule 102 of the Rules of Court,
habeas corpus has the following characteristics:

(1) Habeas corpus is not in the nature of a writ of er- ror; or

•ntended as substitute for the trial court's function;

(2) It anno take the pJgge--Qi-appeaJ certiorari or writ o error;

( 3) The writ@) be used to investi ate and consider

questions of error that might be raised relat ing to
procedure or on the merits;
(4) The inquiry in a habeas corpus proceeding is ad
dressed to the question of whether the proceed ings and
the assailed order are, for any reason, null and void.
(5) The writ is @)ordinarily granted where the law
provides for other remedies in the regular course, and in the
absence of exceptional circumstances;
(6) Habeas corpus should ot e granted in advance of-trial;
(7) The orderly course of trial must be pursued and the usual
remedies exhausted before resorting to the writ where
exceptional circumstances are extant;
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 102
(8) Habeas corpus cannot be issued as a writ of ror or as a
means of reviewing errors of law and irregularities not
involving the questions of juris diction occurring during the
course of the trial, subject to the caveat that constitutional
safeguards of human life and liberty must be preserved,
and not destroyed;
(9) Where restraint is under legal process, mere errors and
irregularities, which do not render the proceedings void,
are not grounds for relief by habeas c ecause in such cases,
the restraint is t ille al'
(10) Habeas corpus is a summary remedy;
(11) It is analoqous to a proceedinq in rem when instituted for
the sole purpose of having the person of restraint
presented before the judge in order that the cause of his
detention may be inquired into and his statements final;
(12) The writ of habeas corpus does ot act pon the
prisoner who seeks relief, but upon the person
who holds him in what is alleged to be the
unlawful
515

(3) In habeas corpus proceedings, the only parties

before the court are the petitioner (prisoner)
and the person holding the petitioner in custody;
(14) The only question to be resolved in a habeas corpus
petition is Whether the custodian has au thority to
deprive the petitioner of his liberty; and

(15) The writ may be denied if the petitioner fails to

show facts that he is entitled thereto ex merito

justicias (Caba/les v. CA, GR 163108, Feb. 23, 2005,

452 SCRA 312).

Application of writ

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 516 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
The writ of habeas corpus lies to all cases of illegal
confinement or detention in which individuals are de prived of
liberty.
It was devised as a speedy and effectual remedy to
from unlawful restraint or, more specifically, to
obtain immediate relief for those who may have been illegally
confined or imprisoned without sufficient cause and thus deliver
them from unlawful custody.
It is therefore a writ of inquiry intended to test the cir
cumstances under which a person is detained (Velasco v. CA, GR
118644, July 7, 1995, 245 SCRA 677).

Writ generally cannot be suspended;

exceptions
The privilege of the writ of habeas corpus cannot be
suspended except in cases of:
(a) invasion, when the public safety requires it; or

(b) rebellion, when the public safety requires it (Sec, 15,

Art. 111, 1987 Consti.).

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 514
(5) The writ is no ordinarily granted where the law
provides for other remedies in the regular course and
in the absence of exceptional circumstances.
(6) Habeas corpus should ot e granted in advance
Of-trial;

(7) The orderly course of trial must be pursued and the usual
remedies exhausted before resorting to the writ where
exceptional circumstances are extant;
(8) Habeas corpus cannot be issued as a writ of ror or as a
means of reviewing errors of law and irregularities not
involving the questions of jurisdiction occurring during the
course of the trial, subject to the caveat that constitutional
safeguards of human life and liberty must be preserved,
and not destroyed;
(9) Where restraint is under legal process, mere errors and
irregularities, which do not render the proceedings void,
are not grounds for relief by habeas c ecause in such cases,
the restraint is t ille al'
(10) Habeas corpus is a summary remedy;

(11) It is analoaous to a proceedinq in rem when instituted for

the sole purpose of having the person of restraint
presented before the judge in order that the cause of his
detention may be inquired into and his statements final;
(12) The writ of habeas corpus does t act pon the prisoner who
seeks relief, but upon the person who holds him in what is
alleged to be the unlawful authority;u
RULE

(13) In habeas corpus proceedings, the only patties before

the court are the petitioner (prisoner) and

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515

the person holding the petitioner in custody;

(14) The only question to be resolved in a habeas corpus
petition is whether the custodian has authority to deprive the
petitioner of his liberty; and
(15) The writ may be denied if the petitioner fails to show
facts that he is entitled thereto ex merito justicias (Caballes v. CA,
GR 163108, Feb. 23, 2005, 452 SCRA 312).

Application of writ

The writ of habeas lies to all cases of illegal confinement or

detention in which individuals are de prived of liberty.
It was devised as a speedy and effectual remedy to
from unlawful restraint or, more specifically, to
obtain immediate relief for those who may have been illegally
confined or imprisoned without sufficient cause and thus deliver
them from unlawful custody.
It is therefore a writ of inquiry intended to test the
circumstances under which a person is detained (Velasco v. CA,
GR 118644, July 7, 1995, 245 SCRA 677).

Writ generally cannot be suspended; exceptions

The privilege of the writ of habeas corpus cannot be

suspended except in cases of:

(a) invasion, when the public safety requires it; or

(b) rebellion, when the public safety requires it (Sec, 15,

AK. m, 1987 Consti,).
SECTION 1 RULE 102. TO WHAT HABEAS CORpus EXTENDS

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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Extent and function of the writ
The writ of habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is deprived of his
liberty, or by which the rightful custody of any person is withheld from
the person entitled thereto.
The function of the special proceeding of habeas corpus is to
inquire into the legality of one's detention. In all petitions for habeas
corpus, the court must inquire into every phase and aspect of the
petitioner's detention from the moment petitioner was taken into
custody up to the moment the court passes upon the merits of the
petition and only after such scrutiny can the court satisfy itself that the
due process clause of the Constitution has been satisfied.

Writ a summary remedy and a proceeding in rem

Habeas corpus is a summary remedy. It is analogous to a
proceeding in rem when instituted for the sole purpose of having the
person of restraint presented before the judge in order that the cause of
his detention may be inquired into and his statements final.
The writ of habeas corpus does not act upon the prisoner who
seeks relief but upon the person who holds him in what is alleged
to be the unlawful authority (Cabal/es v. CA, supra.).

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RULE102

parties and question to be resolved

in the petition
The only parties before the court are the petitioner (prisoner)
and the person holding the petitioner in custody and the only
question to be resolved is whether the custodian has
authority to deprive the petitioner of his liberty.
The writ may be denied if the petitioner fails to show facts
that he is entitled thereto ex merito justicias (in the interest of
justice) (Ibid.).

Who may prosecute

The writ of habeas corpus may be prosecuted by:
(1) a person unlawfully imprisoned or restrained of his liberty;
or
(2) some person in his behalf (Kelly v. Director of Prisons, GR
20478, Mar. 14, 1923, 44 Phil. 623).

Where the application made by

another in prisoner's behalf is
repudiated by the latter
Where the application is made in the prisoner's behalf by a
third person, and where the prisoner repudiates the action
taken, the writ will be denied (Ibid.).

Habeas corpus a prerogative writ; purpose thereof

A writ of habeas corpus which is regarded as a "palladium

of liberty" is a prerogative writ which does not issue as a
matter of right but in the sound discretion of the court Or

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
518
judge. It is, however, a writ of right on proper formalities
being made by proof.
EXPOSIT1011

Resort to the writ is not to inquire into the criminal act of

which a complaint is made but unto the right of liberty
notwithstanding the act, and the immediate purpose to be served
is relief from illegal restraint.
The primary, if not the only object of the writ of ha beas
corpus ad subjiciendum ("you shall have the body [or person] for
the purpose of subjecting him to [examinationl'), is to determine
the legality of the restraint under which a person is held (Caballes
v. CA, GR 163108, Feb, 23, 2005, 452 SCRA 312).

Coutt order to present a person before itjust

a preliminary step in hearing the petition and
not a ruling on the propriety of the remedy
In a habeas corpus petition, the order to present an
individual before the court is a preliminary step in the hearing of
the petition. The respondent must produce the person and
explain the cause of his detention.
However, this order is not a ruling on the propriety of the
remedy or on the substantive matters covered by the remedy.
Thus, the Supreme Court's order to the Court of Appeals to
conduct a factual hearing was not an affirmation of the propriety
of the remedy of habeas corpus (In the matter of the petition for
habeas corpus of Capt. Alejano v. Gen. Cabuay, GR 160792, Aug.
25, 2005, 468 SCRA 188).

What the court must inquire into

In all petitions for habeas corpus, the court must inquire into
every phase and aspect of petitioner's detentionfrom the
moment petition was taken into custody up to the moment the
court passes upon the merits of the petition

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519

and Gon/y after such a scrutiny can the court Satisfy itself
that the due process clause of our Constitution has in fact
been satisfied" (Morales, Jr. v. Enri/e, GR 61016 and 61107,
Apr. 26, 1983, 121 SCRA 538) judicial discretion in the
issuance of Writ
While habeas corpus is a writ of right, it Will not issue as a
matter of course or as a mere perfunctory operation on the filing of
the petition. Judicial discretion is called for in its issuance and it
must be clear to the judge to whom the petition is presented that,
prima facie, the petitioner is entitled to the writ (Eugenio, Sr. v.
Velez, GR 85140 and 85470, May 17, 1980, 185 SCRA 468).

When writ may be granted or dismissed

It is only if the court is satisfied that a person is being

unlawfully restrained of his liberty will the petition for ha beas
corpus be granted (Gonzales v. Viola, GR L-43195, Aug. 23, 1935,
61 Phil 824).
If the respondents are not detaining or restraining the applicant
or the person in whose behalf the petition is filed, the petition
should be dismissed (Ngaya-an v. Balweg, GR 80591, 05 Aug.
1991, 200 SCRA 149).

Scope of the writ

Under Section 1, Rule 102 of the Rules of Court, the writ of

habeas corpus extends to "all case of illegal confinement or
detention by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld from the
person entitled thereto."
The remedy of habeas corpus has one objective: to inquire into
the cause of detention of a person and, if

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 RULE 102

521
found illegal, the court orders the release of the detainee If, however,
the detention is proven lawful, then the ha. beas corpus proceedings
terminate (In the Matter of the Petition for Habeas Corpus of Kunting,
GR 167193, Apr. 19, 2006, 487 SCRA 602)

In a petition for habeas corpus, the child's welfare is the supreme

consideration. The Child and Youth Welfare Code unequivocally
provides that in all questions regarding the care and custody, among
others, of the child, his welfare shall be the paramount consideration
(Salientes v. Abanil/a, GR 162734, Aug. 29, 2006, 500 SCRA 128),

Limited use of the writ; not a substitute for

another available recourse
The use of habeas corpus is thus very limited. It is not a writ
of error (In the matter of petition for the privilege of the writ of
habeas corpus: Azucena L. Garcia, GR 141443, Aug. 30, 2000, 339
SCRA 292).
Neither can it substitute for an appeal (Galvez v. CA, GR 114046,
Oct. 24, 1994, 237 SCRA 685).

The writ of habeas corpus could not be used as a substitute

for another available remedy (In re: The Writ of Habeas Corpus for
Reynaldo De Villa, GR 158802, Nov. 17, 2004, 442 SCRA 706).

Writ of error defined

A 'writ of error' is an order emanating from an appellate court
directing an inferior court to convey the records of a case to the
former so that the same may be reviewed for errors of law alleged to
have been committed during the proceedings a quo.

Writ of error and appeal distinguished

The distinction between a 'writ of error,' which brings up the

record in an action of law for a review of questions of law only, and
an 'appeal,' which involves a rehearing upon both the facts and the law, is
vital. These remedies have their origin and functions in the inherent
difference between courts of law and courts of equity.
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The 'Wit of error' is a common law writ and searches the

record for errors of law in the final judgment of a common-
law court. If error is found, the judgment awards a venire
facias de novo (writ for a new trial).

The 'appeal' is a procedure which comes to us from the

civil law along with the fundamentals which go to make up the
jurisprudence of a court of equity. Its office is to remove the
entire cause and it subjects the transcript to a scrutiny of fact
and law and is in substance a new trial (United States v.
Tamparong, GR 9527, Aug. 23, 1915, 31 Phil. 321).

Expanded application of writ to cases of

deprivation of constitutional rights

The writ's application is expanded to circumstances where

there is deprivation of a person's constitutional rights.

Specifically, the writ of habeas corpus is available where:

(1) a person continues to be unlawfully denied of one or

more of his constitutional freedoms;
(2) there is denial of due process;
(3) the restraints are not merely involuntary but are also
unnecessary; and
(4) a deprivation of freedom originally valid has later become
arbitrary (l/usorio v. Bi/dner, GR 139789. May 12, 2000, 387
Phil. 915).

Writs of habeas corpus and certiorari as

ancillary remedies; distinguished

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523

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 (Galvez v. CA, GR 114046, Oct. 24,
1994, 237 SCRA 685).
While ordinarily, the writ of habeas corpus will not be
granted when there is an adequate remedy by writ of error or
appeal or by writ of certiorari, it may, nevertheless, be available
in exceptional cases for the writ should not be considered
subservient to procedural limitations which glorify form over
substance.
Although the question most often considered in both habeas
corpus and certiorari proceedings is whether an inferior court
has exceeded its jurisdiction, the former involves a collateral
attack on the judgment and "reaches the body but not the
record" while the latter assails directly the judgment and
"reaches the record but not the body" (Velasco v. CA, GR
118644, July 7, 1995, 245 SCRA 677).

When writ of certiorari as an ancillary proceeding

When jurisdiction is obtained by the issuance of a writ of

habeas corpus, to bring the body of the person whose liberty is
involved into court, and if it is necessary, to provide the record
upon which the detention is based, that may be accomplished
by using a writ of certiorari as an ancillary proceeding, i.e., it is
subordinate to or in aid of

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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523

the primary action for the purpose of impeaching the record.

When a writ of cettiorari is issued as the foundation of
jurisdiction to bring it and direct upon the validity of a
judicial determination by anybody or officer, jurisdictional
questions only are reached and such questions pertaining to
the detention made by the officer or body particularly

complained of (Cabal/es v. CA, GR 163108, Feb. 23,

2005, 452 SCRA 312).
circumstances when courts may extend the
scope of the writ
A mere allegation of a violation of one's constitutional right is
not sufficient. The courts will extend the scope of the writ only if
any of the following circumstances is present:
(a) There is a deprivation of a constitutional right re suiting in
the unlawful restraint of a person;
(b) The court had no jurisdiction to impose the sen
tence; or
(c) An excessive penalty is imposed and such sen tence is
void as to the excess (Andal v. People, GR 138268-69,
May 26, 1999, 367 Phil. 154).

Writ rendered moot by the release of a

detained person; exception
The general rule is that the release, whether perma nent or
temporary, of a detained person renders the peti ti0n for
habeas corpus moot and academic, unless 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

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RULE 102

involuntary restraint (Villavicencio v. Lukban, GR L-14639, Mar. 25,

1919, 39 Phil. 778).

Voluntary restraint
The writ of habeas corpus ought not to issue if the restraint is
voluntary because such is unnecessary (Kelly v. Director of Prisons,
GR 20478, Mar. 14, 1923, 44 Phil. 623).

Writ the proper legal remedy for parents to

regain custody of minor child
The writ of habeas corpus extends to all cases of illegal
confinement or detention by which any person is deprived of his liberty
or by which the rightful custody of any person is withheld from the
person entitled thereto.

Thus, it is the proper legal remedy to enable parents to regain

the custody of a minor child even if the latter be in the custody of
a third person of his own free will.
In custody cases involving minors, the question of illegal and
involuntary restraint of liberty is not the underlying rationale for
the availability of the writ as a remedy. Rather, it is prosecuted for
the purpose of determining the right of custody over a child
(Tijing v. CA, GR 125901, Mar. 8, 2001, 406 Phil. 449).

Specific instances when the writ may issue

The writ of habeas corpus may be issued for the following
purposes and in the following instances:
(1) To determine the constitutionality of a statute (People v.
Vera, GR 45685, Nov. 16, 1937, 65
Phil. 56);

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
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(2) To determine the legality of an
extradition (US v. Rauscher, 119 Us
407);
(3) To determine the legality of the action
of a legislative body in punishing a citizen
for contempt (Lopez v. Delos Reyes, GR 34361,
Nov. 5, 1930,
55 Phil. 170);
(4) To enable parents to regain custody of a minor child,
even if the latter be in the custody of a third person
of her own free will (Salvafia v. Gaela, GR 34115,
Feb. 21, 1931, 55 Phil. 680);

(5) To give retroactive effect to a penal provision fa

vorable to the accused when the trial judge has lost
jurisdiction by virtue of the finality of the judgment of
conviction (Rodriguez v. Dir. of Pris ons, GR 37914, Aug.
29, 1932, 57 Phil. 133);
(6) To inquire into the legality of an order of confine
ment by a court martial (Ognir v. Dir. of Prisons, GR 1-
1870, Feb. 27, 1948);

(7) To obtain freedom after serving minimum sen

tence when the penalty under an old law has
been reduced by an amendatory law;
(8) To obtain freedom for an accused confined for
failure to post bail where the prosecuting officer
unreasonably delays trial by continued
postponement (Conde v. Rivera, GR 21741, Jan.
25, 1924, 45 Phil. 650);

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RULE 102

(9) To permit an alien to land in the Philippines (Teh Huan

v. Collector of Customs, GR 31953, Dec. 16, 1929, 54
Phil. 129);
(10) To put an end to an immoral situation, as when a minor
girl, although preferring to stay with her employer,
maintains illicit relationship with him (Macazo v. Nunez,
GR 12772, Jan. 24, 1956,
105 Phil. 55);
(11) To test the legality of an alien's confinement and proposed
expulsion from the Philippines (Lao Tang Bun v. Fabre, GR
1673, Oct. 22, 1948, 81
Phil. 682); and
(12) When a bond given by an accused entitled thereto is not
admitted or excessive bail is required of him (In re Dick, GR
13862, Apr. 16, 1918, 38 Phil. 41);

Kinds of habeas corpus writ

The writ of habeas corpus may be classified as:
(a) Preliminary citation — If the person is detained under
governmental authority and the illegality of his
detention is not patent from the petition for the writ,
the court issues the citation to the government officer
having custody to show cause why the habeas corpus writ
should not issue; and
(b) Peremptory writ — If the cause of the detention
appears to be patently illegal, the court issues the habeas
corpus writ noncompliance with which is punishable (Lee
Yick Hon v. Insular Collector of Customs, GR L-16779, Mar.
30, 1921, 41 Phil. 548).

When writ is proper or not

A petition for habeas corpus is not the appropriate vehicle for

asserting a right to bail or vindicating its denial (Ga/vez v. CA, GR
114046, Oct. 24, 1994, 237 SCRA 685).

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Habeas corpus is not the proper mode to question conditions of

confinement. The writ of habeas corpus will only lie if what is challenged is
the fact or duration of confinement (In the matter of the petition for
habeas corpus of Capt, Alejano v. Gen. cabuay, GR 160792, Aug. 25,
2005, 468 SCRA 188).

Also, habeas corpus is not the proper remedy for the

correction of the errors which the accused seek to secure
considering that errors of judgment cannot be corrected
through the remedy of habeas corpus.
As a rule, habeas corpus will not lie to correct errors

of fact or of law (Talabon v. Iloilo Provincial Warden, GR

1.1153, June 30, 1947, 78 Phil. 59). The only exception to this
rule is when the error:
(1) affects the court's jurisdiction; or
(2) is one that would make the judgment absolutely void
(Pomeroy v. Director of Prisons, GR L 14284-85, Feb.
24, 1960, 107 Phil. 50).

Writ not a substitute to appeal or certiorari

Habeas corpus is not in the nature of a writ of error nor
intended as substitute for the trial court's function. It cannot take
the place of appeal, certiorari or writ of error.
The writ cannot be used to investigate and consider questions
of error that might be raised relating to proce dure or on the
merits. The inquiry in a habeas corpus pro ceeding is addressed to
the question of whether the pro Ceedings and the assailed order
are, for any reason, null and void.

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The writ is not ordinarily granted where the law provides for
other remedies in the regular course and in the
528

absence of exceptional circumstances (Caballes v. CA GR 163108,

Feb. 23, 2005, 452 SCRA 312).

SECTION 2 RULE 102. WHO MAY GRANT THE WRIT

Writ; by whom granted
The writ of habeas corpus may be granted by the Supreme Court
or any member thereof in the instances authorized by law and, if so
granted, it shall be enforceable anywhere in the Philippines and may
be made returnable before the court or any member thereof or before
a Regional Trial Court or any judge thereof for the hearing and decision
on the merits.
It may also be granted by a Regional Trial Court or a judge thereof
on any day and at any time and returnable before himself, enforceable
only within his judicial district (Sec. 2, Rule 102, ROC).

Writ; where enforceable

The writ of habeas corpus, if granted by the Supreme Court or

any member thereof, or by the Court of Appeals or any member
thereof, in the instances authorized law, shall be enforceable
anywhere in the Philippines and may be made returnable before the
court or any member thereof or before a Regional Trial Court (RTC) or
any judge thereof.
If granted by an RTC, the writ shall be returnable before that
court and shall be enforceable only within its territorial jurisdiction,
said provision being an exception to the rule that processes, orders

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 528 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

and judgments of the RTCs are generally enforceable throughout the

Philippines.

absence of exceptional circumstances (Cabal/es v. CA GR

163108, Feb. 23, 2005, 452 SCRA 312).

SECTION 2 RULE 102. WHO MAY GRANT THE WRIT

Writ; by whom granted
The writ of habeas corpus may be granted by the Supreme
Court or any member thereof in the instances authorized by law
and, if so granted, it shall be enforceable anywhere in the
Philippines and may be made returnable before the court or any
member thereof or before a Regional Trial Court or any judge
thereof for the hearing and decision on the merits.
It may also be granted by a Regional Trial Court or a judge
thereof on any day and at any time and returnable before
himself, enforceable only within his judicial district (Sec. 2, Rule
102, ROC).

Writ; where enforceable

The writ of habeas corpus, if granted by the Supreme Court

or any member thereof, or by the Court of Appeals or any
member thereof, in the instances authorized law, shall be
enforceable anywhere in the Philippines and may be made
returnable before the court or any member thereof or before a
Regional Trial Court (RTC) or any judge thereof.
If granted by an RTCI the writ shall be returnable before that
court and shall be enforceable only within its territorial
jurisdiction, said provision being an exception to the rule that
processes, orders and judgments of the RTCs are generally
enforceable throughout the Philippines.

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529

writ involving custody of minors; where

to file petition; return of writ
A verified petition for a Writ of habeas corpus involving
custody of minors shall be filed with the Family Court FTC).
The writ shall be enforceable within its judicial re gion to
which the Family Court belongs.
The petition may likewise be filed with the Supreme
court, Court of Appeals or with any of its members and, if so
granted, the writ shall be enforceable anywhere in the
philippines. The writ may be made returnable to a Family
court (RTC) 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 (Sec. 20, AM 03-03-04-
SC).

Exclusive jurisdiction over habeas corpus

cases relating to child's custody
The Family Courts (RTCs) have exclusive original
jurisdiction to hear and decide, among others, petitions for
guardianship, custody of children and habeas corpus in
relation to the latter (Sec. 51b], RA 8369).

Sandiganbayan'sjurisdiction over habeas

corpus petitions
Sandiganbayan has exclusive original jurisdiction over
petitions for the issuance of the writ of habeas corpus,
among other ancillary writs and processes, only in aid of its
appellate jurisdiction (Sec. 2, RA 7975, amending Sec. 4 ofPD
1606).
Concurrent jurisdiction of Supreme COUN
and Coutt of Appeals

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The Coud of Appeals and Supreme Court have con.

current jurisdiction with family courts in habeas corpus cases
where the custody of minors is involved (Thornton
v. Thornton, GR 154598, Aug. 16, 2004, 436 SCRA 550).

Enforceability of a writ issued by the SC and

made returnable to the RTC
Although the last sentence of Section 2 (of Rule 102)
declares that the writ of habeas corpus granted by a Regional
Trial Court shall be enforceable only within his judicial
district, this limitation is not in point when the writ was
granted by the Supreme Court and, as provided in said
section, "it shall be enforceable anywhere in the Philippines.
"

In point of practice, when a writ of habeas corpus is,

conformably to law, made returnable to a court (RTC) other
than that (SC) issuing the writ, the court (RTC) to which the
writ is returned or the judge thereof possesses full authority
to examine all issues raised in the case and to settle the
same (Saulo v. Cruz, GR L-148f9, Mar. 19, 1959, 105 Phil.
315).

Habeas corpus, not prohibition, the proper

remedy to test legality of alien's confinement
and proposed expulsion

The writ of prohibition should issue only in cases of

extreme necessity and if there is no other plain, speedy, and
adequate remedy (Sec. 2, Rule 65, ROC),
The use of habeas corpus to test the legality of an
alien's confinement and proposed expulsion from the
phil-
Bun v. Fabrej GR

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531

The existence
of such remedy of
a writ of habeas corpus will bar the issuance of a writ of
prohibition (De Bisschop v. Galang, GR L-18365, May 31,
1963, 8 SCRA
244).

supreme Court's original and concurrent

jurisdiction over petitions for habeas corpus

The Supreme Court has original jurisdiction,

concurrent with that of Regional Trial Courts and the
Court of Appeals, over petitions for certiorari, prohibition,
mandamus, quo warranto and habeas corpus and having
such, it entertains direct resort to it in cases where
special and important reasons or exceptional and
compelling circumstances justify the same (Government
of the United States ofAmerica v. Purganan, GR 148571,
sept. 24, 2002, 389 SCRA 623).

SECTION3 RULE 102. RE UISITES OF APPLICATION

THEREFOR

Who may apply for the writ

The application for the writ shall be by petition signed
and verified either by:
(1) the party for whose relief it is intended; or

(2) some person on his behalf (Sec. 3, Rule 102,

ROC).

Contents of the petition

The petition shall set forth:
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 532 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

(a) that the person in whose behalf the application is

made is imprisoned or restrained of his liberty;
(b) the officer or name of the person by whom he is so
imprisoned or restrained; or, if both are unknown or
uncertain, such officer or person may be described
by an assumed appellation, and the person who is
served with the writ shall be deemed the person
intended;
(c) the place where he is so imprisoned or restrained, if
known; and
(d) a copy of the commitment or cause of detention of such
person, if it can be procured without impairing the
efficiency of the remedy; or, if the imprisonment or
restraint is without any legal authority, such fact shall
appear (Sec. 3, Rule 102, ROC).

Meaning of "some person"

The term "some person" under Section 3, Rule 102 of the
Rules of Court means any person:
(1) having a legally justified interest in the freedom of
the person whose liberty is restrained; or
(2) showing some authorization to make the application
(Velasco v. CA, GR 118644, July 7, 1995, 245 SCRA 677).

When observance of technical requisites may

be dispensed with
Strict compliance with the technical requirements for a
habeas corpus petition as provided in the Rules of Court may
be dispensed with where the allegations in the application
are sufficient to make out a case for habeas corpus (Fletcher
v. Director of Bureau of Corrections, UDR-14071,

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Required formalities construed liberally;

formal defect not fatal
The formalities required for petitions for habeas cor
pus shall be construed liberally. The petition for the
writ is required to be verified but the defect in form is not
fatal (Angeles v. Director of New Bilibid Prison, GR
117568, Jan. 4, 1995, 310 Phil. 56).

Court may issue writ even sans petition filed

when evidence so warrants
It is the duty of a court to issue the writ if there is
evidence that a person is unjustly restrained of his liberty
within its jurisdiction even if there is no application therefor
(Vil/avicenc;o v. Lukban, GR L-14639, Mar. 25, 1919, 39 Phil.
778).

Court cannot issue writ to

convicted prisoners who only
served the minimum term
The petition for habeas corpus cannot be granted if
the accused has only served the minimum of his sentence
as he must serve his sentence up to its maximum term
(Rigor v. The Superintendent, New Bilibid Prison, GR
156983, sept 23, 2003, 411 SCRA 646).
Granting the writ of habeas corpus even if the con
victed prisoners had only served the minimum period
of their sentence displays a blatant disregard of the
rule on graduation of penalties (OCA v. Pere//o, AM
RTJ-05- 1953, Dec. 24 2008).

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Writ to issue only based on actual or physical,

not on merc moral, restraint
A person out on bail is not so restrained of his liberty as to be
entitled to a writ of habeas corpus. The restraint of liberty which
would justify the issuance of the writ must be more than a mere
moral restraint; it must be actual or physical (Gonzales v. Viola,
GR 43195, Aug. 23, 1935, 61 Phil. 824).

Claim for damages not allowed in the petition

The applicant cannot allege and pray for damages in his
petition. In Habeas Corpus cases, the judgment in favor of the
applicant cannot contain a provision for damages. It has to be
confined to what is provided for in Section 15, Rule 102 of the
Rules (Alimpoos v. CA, GR L27331, July30, 1981, 106 SCRA
159).

When writ petition becomes moot and

academic
The petition is rendered moot and academic upon the release
of the person subject of the application for a writ of habeas corpus
(Paule v. Blue Ribbon Committee, GR 186118, July 28, 2009).
Courts of justice constituted to pass upon substantial rights
will not consider questions where no actual interests are involved.
Thus, the well-settled rule that courts will not determine a moot
question.
Where the issues have become moot and academic, there
ceases to be any justiciable controversy, thus rendering the
resolution of the same of no practical value. This Court will
therefore abstain from expressing its opin-
ion in a v. case Abu, where GR 170924, no legal July relief
4, 2007, is needed 526 SCRA or called 483).for

SECTION 4 RULE 102. WHEN WRIT NOT ALLOWED OR

DISCHARGE AUTHORIZED

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 RULE 102

535

Instances when writ is not

allowed or when person is not
discharged after issue of writ
The writ shall not be allowed'.
(a) if the person alleged to be restrained of his
liberty is in the custody of an officer under
process issued by a court or judge or by virtue
of a judgment or order of a court of record and
that the court or judge had jurisdiction to issue
the process, render the judgment or make the
order;
(b) if the jurisdiction appears after the writ is
allowed;
(c) if a person is charged with or convicted of an
offense in the Philippines;
(d) if a person is suffering imprisonment under a lawful
judgment (Sec. 4, Rule 102, ROC); and

(e) if a person arrested under Section 18 of Republic

Act No. 9372 (Human Security Act of 2007) is
detained for a period of not more than three (3) days
following his arrest for custodial investiga tion.
Writ no longer available after filing of
information

A writ of habeas corpus is no longer available after an

information is filed against the person detained and a
wartant of arrest or an order of commitment,

is issued by the

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 536 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

court where said information has been filed (//agan v, Enrile, GR

70748, Oct. 21, 1985, 139 SCRA 349).

Remedy of a detained person duly charged

in coutt
Once the person detained is duly charged in court, he
may no longer question his detention by a petition for the
issuance of a writ of habeas corpus. His remedy then is the
quashal of the information and/or the warrant of arrest duly
issued.
The reason for the issuance of the writ even becomes
more unavailing when the person detained files a bond for
his temporary release (Bernarte v. CA, GR 107741, Oct. 18,
1996, 263 SCRA 323).
The term court includes quasi-judicial bodies or
governmental agencies authorized to order the person's
confinement, like the Deportation Board of the Bureau of
Immigration (Rodriguez v. Bonifacio, AM RTJ-99-1510, Nov. 6,
2000, 398 Phil. 441).

Writ not a means to obtain facts or

evidence

Habeas corpus may not be used as a means of obtaining

evidence on the whereabouts of a person or as a means of
finding out who has specifically abducted or caused the
disappearance of a certain person (Madinez v. Mendoza, GR
153795, Aug. 17, 2006, 499 SCRA 234).

Circumstances when the writ is unavailing,

not proper
Some of the instances when the writ of habeas corpus is
not proper are:

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 537

(1) For the purpose of asserting or vindicating denial

of right to bail (Galvez v. CA, GR 114046, Oct. 24,
1994, 237 SCRA 685);
(2) To correct errors in the appreciation of facts or
appreciation of law. Where the trial court had no
jurisdiction over the cause, over the person of the
accused, and to impose the penalty provided for by
law, the mistake committed by the trial court, in the
appreciation of the facts and/or in the appreciation of
the law, cannot be corrected by habeas corpus (Sotto
v. Dir. of Prisons, GR L18871, May 30, 1962, 5 SCRA
293); and
(3) When a person detained is duly charged in court,
he may no longer file a petition for habeas corpus.
His remedy would be to quash the information or
warrant (Rodriguez v. Bonifacio, AM R TJ99-1510,
Nov. 6, 2000, 398 Phil. 441).

Other cases when the writ may not be

availed of

The writ may not be availed of when the person in

custody is under a judicial process or by virtue of a valid
judgment.

However, as a post-conviction remedy, it may be al lowed

when, as a consequence of a judicial proceeding, any of the
following exceptional circumstances is attendant:

(a) there has been a deprivation of a constitutional

right resulting in the restraint of a person;

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 538 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

(b) the court had no jurisdiction to impose the sen

tence; or
(c) the imposed penalty has been excessive, thus voiding the
sentence as to such excess (Go v. Dimagiba, GR 151876, June 21,
2005, 460 SCRA 451).

The rule is that if a person alleged to be restrained of his

liberty is in custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record the
writ of habeas corpus will not be allowed (De Joya v. The Jail
Warden of Batangas City, GR 159418-19, 10 Dec. 2003, 417 SCRA
636).

Supervening events that may bar release or

discharge from custody
Even if the arrest of a person is illegal, supervening events may
bar his release or discharge from custody.
What is to be inquired into is the legality of his detention as of,
at the earliest, the filing of the application for a writ of habeas
corpus, for even if the detention is at its inception illegal, it may, by
reason of some supervening events, such as the instances
mentioned in Section 4, Rule 102 of the Rules of Court, be no
longer illegal at the time of the filing of the application.

Among such supervening events are:

(1) the issuance of a judicial process preventing the discharge
of the detained person; and
(2) the filing of a complaint or information for the offense for
which the accused is detained (Velasco
v. CA, GR 118644, July 7, 1995, 245 SCRA 677).
Bail not a bar to objections on illegal arrest

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 An application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or
FEE 102 539

the legality of the warrant issued therefor (Sec. 26, Rule {14,
ROC).

SECTION 5 RULE 102. WHEN THE WRIT musr BE

GRANTED AND ISSUED

When court must grant the writ

When a petition for a writ of habeas corpus is pre sented
and it appears that the writ ought to issue, a court or judge
authorized to grant the writ must grant the same

forthwith and immediately thereupon the clerk of the court shall

issue the writ under the seal of the court.
In case of emergency, the judge may issue the writ under
his own hand and may deputize any officer or person to serve
it (Sec. 5, Rule 102, ROC).

Hearing not a requisite for the grant of

the writ
A court may grant the writ if it appears upon presenta-

tion of the petition that the writ ought to be issued, No

hearing is required before a writ may be issued (Tan v. Adre,
AM RTJ-05-1898, Jan. 31, 2005, 450 SCRA 145)
Court duty-bound to issue the writ even sans
petition if evidence so warrants
It is the duty of a court or judge to grant a writ of ha beas
corpus if there is evidence that within the court's jurisdiction
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 540 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

a person is unjustly imprisoned or restrained of his liberty, though

no application be made therefor (Villavicencio v. Lukban, GR L-

14639, Mar. 25, 1919, 39 Phil. 778).

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
540

SECTION 6 RULE 102. TO wH0M WRIT DIRECTED AND WHAT TO REQUIRE

To whom the writ is directed or addressed

In case of imprisonment or restraint by an officer, the writ shall
be directed to him and shall command him to produce the body of the
person restrained of his liberty before the court or judge designated
in the writ at the time and place specified therein.
In case of imprisonment or restraint by a person not an officer,
the writ shall be directed to an officer and shall command him to take
and bring the body of the person restrained of his liberty before the
court or judge designated in the writ at the time and place specified
therein and to summon the person by whom he is restrained then and
there to appear before said court or judge to show the cause of the
imprisonment or restraint (Sec. 6, Rule 102, ROC).

The petition for the issuance of the writ should ordinarily be

addressed to the person under whom the person in whose behalf the
petition is made is in detention or in alleged illegal custody (Alimpoos
v. CA, GR L-27331, July 30, 1981, 106 SCRA 159) as such person
detaining or having custody of the other would thereby be in a
position to produce at the hearing the body of the person so
detained, consistent with the import of Section 6, Rule 102 of the
Rules (Security Bank and Trust Company, Inc. v. Cuenca, GR 140823,
Oct 3, 2000, 341 SCRA 806).

When writ is directed to the person having constructive

custody over the respondent
Where a judge has constructive custody over respondent for
having issued the assailed order and warrant for

541

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 543
his arrest, the writ should be addressed to the former in stead of to the
officer or anyone who actually detains the person .in whose behalf the
application for a writ is made

(Ibid.).

Writ not availing where proceedings is marred by

mere irregularities
Where restraint is under legal process, mere errors and
irregularities, which do not render the proceedings void, are not
grounds for relief by habeas corpus because in such cases, the
restraint is not illegal (Mangi/a, v. pangi/inan, GR 160739, July
17, 2013, 701 SCRA 355).

SECTION 7 RULE 102. HOW PRISONER DESIGNATED AND

WRIT SERVED

Service of the writ

The person to be produced should be designated in the writ

by his name, if known, but if his name is not known, he may be
otherwise described or identified. The writ may be served in any
province by the sheriff or other proper officer, or by a person
deputed by the court or judge.
Service of the writ shall be made by leaving the original with
the person to whom it is directed and preserving a copy on which
to make return or service, If that person cannot be found or does
not have the prisoner in his custody, then service shall be made
on any other person having or exercising such custody (Sec. 7,
Rule 102, ROC).
SECTION 8 RULE 102. HOW WRIT EXECUTED AND
RETURNED

542

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
Conveyance to court of imprisoned or
restrained person
The officer to whom the writ is directed shall convey
the person so imprisoned or restrained and named in the
writ before the judge allowing the writ or, in case of the
latter's absence or disability, before some other judge of the
same court on the day specified in the writ unless such
person cannot, due to sickness or infirmity, be bought be.
fore the court or judge without danger.
The officer shall make due return of the writ together with
the day and the cause of the caption and restraint of such
person according to the command thereof (Sec. 8, Rule 102,
ROC).

SECTION 9 RULE 102, DEFECT OF FORM

Formal defect in writ
The writ of habeas corpus shall not be disobeyed due to
defect of form if it sufficiently appears from it:
(a) the person having custody or restraining the party
subject thereof; and
(b) the court or judge before whom said party is to be
bought (Sec. 9, Rule 102, ROC).
SECTION 10 RULE 102, CONTENTS OF RETURN

Statements required to be made in the return

If the person to be produced is imprisoned or re-

strained by an officer, the person who makes the return
shall state therein and, in other cases, the person in whose
custody the prisoner is found shall state in writing
øÅE102

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 545
to the court or judge
plainly and unequivocably: returnable (1) whether he
has or hag

(2) if he has the party in his custody or power or une

der 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;
(3) if the party is in his custody or power or is
restrained by him and is not produced,
particularly the nature and gravity of the sickness
or infirmity of such party by reason of which he
cannot, without danger, be bought before the
court or judge; or
(4) 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 whom, at
what time, for what cause and by what authority
such transfer was made (Sec. 10, Rule 102,
ROC).

SECTION 11 RULE 102. RETURN TO BE SIGNED

AND SWORN TO

Retum must be signed by maker and

swom to ifprisoner not produced
The retum or statement shall be signed by the person
who makes it and shall also be sworn by him if the
prisoner is not produced and in alt other cases, unless
the is made and signed by a swom public officer in his
oficial capacity (Sec. 11, Rule 02, Roc).

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
SECTION 12 RULE 102, HEARING ON RETURN.
AD. JOURNMENTS
Court to immediately hear and examine
the return
When the writ is returned before one judge at a time when
the court is in session, he may forthwith adjourn the case into the
court, there to be heard and determined.
The court or judge before whom the writ is returned or
adjourned must immediately proceed to hear and examine the
return and such other matters as are properly submitted for
consideration unless, for good cause shown, the hearing is
adjourned in which event the court or judge shall make such
order for the safekeeping of the person imprisoned or
restrained as the nature of the case requires.
If the person imprisoned or restrained is not produced
because of his alleged sickness or infirmity, the court or judge
must be satisfied that it is so grave that such person cannot be
produced without danger before proceeding to hear and
dispose of the matter.
On the hearing, the court or judge shall disregard matters
of form and technicalities in respect to any warrant or order of
commitment of a court or officer authorized to commit by law
(Sec. 12, Rule 102, ROC).

"For the safekeeping of the person

imprisoned or restrained" construed;
"safekeeping" defined

The phrase "for the safekeeping of the person

imprisoned or restrained" cannot be construed to mean
temporary release on bail because a person arrested or
detained cannot be released on bail unless that right is
granted
RULE 102

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 547
expressly by law, as the right of defendants in criminal
cases to be released on bail under certain condition as well
as the right of a person whose release has been ordered by
judgment in a habeas corpus proceeding to be temporarily
released on bail if appeal is taken by the officer or person
detaining are granted by Section 20, Rule 41 of the Rules
of Court.
On the contrary, the world "safekeeping" according to
the dictionaries means "the act or state of keeping or
being kept in safety."
A person arrested is not safely kept if released on bail
(Bengzon v. Ocampo, GR L-3078, sept. 27, 1949, 84 Phil.
611).

Effect of failure to reply to return of the writ

The failure of the petitioners to file a reply or

comment on the return of the writ warrants the dismissal
of the petition in line with the rule that, unless the
allegations in the return are controverted, they are deemed
to be true or admitted, pursuant to Section 13, Rule 102 of
the Rules of Court which provides that the "return shall be
considered Prima facie evidence of the cause of restraint,
if it appears that the prisoner is in custody under a
warrant of commitment in pursuance of law. "
W
hen the allegation that the arrest was by virtue of a
'Warrant of commitment in pursuance of law" has not
been denied by way of a reply or comment to the return of
the writ by the petitioners, the legality of petitioners'
detention is deemed to have been admitted by them and
habeas corpus would, accordingly, not lie (Florendo v.
Javier, GR 1-36101, June 29, 1979, 91 SCRA 204)
546

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
SECTION 13 RULE 102. WHEN THE RETURN EVIDENCE
AND WHEN ONLY A PLEA

When return is deemed prima

facie evidence or only as a plea of
the facts
Should it appear that the prisoner is in custody under a
warrant of commitment in pursuance of law, the return shall
be considered prima facie evidence of the cause of restraint.
However, if the prisoner is restrained of his liberty by any
alleged private authority, the return shall be considered only
as a plea of the facts therein set forth and the party claiming
the custody has the burden of proving such facts (Sec. 13,
Rule 102, ROC).

Burden of proving illegal restraint lies

with the petitioner
As a general rule, the burden of proving illegal restraint
by the respondent rests on the petitioner who attacks such
restraint. In other words, where the return is not subject to
exception, that is, where it sets forth a process which on its
face shows good ground for the detention of the prisoner, it
is incumbent on petitioner to allege and prove new matter
that tends to invalidate the apparent effect of such process.
If the detention of the prisoner is by reason of lawful
public authority, the return is considered prima facie evidence
of the validity of the restraint and the petitioner has the burden
of proof to show that the restraint is illegal (Feria v. CA, GR
122954, Feb. 15, 2000, 325 SCRA 525).
RULE 102. WHEN PERSON LAWFULLY
ICRISC;€ED RECOMMITTED AND WHEN LET TO
BAIL

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 549
When prisoner may be recommitted
to imprisonment or admitted to bail
If it appears that the prisoner was lawfully
committed and is plainly and specifically charged in the
warrant of commitment with an offense punishable by
death, he shall not be released, discharged or bailed.
However. if he is lawfully imprisoned or restrained on
a charge of having committed an offense not so punishable,
he may be recommitted to imprisonment or admitted to bail
in the discretion of the court or judge.

Should the prisoner be admitted to bail, he shall forthwith

file a bond in such sum as the court or judge deems reasonable
considering the circumstances of the prisoner and the nature of
the offense charged conditioned on his appearance before the
court where the offense is Properly cognizable to abide by its
order of judgment.
The court or judge shall certify the proceedings, toEther
with the bond, forthwith to the proper court. If such bond is not
so filed, the prisoner shall be recommitted to Confinement
(Sec. 14, Rule 102, ROC).

Writ does not lie after issuance of warrant

of commitment
Habeas corpus would not lie after the warrant of
COmmitment was issued by the court on the basis of the
information filed against the accused (llagan v, PoncaEnrile,
GR 70748, Oct. 21, 1985, 139 SCRA 349).

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE
EXPOSITION 550
Application of the Rule
The provision of Section. 14, Rule 102 of the Rules of Court
applies to cases where the applicant for the writ of habeas corpus is
restrained by virtue of a criminal charge against him, not where he is
serving sentence by reason of a final judgment.
Section 14 of Rule 102 disallows issuance of the writ where the
person alleged to be restrained of his liberty is suffering
imprisonment under a lawful judgment (Vicente
v. Majaducon, AM RTJ-02-1698, June 23, 2005, 461 SCRA 12).

Rules for grant and cancellation of bail in

habeas corpus proceedings
The grant of bail under Section 14, Rule 102 of the Rules of Court
does not do away with the basic requirements set forth in Rule 114 of
the Rules on Criminal Procedure on Bail since the former merely
prescribes supplemental rules on bail for habeas corpus proceedings.
While discretion is afforded the judge to grant bail, no discretion is
authorized in the cancellation thereof for the rules limit the instances
under which bail may be cancelled. Thus, Section 22 of Rule 114
applies (Contreras v. Solis, A.M. RTJ-94-1266, Aug. 21, 1996, 260 SCRA
572).

Case where the applicant is serving sentence by

reason of a final judgment
Section 14, Rule 102 of the Rules of Court applies only to cases
where the applicant for the writ of habeas corpus is restrained by virtue
of a criminal charge against him and not in an instance where the
applicant is serving
102

sentence by reason of a final judgment (Vicente v. Mae

jaducon, supra.).

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 551
SECTION 15 RULE 102. WHEN PRISONER DIS. cHARGED IF NO
APPEAL

Order for the discharge of prisoner from

confinement

When the court or judge has examined into the cause of

caption and restraint of the prisoner and is satisfied that he is
unlawfully imprisoned or restrained, he shall forthwith order his
discharge from confinement but such discharge shall not be
effective until a copy of the order has been served on the officer
or person detaining the prisoner.
If the officer or person detaining the prisoner does not
desire to appeal, the prisoner shall be forthwith released
(Sec. 15, Rule 102, ROC).

Release contemplated under the writ

What the writ envisages is a release that is free from

involuntary restraints and not one:
(a) where a person continues to be unlawfully denied one or more
of his constitutional freedoms;
(b) where there is present a denial of due process;
(c) where the restraints are not merely involuntary but
appear to be unnecessary; and
(d) where a deprivation of freedom originally valid has, in the
light of subsequent developments, be-

Where any Of these circumstances occur, the person

Concerned or those applying in his behalf may still avail

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE
EXPOSITION 552
themselves of the privilege of the writ (Moncupa v. Enrile, GR
63345, Jan. 30, 1986, 141 SCRA 233).
Period for appeal in habeas corpus case
The reglementary period for filing an appeal in a habeas corpus
case is now similar to that in ordinary civil actions and is governed
by Section 3, Rule 41 of the Rules of Court which provides:
"SEC. 3. Period of ordinary appeal.—The appeal shall be
taken within fifteen (15) days from notice of the judgment or
final order appealed from. Where a record on appeal is
required, the appellant shall file a notice of appeal and a
record on appeal within thirty (30) days from notice of the
judgment or final order.
"The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or
reconsideration shall be allowed."
Damages not allowed in habeas corpus cases
An allegation as to and prayer for damages is out of place. In
Habeas Corpus cases, the judgment in favor of the applicant cannot
contain a provision for damages. It has to be confined to what is
provided for in Section 15, Rule 102 wherein there is no provision
for serving copy of the discharge on any other private party
defendant nor for an award of damages (Alimpoos v, CA, GR L-
27331, July 30, 1981, 106 SCRA 159).
Solitary function of the writ is relief from illegal
detention
The sole function of the writ is to relieve from unlawful
imprisonment and ordinarily it cannot properly be used for any
other purpose.
RUE 102

Thus, the writ cannot properiy be utéd:

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 553
(1) to enforce a right to service;
(2) to determine whether a person has committed a

(3) to determine a disputed interstate boundary line:

(4) to punish respondent or to afford the injured person redress for the
illegal detention; or
(5) to recover damages or other money award (Alimpoos v. CA, GR L-
27331, July 30, 1981, 106 SCRA 159).

SECTION 16 RULE 102. PENALTYFOR REFUSING TO ISSUE WRIT OR

FOR DISOBEYING THE SAME

Sanctions for refusal to issue or obey the wit, making

false return, recommitting a freed prisoner or illegally
ordering transfer of custody

The court or judge shall forfeit to the party aggrieved the sum of
one thousand pesos (PI ,000.00) to be reØrded in a proper action and
may also punish for contempt:
(a) a clerk of a court who refuses to issue the writ after allowance
thereof and demand therefor; (b) a person to whom a writ is directed
who:
(1) neglects or refuses to obey or make return of the same
according to the command thereof; or
(2) makes false return thereof;
(3) upon demand made by or on behalf of the prisoner,
refuses to deliver to the person
demanding within six (6) hours after the de. mand
therefor a true copy of the warrant or order of
commitment (Sec. 16, Rule 102, ROC);

(c) a person who knowingly and in violation the provisions

of Rule 102 recommits or imprisons or causes to be
committed or imprisoned for the same offense or

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE
EXPOSITION 554
pretended offense any person already set free or who
knowingly aids or assists therein (Sec. 17, Rule 102,
ROC); or
(d) a person who, after commitment (of a person to prison or
in custody of an officer for any criminal matter), makes,
signs or counter-signs any order for removal (from such
prison or custody into the custody of another) contrary to
Section 18, Rule 102 of the Rules of Court.
Contempt of court defined
Contempt of court involves the doing of an act, or the failure to
do an act, in such a manner as to create an affront to the court and the
sovereign dignity with which it is clothed. It is defined as
"disobedience to the court by acting in opposition to its authority,
justice and dignity" (Pana/igan v. [bay, AM RTJ-06-1972, June 21,
2006, 49 1 SCRA 545).

The power to punish contempt is inherent i n all courts, because

it is essential to the preservation of order in judicial proceedings,
and to the enforcement of judgments, orders and mandates of the
courts; and, consequently, to the due administration of justice
(Montenegro v, Montenegro, GR 156829, June 8, 2004, 431 SCRA
415).

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 and criminal contempt dlstlngvlefw
Contempt, whether direct or indirect
depending on the nature and

*fist tho authority and dignity of the Coud or a judge ding

judicially; it is an act obstructing the administration djustice
which tends to bring the coun into disrepute or

On the other hand, civil contempt is the failure to do

something ordered to be done by a court or a judge for the
Enefit of the opposing party therein and is therefore, an
offense against the party in whose behalf the violated order
was made. If the purpose is to punish, then it is criminal in
nature; but if to compensate, then it is civil (Montenegro v.
Montenegro, GR 156829, June 8, 2004, 431 SCRA 415).

Direct contempt vis-å-vis indirect contempt

Direct contempt is committed in the presence of or so near
a court as to obstruct or interrupt the proceedings before the
same, and includes disrespect toward the court, offensive
personalities toward others, or refusal to be sworn or to answer
as a witness, or to subscribe an affidavit or deposition when
lawfully required to do so (Sec. 1, Rule 71, ROC).
On the other hand, the particular acts which constitute
indirect contempt are as follows:
(1) Misbehavior of an officer of a court in the performance of
his official duties or in his official

(2) Disobedience of or resistance to a lawful writ, process, order or

judgment of a court, including
554

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
the act of a person who, after being dispose sessed or
ejected from any real property by the judgment or process
of any court of competent jurisdiction, enters or attempts
or induces another to enter into or upon such real property,
for the purpose of executing acts of ownership or pos.
session, or in any manner disturbs the posses. sion given to
the person adjudged to be entitled thereto;
(3) Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting direct
contempt under Section 1 of Rule
71 ;
(4) Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice;
(5) Assuming to be an attorney or an officer of a court, and
acting as such without authority;
(6) Failure to obey a subpoena duly served; and
(7) The rescue, or attempted rescue, of a person or property in
the custody of an officer by virtue of an order or process of
a court held by him (Section 3, Rule 71, ROC).

Penalty for indirect contempt

Section 7, Rule 71 of the Rules of Court penalizes indirect
contempt as follows:
"Sec. 7. Punishment for indirect contempt.—if the
respondent is adjudged guilty of indirect committed against a
regional trial court or a court of equivalent or higher rank, he
may be punished by a fine not exceeding thirty thousand pesos
or imprisonment not
RWE 102

six (6) monthsj or bothe he adjudged guilty of

contempt committed against a lower may be punished by a
fine not exceeding five thousand pesos or imprisonment
not exceeding one (1) month, or both. If the contempt
consists in the violation of a writ of injunction, temporary
restraining order or status quo order, he may also be
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 557
ordered to make complete restitution to the party injured
by such violation of the property involved or such amount
as may

"The writ of execution, as in ordinary civil actions, shall

issue for the enforcement of a judgment imposing a fine unless
the court otherwise provides."
Nature of the court's contempt power
The nature of a judge's power to cite litigants in con e tempt of
court is a drastic and extraordinary attribute of courts, to be
exercised in the interest of justice and only when there is clear and
contumacious refusal to obey orders (Gamboa v. Teodoro, Sr., GR
L-4893, May 13, 1952, 91 Phil. 270).
If a bona fide misunderstanding of the terms of an order
does not justify the immediate institution of contempt
proceedings, with more reason that it should not serve as
basis to prolong a litigant's detention under a prior contempt
citation when there has been an attempt to comply with the
order (Camara v. Pagayatan, GR 176563, Apr. 2, 2007, 520
SCRA 182).
SECTION 7 RULE 102, PERSON DISCHA GED OT
To BE AGAIN IMPRISONED
When freed prisoner need not to be
imprisoned anew for the same offense
A person who is set free by virtue of a writ of habeas
corpus shall not be imprisoned again for the same offense
556

unless by the lawful order or process of a court having

jurisdiction of the cause or offense.
A person who knowingly and in violation the provisions
of Rule 102 of the Rules of Court recommits or imprisons or
causes to be committed or imprisoned for the same offense or
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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
pretended offense any person already set free or who
knowingly aids or assists therein shall forfeit to the party
aggrieved the sum of one thousand pesos (PI ,000.00) to be
recovered in a proper action notwithstanding any colorable
pretense or variation in the warrant of commitment and may
also be punished for contempt by the court or judge granting
the writ (Sec. 17, Rule 102, ROC).

State cannot reserve the power to re-arrest an

acquitted person for the same offense
The State cannot reserve the power to re-arrest a person
for an offense after a court of competent jurisdiction has
absolved him of the offense. Such a reservation is repugnant to
the "government of laws and not of men" principle under which
it is held that the moment a person is acquitted on a criminal
charge, he can no longer be detained or re-arrested for the same
offense (Toyoto v. Ramos, GR L-69270, Oct. 15, 1985, 139
SCRA 316).

SECTION 18 RULE 102. WHEN PRISONER MAY BE

REMOVED FROM ONE CUSTODY TO ANOTHER
Transfer of custody of prisoner; penalty
for violation of the rule
A person committed to prison or in custody of an officer for
any criminal matter shall not be removed therefrom into the
custody of another unless:
(a) by legal process; or
gEt02

(b) the prisoner shall be delivered to an interior offi-

(c) by order of the proper court or judge, the prisoner shall be

removed from one place to another

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 559
(a) for trial; or
(b) in case of fire epidemic, insurrection or other
necessity or public calamity.
A person who, after such commitment, makes, signs or
unter-signs any order for such removal contrary to Section
18 of Rule 102 shall forfeit to the party aggrieved the sum of
one thousand pesos (P 1,000.00) to be recovin a proper
action (Sec. 18, Rule 102, ROC).
SECTION 19 RULE 102. RECORD OF WRIT FEES AND
COSTS
Against whom costs of litigation shall be
charged
The proceedings upon a writ of habeas corpus shall
recorded by the clerk of the court and upon the final
disposition of such proceedings, the court or judge shall
make such order as to costs as the case requires.
The fees of officers and witnesses shall be included in tie
Østs taxed but no officer or person shall have the right to
demand payment in advance of any fees to which he is entitled
by virtue of the proceedings.
When a person confined under color of proceedings in a
criminal case is discharged, the costs shall be taxed against the
Republic of the Philippines, and paid out of its Treasury.

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560 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
When a person in custody by virtue or under color of
proceedings in a civil case is discharged, the costs shall be
taxed against him or against the person who signed the
application for the writ or both as the court shall direct (Sec
19, Rule 102, ROC).

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 561
RULE ON CUSTODY OF MINORS AND
WRIT OF HABEAS CORPUS IN 6'..'1'•qt.

RELATION TO CUSTODY OF
MINORS (AM 03-04-04-SC. APRIL 22,
2003)

sECTION 1. Applicability.—This rule shall apply to

petitions for custody of minors and writs of habeas corpus
in relation thereto.
The Rules of Court shall apply suppletorily.
Section 2. Petition for custody of minors; who may files—
A verified petition for the rightful custody of a minor may be
filed by any person claiming such right. The party against
whom it may be filed shall be designated as the respondent.

Section 3. Where to file petition.—The petition for custody of

minors shall be filed with the Family Court of the province or city
where the petitioner resides or where the minor may be found.

Section 4. Contents of petitions—The verified petition shall

allege the following:
(a) The personal circumstances of the petitioner and of
the respondent;
(b) The name, age and present whereabouts of the
minor and his or her relationship to the petitioner
and the respondent;
(c) The material operative facts constituting deprivæ
tion of custody; and
(d) Such other matters which are relevant to the custod
of the minor.
be accompanied by a cerwhich the petitioner must

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 The562
verified petition shallSPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
tificate against forum personal service on re. that the
shopping, sign personally. petition is sufit shall direct the
clerk of shall be served together on
Section 5, Summons;the respondent.
spondent.—lf the court is satisfied
Dismiss.—A motion to disexcept on
ficient in form and substance, court
to issue summons, which with the a ground of matter or over the
copy of the petition personally parwarrant the dismissal of
affirmative defense in the
Section 6, Motion to miss the
petition is not allowed lack of
jurisdiction over the subject Answer.—The respondent
Any other ground that might the personally verified by of
petition may be raised as an answer. summons and a copy

Section 7. Verified shall file

an answer to the petition, him, duty of social worker.— answer or
within five days after service of the expiration of order a social
the petition. worker to and the parties and to to
the court at least pre-trial.
Section 8. Case study; Upon the
filing of the verified the period to file
mandatory pre-trial.—Within
it, the court may make a case study answer
of or the expiration court
the minor submit a report and shall issue an order: conference;
recommendation three days before the (2) directing respective pre-trial
scheduled briefs receipt thereof by the
Section 9. Notice of fifteen
adbefore the date of re-trial;
days after the filing of the of the 030404-SC

period to file answer, the

(1) fixing a date for the pre-trial
the parties to file and serve their and (3) requiring the respondent to
in such manner as shall ensure
present the minor be.
verse art at least three da s

The notice of its order shall

be served separately on the parties and their
respective counsels. The pre-

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 563
section 10. Contents Pre-

(a) A statement of the willingness of the parties to

enter into agreements that may be allowed by

(b) A concise statement of their respective claims

together with the applicable laws and authorities;
(c) Admitted facts and proposed stipulations of facts;
(d) The disputed factual and legal issues;
(e) All the evidence to be presented, briefly stating
or describing its nature and purpose;
(f) The number and names of the witnesses and their
respective affidavits which shall serve as the
affiant's testimony on direct examination; and
(g) Such other matters as the court may require to be
included in the pre-trial brief
Failure to file the pre-trial brief or to comply with
its required contents shall have the same effect as
failure to appear at the pre-trial.

Section 11, Effect of failure to appear at the pretrial.

—

(a) If the petitioner fails to appear personally at the

Pre-trial, the case shall be dismissed, unless his
counsel or a dul authorized re resentative a -

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564 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION

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 565
pears in court andproves a valid excuse for the petitioner.
non-appearance of
the filed his answer but fails to the petitioner
shall be evidence ex parte. The court
(b) If the respondent hasjudgment on the basis of the evidence thus
appear at the pre-trial,presented,
lowed to present his
shall then render be done at pre-trial.—At agree on the
pleadings and the
custody of the the court may refer the have
five days to effect an If the issue is not
Section 12. What may the pre-
settled shall proceed with the preit shall
trial, the parties may minor. If the
parties fail to agree, matter to consider
a such prompt disposition of the
mediator who shall agreement
between the parties. through
order awarding custody.— or after
mediation, the court trial conference,
on which occasion other matters as expiration of the issue a provisional order
may aid in the petition. As far as practicable, the shall be
observed in the
Section 13. Provisional
After an answer has been filed
period to file it, the court may
awarding custody of the minor. into account all relevant the choice of the
following order of preference minor age and of sufficient disparent
award of custody: chosen is unfit;
(a) Both parents jointly; there are several grandchosen by the
(b) Either parent, takingminor age and of sufficient
considerations, disgrandparent chosen is unfit
especially over seven0304-04-sc
years of cernment, unless
the
(c) The grandparent, or if The eldest brother or sister over
parents, the grandparent twenty-one years of age, unless he or
she is unfit or disquali-
over seven years of
cernment, unless the or
dis ualified; (e) The actual custodian of the minor over
twenty-
one years of age, unless the former is unfit or

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566 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
(0 Any other person or institution the court may deem suitable
to provide proper care and guid-

section 14. Factors to consider in determining custody.

—ln awarding custody, the court shall consider the best
interests of the minor and shall give paramount
consideration to his material and moral welfare. The best
interests of the minor refer to the totality of the
circumstances and conditions as are most congenial to the
survival, protection, and feelings of security of the minor
encouraging to his physical, psychological and emotional
development. It also means the least detrimental available
alternative for safeguarding the growth and development
of the minor.
The court shall also consider the following:
(a) Any extrajudicial agreement which the parties may
have bound themselves to comply with respecting the
rights of the minor to maintain direct contact with the
non-custodial parent on a regular basis, except when
there is an existing threat or danger of physical,
mental, sexual or emotional violence which endangers
the safety and best interests of the minor;
(b) The desire and ability of one parent to foster an open
and loving relationship between the minor and the
other arent;

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 568 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

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

(d) Any history of child or spousal abuse by the per. son
seeking custody or who has had any filial
relationship with the minor, including anyone court.
ing the parent,
(e) The nature and frequency of contact with both
parents,
(f) Habitual use of alcohol, dangerous drugs or
regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual,
psychological and educational environment for the
holistic development and growth of the minor; and
(i) The preference of the minor over seven years of
age and of sufficient discernment, unless the
parent chosen is unfit.
Section 15. Temporary visitation rights.—The
court shall provide in its order awarding
provisional custody appropriate visitation rights to
the non-custodial parent or parents, unless the
court finds said parent or parents unfit or
disqualified.
The temporary custodian shall give the court and
noncustodial parent or parents at least five days'
notice of any plan to change the residence of the
minor or take him out of his residence for more
than three days provided it does not prejudice the
visitation rights of the non-custodial parent or
parents.

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 569
Section 16, Hold Departure Order—The minor child sub'ect of
the etition shall not be brou ht out of the
904-SC

country without prior order from the court while the petition
pending
The court, motu proprio or upon application under oath, may
issue ex parte a hold departure order, addressed to the Bureau of
Immigration and Deportation, directing it not to allow the
departure of the minor from the philippines without the
permission of the court.
The Family Court issuing the hold departure order shall
furnish the Department of Foreign Affairs and the Bureau of
Immigration and Deportation of the Department of Justice a
copy of the hold departure order within twentyfour hours
from its issuance and through the fastest available means of
transmittal.

The hold departure order shall contain the following

information:

(a) The complete name (including the middle name),

the date and place of birth, the nationality and the
place of last residence of the person against whom a
hold departure order has been issued or whose
departure from the country has been enjoined;

(b) The complete title and docket number of the case in

which the hold departure order was issued;
(c) The specific nature of the case;
(d) The date of the hold departure order, and
(e) A recent photograph, 'if available, of the party against
whom a hold departure order has been issued or Whose
departure from the country has

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 570 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N
The court may recall the hold departure order motu o rio,
or u on verifie'd motion of an of the arties after

EXPOSITION
566

summary hearing, subject to such terms and conditions as

may be necessary for the best interests of the minor.
Section 17. Protection Order.—The court may is.
sue a Protection Order requiring any person:
(a) To stay away from the home, school,
business, or place of employment of the
minor, other parent or any other party, or
from any other specific place designated by
the court;
(b) To cease and desist from harassing,
intimidating, or threatening such minor or the
other parent or any person to whom custody
of the minor is awarded;
(c) To refrain from acts of commission or
omission that create an unreasonable risk to
the health, safety, or welfare of the minor;
(d) To permit a parent, or a party entitled to
visitation by a court order or a separation
agreement, to visit the minor at stated
periods;
(e) To permit a designated party to enter the
residence during a specified period of time in
order to take personal belongings not
contested in a proceeding pending with the
Family Court; and
(f) To comply with such other orders as are
necessary for the protection of the minor.

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 to any suitable

either or both
for 571the support,
Section 18. Judgment.—After trial, the irrespective of the
court shall render judgment awarding the amount of factors:
custody of the minor to the proper party (1) and non-
considering the best interests of the min or. custodial physical
If it appears that both parties are unfit and
to emoof the
have the care and custody of the minor, the minor; (3)
court may designate either the paternal accustomed
or to;
maternal grandparent of the minor, or his that the parents of
oldest brother or sister, or an re utable erson
the minor.
to
AM 0304-04-SC
that is just and
take charge of such minor, Or commit deprived of the
have temporary
him nome for children.
In its judgment, the court may order
parents to give an amount necessary
maintenance and education of the
minor, who may be its custodian. In
determining support, the court may from the decision
filed a motion for
consider the following the financial days from
resources of the custodial parent and notice
those of the minor; (2) the tional
health, special needs, and aptitude the
standard of living the minor has been
and (4) the non-monetary contributions
would make toward the care and well-
being
The court may also issue any order
reasonable permitting the parent who is of
care and custody of the minor to visit or
from the decision by
custody. days from notice or
new trial parties.
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 572 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

Section 19. Appeal.—No appeal shall be

allowed unless the appellant has
reconsideration or new trial within fifteen of
judgment.
An aggrieved party may appeal filing a
Notice of Appeal within fifteen the denial of
the motion for reconsideration and serving a
copy thereof on the adverse
Section 20. Petition for wrjt Of A Verified
petition for a writ of habeas custody of minors shall
be filed with Writ shall be enforceable Within •its

the Family Court belongs.

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 However, the petition may be filed with the court 573
in the absence of the presiding judge of the Court, regular Family refer
provided, however, that the regular court shall the case judge
to the Family Court as soon as its presiding returns to
duty.
The petition may also be filed with the appropriate
regular courts in places where there are no Family Courts.
they
The writ issued by the Family Court or the regular
court shall be enforceable in the judicial region where
belong.
if the
The petition may likewise be filed with the Supreme
Court, Court of Appeals, or with any of its members and, so
granted, the writ shall be enforceable anywhere inthe for
Philippines. The writ may be made returnable to a Family
Court or to any regular court within the region where is-
petitioner resides or where the minor may be found hearing
and decision on the merits.
Upon return of the writ, the court shall decide the sue
on custody of minors. The appellate court, or the member
thereof, issuing the writ shall be furnished a copy of the
decision.

Section 21. Confidentiality of proceedings.—The

hearings on custody of minors may, at the discretion of
the court, be closed to the public and the records of the
case shall not be released to non-parties without its
approval.

Section 22. Effectivity.—This Rule shall take effect

on May 15, 2003 following its publication in a newsa er of
eneral circulation not later than A ril 30, 2003.

RULE ON CUSTODY OF MINORS

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 574 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

AND WRIT OF HABEAS CORPUS

IN RELATION To CUSTODY OF MINORS (AM 03-04-04-
SC. APRIL 22, 2003)

sECTION AM 03-04-04-SC. APPLICABILITY

Application of the Rule

The Rule on Custody of Minors and Writ of Habeas

corpus in Relation to Custody of Minors (AM 03-04-
04SC. Apr. 22, 2003) shall apply to petitions for custody
of minors and writs of habeas corpus in relation thereto.
The Rules of Court shall apply suppletorily.

SECTION 2 AM 03-04-04-SC. PETITION FOR

CUSTODY OF MINORS; WHO MA Y FILE
Petition may be filed by any person
claiming right to custody
A verified petition for the rightful custody of a minor may be
filed by any person claiming such right. The party against whom
it may be filed shall be designated as the respondent.

SECTION 3 AM 03-04-04-SC. WHERE TO FILE PETITION

Petition to be filed with the Family Court

The petition for custody of minors shall be filed with the
Family Court (RTC) of the province or city where the
Petitioner resides or where the minor may be found.
SECTION 4 AM 03-04-04-SC. CONTENTS OF
PETITION
Allegations in the verified petition
The verified petition shall allege the following:
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 575
(1) The personal circumstances of the petitioner and of
the respondent;
(2) The name, age and present whereabouts of the
minor and his or her relationship to the petitioner
and the respondent;
(3) The material operative facts constituting deprivation of
custody; and
(4) Such other matters which are relevant to the custody of
the minor,

Certificate against forum shopping to

accompany petition
The verified petition shall be accompanied by certificate
aqainst forum shopping which the petitioner must sign
personally.

SECTION 5, AM 03-04-04-SC. SUMMONS;

PERSONAL SERVICE ON RESPONDENT

Issuance of summons
If the court is satisfied that the petition is sufficient in form
and substance, it shall direct the clerk of court to issue summons
which shall be served togethér with a COPY of the petition
personally on the respondent.
SECTION 6 AM 03-04-04-SC. MOTION To DISMISS

Motion to dismiss the petition not allowed;

exception
A motion to dismiss the petition is not allowed æm on the
ground of lack of jurisdiction over the subject matter or over
the parties. Any other ground that might warrant the dismissal
of the petition may be raised as an affirma-

SECTION 7 AM 03-04-04-SC. VERIFIED ANSWER

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 576 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

Respondent to file verified answer to petition

The respondent shall file an answer to the petition,

personally verified by him, within five €3)after service of
the summons and a copy of the petition.
SECTION 8 AM 03-04-04-SC. CASE STUDY, DUTY OF
SOCIAL WORKER

Case Studfof the minor

Upon the filing of the verified answer or the expiration of
the period to file it, the court may order a social worker to
make a case study of the minor and the parties and to su it a
report and recommendation to the court at least

SECTION 9 AM 03-04-04-SC. NOTICE OF MANDA

TORY PRE-TRIAL

Order for pre-trial conference

Within fifteen 15) days after the filing of the answer or
the expiration of the period to file answer, the court shall
issue an order:
fixinq a date for the pre-trial conference;
(2) directing the parties to file and serve their respective pre-
trial briefs in such manner as shall ensure receipt thereof
by the adverse party at least three days before the date of
pre-trial; and
(9) requiring the respondent to present the minor before the
court.

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 577
The notice of its order shall be served separately on both the
parties and their respective counsels. The pre trial is mandatory.

SECTION AM 03-04-04-SC. CONTENTS OF PRE. TRIAL

BRIEF
Required contents of the pre-trial brief
The pre-trial brief shall contain the following:
(a) A statement of the willingness of the parties to enter into
agreements that may be allowed by law, indicating its
terms;
(b) A concise statement of their respective claims to gether
with the applicable laws and authorities; (c) Admitted
facts and proposed stipulations of facts;
(d) The disputed factual and legal issues;
All the evidence to be presented, briefly stating or
describing its nature and purpose;
(f) The number and names of the witnesses and their
respective affidavits which shall serve as th e affiant's
testimony on direct examination; and

(g) Such other matters as the court may require to be included

in the pre-trial brief.

Effect of failure to file the pre-trial brief or

comply with required contents
The fallure-.iQ..fila.-ihe-p-r.edual.-briei

its required contents shall have the same or to effect

comply asT1ewith failure to appear at the pre-trial..

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 578 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N
SECTION AM 03-04-04-SC. EFFECT OF FAILURE
TO APPEAR AT THE PRE-TRIAL

consequence of the parties' inability 4 c.q,z to appear

in person at the pre-trial
If the petitioner fails to appear personally at the pre trial, the
case shall be dismissed his "sel or a duly authorized
.<esentative appears in court and
proves a the
petitimer. rance of

* If the €ÖUöDhas filed his answer but pear at the pre-trial,

the petitioner shall be allowed to present his evidence ex
parte. The court shall then render judgment on the basis of
the pleadings and the evidence thus presented.

SECTION 12 AM 03-04-04-SC. WHAT MAY BE DONE

AT PRE-TRIAL

Agreement during the pre-trial; referral to

mediator
At the pre-trial, the parties may agree on the custody of
the minor.
If the rties fail to a re the court may refer the,mat ter to a
mediator who shall have five (5) days to effect ån agreement
between the parties. If the issue is not settled through
mediation, the court shall
proceed with the pretrial
conference on which occasion it shall
consider such other matters as may
aid in the prompt disposition of the
petition.

SECTION 13 AM 03-04-04-SC. PROVISIONAL

ORDER AWARDING CUSTODY

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 579
Provisional court order awarding
custody of the minor
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.

CD Order of preference to be observed in

the award of custody
Whenever practicable, the following order of
preference shall be observed in the award of custody:

(2) Either parent. taking into account all relevant considerations,

especially the choice of the minor over seven ars of age and
of sufficient 7 discernment, nless the parent
c
chosen i unfit:
(3) The or if there are several grandparents, the
grandparent (Sh by the minor over seven 7 ears of age and of
sufficiefdiécernment, nless the grandparent chosen is unfit or
disqualified;

(4) The eldest brother or sister@twenty-one

21
years is unfit or disqua
i
fled;
(5) The actual custodian of the minor over twentyone
(21) years of age, unless the former is unfit or
disqualified; or
AM
030404$C

(6) Any other person or institution the court may deem

suitable to provide proper care and guid-

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 580 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

SECTION 14 AM 03-04-04-SC. FACTORS ro com

SIDER IN DETERMINING CUSTODY

Coud to consider the best interests of

the minor in awarding custody

In awarding custody, the court shall consider the best

interests of the minor and shall
consideration to his material
and moral welfare.
Best interests of the minor defined

The best interests of

the minor refer to

the:totality of the circumstances and conditions as are most
conqenial to the sudvalJ protection and feéfngs of security of
the minor encouraging to his physical, psychological and
emotional development. It also means available alternative
for safe ve opment of the minor.
Other factors to be considered by the court
The court shall also consider the following:

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 581
(a) Any extrajudicial agreement which the parties
may have bound themselves to comply with
respecting the rights of the minor to maintain
direct contact with the non-custodial parent on
a regular basis, except when there is an existing
threat or
danger of physical mental, sexual or emotional
violence which endangers the safety and best

interests of the minor;

(b) The desire and ability of one parent to foster an open

and loving relationship between the minor and the other
parent;

(c) The héKlth, safety and Afare of the(S),

(d) Any history of child or spousal abuse by the person
seeking custody or who has had any filial relationship
with the minor, including anyone courting the parent;
(e) The néfure and f6quency of GDwith both
parents;
(f) Ha6itual use of alcohol, däfigerous drugs or
F<ulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual,
psychological and educational environment for the
holistic development and growth of the minor; and
(i) The.préferénce of the minor—even (7blears of age
and of sufficient discernment,æythe parent chosen is
unfit.

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 582 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

SECTION 15 AM 03-04-04-SC. TEMPORARY

VISITATION RIGHTS

Provision of appropriate visitation rights to

the non-custodial parent/s

The court shall provide in its order awardihg pro vi sional

custody appropriate visitation rights to the
n
no custodial parent or unlesparents, the court finds said
parent or parents unfit or s disquali led.

$D11ty of temporary custodian to give

notice of change of residence of minor
The temporary custodian shall give the coüii and
noncustodial parent or parents at least five any plan-tm-Ghange-
the-res.dence of the minor a or s take notic himof out of his
residence for more than three 3 day , provided it righ s of the
non-

sECT/ON 16 AM 03-04-04-SC. HOLD DEPARTURE

ORDER

'hen court mayissue hold departure order

The minor child subject of the petition shall brought
out of the country without prior order from the court while the
petition is pendingJ1
The court, motu proprio or upon application under oath, may
issue exparte a hold departure order (HDO) addressed te the reau of
Immigration and Deportation BID directing it ot o allow the

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 583
departure of the minor rom the Philippines
withouTfhÖÖRiSSiöiÜöfthöööüFf7/
The Family Court issuing the hold departure order shall@the
Department of Foreign Affairs (MA) and the Bureau of
Immigration and Deportation of the Department of Justice DOJ-
BID a co of the hold departure order (HDO) ithin twenty-four
(24) hour from its issu ance and throug as est aval able means of
transmit-
e

Contents of the hold

departure order
The hold departure order (HDO) shall contain the

following information:
(I) The complete name (including the middle name), the
date and place of birth, the and the place of last
residence of the person against whom the HDO has
been issued or whose departure from the country has
been enjoined;
(2) The complete titlé and docket number of the case in
which the HDO was issued;
(3) The specific nature of the case;

(4) The date of the HDO; and

(5) A recent photograph, if available, of the party
has been issued or whose
departure from the country has been enjoined.

Recall of the hold departure order

The court may recall the HDO
mo u proprio or upon verified

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 584 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N
motion of any of the parties afte to such terms and essary for
the best interests of the

SECTION 17 AM 03-04-04-SC. PROTECTION ORDER

Court may issue order for the protection of the

minor
The court may issue a Protection Order (PO) requiring any
person:
(a) to ta awa from the hafie, sch601, business, ace of or

employment of th minor, othéfparent or any oth€i party or

from any o er specific place designated by the court;
(b) to häåssing,
or iffiöidating
the other parent
or
030404-sc

any person to whom custody of the minor is

(c) ' to Of commission Or omission that create an

unreasonable risk to the health, safety or welfare of
the minor;
(d) to permit a arent ora art entitled

by a court order or a se arati

visit the minor at stated p*öö-qn-agre.e.m.enj to
to
(e) dence durin a s ecified eriod of time in order to ta
e personal belongings not contested in a proceeding
pending with the Family Court; and
(f) to comply with such other orders as are neces-
sary for the protection of the minor.

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 585
SECTION 18, AM 03-04-04-SC. JUDGMENT

Rendition ofjudgment awarding custody ofthe

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

If, it appears that both parties are unfit to have the care
and custody of the minor,uhe CQ.U-d.-nay-dægnaie either
the paternal or maternal qrandparent of the minor, or
his oldest brother or sister or any reputable person to
take charge of such minor or commit him to any suitable
home for children,]

Order in the judgment for the support,

maintenance and education of the minor
The court, in its judgment, may order either or both
Parents to give an amoun necessary for the support,

aintenance and edåcation of the minor irrespective of who

may be its custodian,

C)Factors to be considered in determining the

amount of support
In determining the amount of support, the court may
consider the following factors:

(1) the financial resources of the dstodial and

custodial parent and those of the minor;

(2) the PhElgaL.and-e-m.QiiQnaLbeaLth, special needs and

aptitude of
(3) the standard of livinq to which the has been
accustomed; and

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 586 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSIT10N

(4) the non-monetary contributions that the parents

would make toward the care and well-being of the
minor.
Court may order allowing a parent
visitation rights or temporary custody of
the minor child
The court may likewise issue a just and reasonable order
permitting the parent who is deprived of the care and custody
of the minor to visit or have temporary custody.

SECTION 19, AM 03-04-04-SC. APPEAL

Motion for reconsideration a precondition

for allowance of appeal
No appeal rom the decision shall be allowedZ the appe as fil a
motion for an reconsideration or new trial within fifteen 15 da
from notice of judgment.
An aggrieved party may appeal fro decision by filing a
Notice of Appeal within fifteen 15) da from no-

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 593

03-04-04-SC

581
enial
tice of the of the maion for reconsideration or n" trial
and serving a copy thereof on the adverse parties.
SECTION 20 AM 03-04-04-SC. PETITION FOR
WRIT of HABEAS CORPUS

Where to file petition for writ of habeas corpus

involving custody of minors
A verified petition for a writ of habeas
cor us involvin custody of minors; shall be
filed with the amil Court its
(RTC). The writ shall be enforceable within judicial
regjgLto which the Family Court belongs.
However, the petition may be filed with the reqular
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 et ns to du
The petition may also be filed with the appropriate regular
courts in places where there are no Family Courts.

Writ where enforceable

The writ issued b the Family Court or the regular court shall
be enforceabl in the judicial region where such court belongs.
preme The petition may likewise be filed with the Court, Cofof
Appeals or with an of its members and, if so granted, the writ
shall be nforceab an here in the Philippines. The writ may be
made eturnabl to a Family

gourt or to any regular court within e region where the

Petitioner resides or where the minor may be found for hearing
and decision on the merits.

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 594
Upon return of the writ, the court shall decide the issue
On custody of minors. The appellate court or the
member thereof issuing the writ shall be furnished a copy of the
decision,

SECTION 21 AM 03-04-04-SC. CONFIDENTIALITY

OF PROCEEDINGS
Hearings on custody of minors and release of
case records to non-patties a writ of
whose right
The hearings on custody of minors may, at the
with
discretion of the court, be closed-to-the-public and
official
the r cords of the case shall not-be-.ce.le.ased.-tQ--
non:par.tie ithout s approval
enforced
SECTION 22 AM 03-04-04-SC. EFFECTIVITY
Effectivity of the Rule be filed
The Rule on Custody of Minors and Writ of or entity
Habeas
Corpus in Relation to Custody of Minors (AM 03- namely:
04-04SC) took effect on May 15, 2003 following itsthe
publication in a newspaper of general circulation. aggrieved
07.9.12SC
583
relative
civil
THE RULE ON THE WRIT OF AMPARO dedefault
of or
(AM 07-9-12-SC. 25 sept. 2007)
associatio
sECTION 1. Petitions—The petition for n of the
Amparo is a remedy available to any person to aggrieve
d
life, liberty and security is violated or
threatened violation by an unlawful act or
omission of a public or employee, or of a party
private individual or entity. susfile
The writ shall cover extralegal killings similar
and an
disappearances or threats thereof. authorsuspen
ds the
herein.
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be filed
 595
SEC. 2. Who May File.—The petition may by
the aggrieved party or by any qualified person in
the following order:
(a) Any member of the immediate family,
spouse, children and parents of the party;
(b) Any ascendant, descendant or collateral of
the aggrieved party within the fourth gree of
consanguinity or affinity, in those
mentioned in the preceding paragraph;
(c) Any concerned citizen, organization, or
institution, if there is no known member
immediate family or relative of the p=rty.
The filing of a petition by the aggrieved
Pends the right of all other authorized parties to
Petitions, Likewise, the filing of the petition by
ized party on behalf of the aggrieved party right
of all others, observing the order established

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 596

SEC. 3. Where to File.—The petition

may
Onoran da and at an time
of the place where the threat, act or omission was ted
with the Re ional Trial
any of its elements occurred, or with the Sandiganbayan,
the Court of Appeals, the Supreme Court, or justice Court
of Commit-
such courts. The writ shall be enforceable where in the
Philippines. any any-
of the
When issued by a Regional Trial Court or any
judge or agwith
thereof, the writ shall be returnable before such court violation the
judge. respondent, is
of be- committed
When issued by the Sandiganbayan or the Court
detailed in sup-
Appeals or any of their justices, it may be returnable fore
such court or any justice thereof, or to any Regional Trial
Court of the place where the threat, act or omission was any, specifying
committed or any of its elements occurred. jusjustice ApTrial and ador
was individuconduct
When issued by the Supreme Court or any of its of the in-
tices, it may be returnable before such Court or any
thereof, or before the Sandiganbayan or the Court of be lawful judge
peals or any of their justices, or to any Regional by the
Court of the place where the threat, act or omission petitioner of the
committed or any of its elements occurred. agthe person
shall
reomission; and
SEC. 4. No Docket Fees.—The petitioner shall
exempted from the payment of the docket and other prayer for other
fees when filing the petition. The court, justice or reomisthe
shall docket the petition and act upon it immediately. 07.9.f2-sc
the filing of
SEC. 5. Contents of Petition.—The petition be 585
shall immediately
signed and verified and shall allege the following: it ought to
c, The right isunder the seal
a. The personal circumstances of the petitioner; b. to life, the justice or her
The name and personal circumstances of the own hand, serve
liberty
spondent responsible for the threat, act or sion, or, if it.
and
the name is unknown or uncertain, respondent may security time for summary
be described by an assumed a ellation; grieved later than seven
party
Issue
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issue the writ
 597
violated or threatened by an unlawful act
or omission of and how such threat or
violation with the attendant circumstances

d. The investigation conducted, if the

names, personal circumstances, dresses
of the investigating authority als, as well
as the manner and vestigation, together
with any report;
e. The actions and recourses taken to
determine the fate or whereabouts grieved
party and the identity of sponsible for the
threat, act or
f. The relief prayed for.
The petition may include a general just and equitable
reliefs.

SEC. 6. Issuance of the Writ.—Upon the

petition, the court, justice or judge order the
issuance of the writ if on its face sue. The clerk
of court shall issue the writ of the court; or in
case of urgent necessity, the judge may issue the
writ under his or and may deputize any officer
or person to
The writ shall also set the date and hearing of the
petition which shall not be (7) days from the date of its
issuance.

SEC. 7. Penalty for Refusing to the Writ.—A clerk of

court who refuses after its allowance, or a de utized erson
who refuses to
punished by the court, justice or prejudice to other disciplinary

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serve the same, shall be
judge for contempt
without actions. SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 598
SEC. 8. How the beWrit is Sewed.—The writ shall respondent by a judicial
served upon the person officer or by a court, justice or judge who shall make a
deputized by the retain return
a of service. In case personally on the respondent,
copy on which to the writ service shall apply.
cannot be served the rules
on substituted Contents.—Within seventy-two of the writ, the respondent
shall together with supporting affidaother things, contain the
SEC. 9. Return; (72) following:
hours after service file a
verified written return vits to show that the 'respondent or threaten with
which shall, among violation the right security of the aggrieved party, or
omission;
a. The lawful
defenses did not actions taken by the respondent to fate or
violate to life, whereabouts of the agthe person or persons
liberty and responact or omission;
through any act
information in the possession of the pertaining to the
b. The steps orthreat, act or omisaggrieved party; and is a public
determine theofficial or employee, further state the actions that havewell
grieved partybe taken: have
and identity of the aggrieved party;
Sible for the threat,
and preserve evidence related to or disappearance ofper-
c. All relevantthe person the etition which ma aid in the
respondent sion
against the 587

d. If the respondent prosecution of the person or persons re-

a
the return shall
to
been or will still
iii. to identify witnesses and obtain statements from the
i. to verify them concerning the death or disap-
the
shall
ii. to recover 'iv. to determine the cause, manner, location and time
the death of death or disappearance as as any pattern or
identified practice that may brought about the death or
in disappearance;
v. to identify and apprehend the person or sons
involved in the death or disappearance; and
—
vit to bring the suspected offenders before
competent court.
opposi-
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 599
The return shall also state other matters relevant the
investigation, its resolution and the prosecution of
case,

A general denial of the allegations in the petition 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: Motion to
dismiss;
Motion for extension of time to file return, tion,
affidavit, position paper and other pleadings;
c. Dilatory motion for postponement;
Motion for a bill of articulars;

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 600

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 pane.
SEC. 13. Summary Hearing.—The hearing on the
petition shall be summary. However, the court, justice
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 motu proprio, may order
that the petitioner or the aggrieved party and any
member of the immediate family be protected in a
overnment a enc or b an accredited erson

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 601

589

or private institution capable of keeping and

securing their safety. If the petitioner is an tion,organiza
association or institution referred lion 3(c) ofto in
this Rule, the protection may tended to theSecbe
officers involved. ex-
The Supreme Court shall accredit the private
institutions that shall extend temporary to persons
the and
petitioner or the aggrieved party and any theprotection
immediate family, in accordance with guidelinesmember of
it shall issue. which
The accredited persons and private
institutions comply with the rules and shall
conditions that may be by the court, justice imposed
or judge.
(b) Inspection Order.—The court, justice or judge,
hearing, may
upon verified motion and after due control of a
order any person in possession permit or entry
designated land or other property, to surveyreleva
for
the purpose of inspecting, measuring, nt
ing, or photographing the property or
any object or operation thereon.
places to
The motion shall state in detail the place or or testiof
b
e inspected. It shall be supported by affidavits the
monies of witnesses having personal aggrieve
knowledge enforced disappearance or d
whereabouts of the party.

If the motion is opposed on the ground ofnational

seinformation,
curity or of ihe privileged nature of the court,
justice or judge may conduct a hearing the chambers
in to
determine the merit of the opposition,
order is
party
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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 602
The inspection order shall specify the person or The movant must
sons authorized to make the inspection and the date, show that the
place and manner of making the inspection and may inspection necessary to
scribe other conditions to protect the constitutional of establish the right of
all parties. The order shall expire five (5) days after the aggrieved aile ed to
date of its issuance, unless extended for justifiable be threatened or
sons.
violated.
(c) Production Order.—The court, justice or uponpertime, prerights the rea-
verified motion and after due hearing, order any
person in possession, custody or trol of any
judge, may conbooks, tangi-
designated documents, papers, accounts, letters,
photographs, objects or ble things, or objects in to
digitized or electronic form, which constitutereleand
or Reand
contain evidence vant to the petition or the issue an
return, to produce permit their inspection, (b)
copying or photographing by or on behalf of the nainformaconduct oppo-
movant.
shall
The motion may be opposed on the ground of condi- havresponde
tional security or of the privileged nature of the tion, nt.
in which case the court, justice or judge may a hearing
in chambers to determine the merit of the sition. or refer for Act
or judge
The court, justice or judge shall prescribe other a return,
wit
tions to protect the constitutional rights of all the - otherwise
parties. 07&12-SC court to
591 impris-
(d) Witness Protection Order.—The court, justice
judge, upon motion or motu proprio, may the
persons or private institutions
witnesses to the Department of Justice admission of
to the Witness Protection, Security and Benefit
capable of keeping and Dilicla
Program, pursuant to Republic No. 6981.
securing their safety. ims
The court, justice or judge may also refer the nesses to
SEC. 15. Availability of
other overnment a encies, or to accredited
Interim Reliefs spondent, or entity
—Upon verified motion of applicat
the respondent after due hearing, the court, justice or judge he per-
may inspection order or production order under
paragraphs and (c) of the preceding section.
employee
A motion for inspection order under this section be required by
supported by affidavits or testimonies of witnesses ing in the
personal knowledge of the defenses of the
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inregula
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rly
 603
SEC. 16. Contempt.—The court, justice may
order the respondent who refuses to make or who
makes a false return, or any person who disobeys
or resists a lawful process or order of the be
punished for contempt. The contemnor may be
oned or imposed a fine.
SEC. 17. Burden of Proof and Standard gence
Required.—The parties shall establish their by
substantial evidence.
The respondent who is a private individual must
prove that ordinary diligence as required by ble laws,
rules and regulations was observed in formance of
duty.
The respondent who is a public official or must prove
that extraordinary diligence as aPpIicable laws, rules and
regulations was observed performance of duty.
The respondent public official or employee voke the
presumption that official duty has been erformed to evade
res onsibilit or liabilit

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
SEC. 18. Judgment.—The EXPOSITION
court 604
shall render ment
within ten (10) days from the time the petition submitted judgis
for decision. If the allegations in the petition proven by are the and
substantial evidence, the court shall grant privilege of
the writ and such reliefs as may be proper appropriate; the Rule
otherwise, the privilege shall be denied.
SEC. 19. Appeal.—Any party may appeal from days
final judgment or order to the Supreme Court under
45. The appeal may raise questions of fact or law or
both. ha-
sepath
The period of appeal shall be five (5) working from e
the date of notice of the adverse judgment.
if
The appeal shall be given the same priority as dis-
due
in beas corpus cases.
action
SEC. 20. Archiving and Revival of Cases.--The court made mo-
shall not dismiss the petition, but shall archive it, upon its the
determination it cannot proceed for a valid cause such as
the failure of petitioner or witnesses to appear to threats are
on their lives. of ar-
lat-
A periodic review of the archived cases shall be bythe of
the amparo court that shall, motu proprio or upon tion by Rul
any party, order their revival when ready for further e in
proceedings. The petition shall be dismissed with This
prejudice upon failure to prosecute the case after the lapse civil
not
two (2) years from notice to the petitioner of the order
chiving the case.
The clerks of court shall submit to the Office of Court07-9.12.SC of
Administrator a consolidated list of archived cases under
this Rule not later than the first week of January every inso
year. -
or administrative actions.
SEC. 21. Institution of Separate Actions.— SEC. 22. Effect of Filing
Rule shall not reclude the filin of se arate criminal, of a Criminal Action.— when an
a criminal action has been d in
commenced, no rate petition for the writ shall be filed. The
the
reliefs under writ shall be available by motion in the criminal
case,
o
n
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(3
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)
 605
The procedure under this Rule shall govern the
position of the reliefs available under the writ of amparo.
SEC. 23. Consolidation.—When a criminal is filed
subsequent to the filing of a petition for the writ, latter shall
be consolidated with the criminal action.
When a criminal action and a separate civil action filed
subsequent to a petition for a writ of amparo, the ter shall
be consolidated with the criminal action,
After consolidation, the procedure under this shall
continue to apply to the disposition of the reliefs the
petition.
SEC. 24. Substantive Rights.—This Rule shall
diminish, increase or modify substantive rights recognized
and protected by the Constitution.
SEC. 25. Suppletory Application of the Rules Court.
—The Rules of Court shall apply suppletorily far as it
is not inconsistent with this Rule.
SEC. 26. Applicability to Pending Cases.—This
Rule shall govern cases involving extralegal killings
enforced disappearances or threats thereof pending trial
and appellate courts.
SEC. 27. Effectivity.—This Rule shall take effect
October 24, 2007, following its publication in three
news a ers of eneral circulation.
THE RULE ON THE WRIT OF AMPARO
(AM 07-9-12-SC. 25 sept. 2007)
SECTION AM 07-9-12-SC. PETITION
Purpose of the Rule
AM 07-9-12-SC or The Rule on the Writ of Amparo (or
Amparo Rule, for brevity) was promulgated to arrest the
rampant extralegal killings and enforced disappearances in the
country. Its€@is to provide an expeditious and effective relief
to any person whose right to,lifé, liberty and security is
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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 606
violated or threatened with violation by an unlawful act
07665iGiöööfäöü6fic official or employee, or of a private
individual or entity
Petition for writ of amparo; coverage
The petition for a writ ot amparo is a remedy available to
any person whose right to,åffe, libérty 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.

Enforced disappearances and Enforced or

involuntary disappearance of persons
defined
"Enforced disappearances" is defined as the afrest,
detention, abduction or any other form of deprivation of liberty
by agents of the Sta e or by persons or groups of persons ac Ing
Wit the authorization, support or acquiescence of the State
followed by a refusal to acknowledg e the deprivation of liberty
or by concealment of the fa e or

whereabOUtS of the disappeared person which lace

such

a Tågit/S, . ec. 3, 2009, 606 SCRA (Razon, 598).Jr. v.

"Enforced or involuntary dipppearance of personS", on
the other hand, means the arrest, défention; or-abduction of
persons by, or with the authorization, support or
acquiescence of, a State or a political organization followed
by a refusal to acknowledge that deprivation of freedom or to
give o ose persons Wit t e intention of removin from the pr e
Ion rolon ed eriod of time (Sec. 3(g), RA 9851).
of e law for
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a
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 607
In probing enforced disappearance cases, courts
should now read AM 07-9-12-SC in relation to Republic
Act No, 9851.
DElements of enforced disappearance

From the statutory definition of enforced

disappearance, the elements that constitute it are as
follows:
(a) that there be an afrest, "tention, abduction or any
form of deprivation of liberty;
(b) that it be carried out by, or with the authorization,
supiort or acquiescence of, the CäÄÄlÉ> cal
organization;
(c) that it be followed by the State or political organizations
refusal to acknowledge or give information on the fate
or whereabouts of the person subject of the
Amparo petition; and'

(d) that the inientjQn.-fQ.-.-r such -------.---—refusal is

to remove subject person from the protection of the
law for a prolonged period of time (Navia v.
Pardico, GR 134467, June 19, 2012, 673
SCRA 68).
Government involvement in the
disappearance an indispensablå element
Under Section 1 of AM 07-9-12-SC, a writ of amparo
may lie against a private individual or entity. But even if the
person sought to be held accountable or responsible in an
amparo petition is a private individual or entity, still,
government involvement in the disappearance remains an
indispensable element.

SECTION 2 AM 07-9-12-SC. WHO MAY FILE

Persons who may file the petition

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 608
The petition may be filed:
(1) by the aqqrieved party; or
(2) qualified person or entity in the following
or Il order: I
(a) Any member of- the immediate family, namely:
(i) the sfouse of the aggrieved party;
(ii) children of the aggrieved party; and
(iii) frents of the aggrieved party;
(b) Any ascendant, descendant or» collateral
relative of the aggrieved party within the
fourth (4th) civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph; or
(c) Any concerned citizen, organization, asso ciation
or institution if there is member of the immediate
family or relative of the aggrieved party.

suspension of the right of other authorized

parties to file similacpgtiti9ns
The filing of a petition by the a"rtrieved art sugpends the
riqht of atl other 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 in Section 2 of
AM 07-9-12-SC, secTION3 AM 07-9-12-SC. WHERE To FILE

When and where to file the petition

The petition may be filed on any day and at any time
with:

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 609
(a) the Regional Trial Court of the place where the
threat, act or omission was committed or any of its
elements occurred;
(b) the Sandiqanbayan or any of its justices; (c) the
Court of Appeals or any of its justices; or
(d) the Supreme Court or any of its justicey_l

Where the writ shall be enforced and returned

The writ shall be enforceable an here in the Philippines.
Whena(ssued by a Regional Trial Court or any judge
thereof, the writ shall be@!@@>@before such court or
ly.Qe.

When issued by the Sandiganbayan or the Court of

Appeals or any of their justices, the writ may be able:
(1) before such court or any justice thereof; or
(2) to any Regional Trial Court of the place where the
threat, act or omission was committed or any of its
elements occurred,
When issued b the Supreme Court or any of its justices,
it may be eturnable.
(a) before such Court or any of its justire•
(b) before the Sandiganbayan or any of its justices;
(c) before the Court of Appeals or any of its justices; or
(d) to any Regional Trial Court of the place where the
threat, act or omission was committed or any of its
elements occurred.

SECTION 4 AM 07-9-12-SC. NO DOCKET FEES

Exemption from payment of docket and other
lawful fees
When filing the petition, the petitioner shall be exempted
from the payment of the docket and other lawful fees. The
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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 610
court, justice or judge shall docket the petition and act upon it
immediately.

SECTION 5, AM 07-9-12-SC. CONTENTS OF PETITION

Allegations in the petition

The petition shall be signed and verified and shall allege
the following:

(1) The personal circumstances of the

petitioner;
(2) The name and personal circumstances of
the respondent responsible for the
threat, act or omis-
sion or, if the ame is unknow or uncertain, the
respondent may be descri ed by an assumed
appellation;

(3) The ato lif< liWrty and sé€urity of the ag-

grieved party violated or threatened with violation by
an unlawful act or omission of the respondent n.4d and how
such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(4) The investigation conducted, if any, specifying
the names, personal circumstances and addresses of the
investigating authority or individu'cøerals, as well as the
manner and conduct of the in vestigation, together'
with any report;
(5) The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the ag grieved
party and the identity of the person re sponsible for the
threat, act or omission; and
(6) The relief prayed for.
The petition may include a general prayer for other
just and equitable reliefs.J

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 611
SECTION 6 AM 07-9-12-SC. ISSUANCE OF THE WRIT

Immediate 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.
Setting the date and time for summary
hearing of the petition
The writ shall also set the date and time for summary
hearing of the petition which shall not be later than Seven )
days from the date of its issuance.
SECTION 7 AM 07-9-12-SC. PENALTY FOR
REFUSING
TO ISSUE OR SERVE THE WRIT

Penalty for contempt for refusal to issue or

serve the writ OOC
A who refuses issue the writ after its allowance or a
deputized person who refuses to serve the same shall be
unished by the court, justice or judge for o!hec-
disc.Lpling.cy-actiQQs.

SECTION 8 AM 07-9-12-SC. HOW THE WRIT IS

SERVED
Service of the writ on the respondent
pua.Or%
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 the event that the writ cannot be served personally on the
respondent, the rules on $1 lhstitllted service shall apply.

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 612

SECTION 9. AM 07-9-12-SC, RETURN: CONTENTS

Verified written return to be filed by respondent;

contents of the return
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:
07.9.f2SC

(a) The lawful defenses to show that the respondent did not
violate or threaten with violation the right 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
If the Irespondent is a public official or employe , the
return shall further state the actions that have been or will

still be taken:
(1) to verify the identity of the aggrieved party;
(2) to recouer.-.and-pr-.-s—--.--euidence related to the ßéath
or diSappearance of the person identified in the petition
which may aid in the prosecution of the person or
persons responsible;

(3) to identify witnesses and obtain statements from

them concerning the death or disappearance;
(4) to determine the cäüse, mähner, 16ation and .time of
death or Gappearance as well as any pattern or

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 613
practice that may have brought about the death or
disappearance;

(5) to identify and apprehend the person or persons

in.Y.Qlv-ed-.jn-!5e death or disäppearance; and
(6) to brinq 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.

General denial not permitted

A general denial of the allegations in the petition shall
not be allowed.
SECTION to AM 07-9-12-SC. DEFENSES NOT
PLEADED DEEMED WAIVED

Defenses not raised in the return considered

waived
All defenses shall be raised in the return; otherwise, they
shall be deemed waived.
SECTION AM 07-9-12-SC. PROHIBITED PLEADINGS AND
MOTIONS
Pleadings and motions that are not allowed

The following pleadings and motions are prohibited:

Motion to dismiss;
(2) Motion for extension of time to file return,
opposition, affidavit, position paper and other plead
ings;
(3) Dilatory motion for postponement;
(4) Motion for a bill of particulars;
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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 614
(5) Counterclaim or cross-claim;
(6) Third-party complaint;
(7) Reply;
(8) Motion to declare respondent in
default;
Intervention;
(10) Memorandum;
(11) Motion for reconsideration of
interlocutory orders or interim relief orders; and

(12) Petition for cediorari, mandamus or prohibition

against any interlocutory order.

SECTION 12 AM 07-9-12-SC. EFFECT OF FAILURE

To FILE RETURN
consequence of respondent's inability to
file a return
Should the respondent fail to file a return, the court,
justice or judge shall proceed to hearthe petition ex
parte.

SECTION 13 SUMMARY HEARING AM 07-9-12-SC

Summary hearing on the petition
The hearing on the petition shall be summary.
However, the court, justice or
the
•udge may
conference sm I issues
call for a preliminary
to and determine the
possibility of dbtaining stipulations
and afiissions from the parties.
The hearing shall be from day to day until completed and
given the priority as petitions for habeas corpus.
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 615

SECTION 14 AM 07-9-12-SC. INTERIM RELIEFS

Remedies that the court may grant
provisionally

Upon filing of the petition or at any time before final

judgment, the court, justice or judge may grant any of
the following reliefs:

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
604

(a) Temporary rotection Order (TPO);

(b) Inspection Order (10);
(c) Production Order (PO); and
(d) Witness Protection Order (WPO).
Temporary Protection Order

(TPO)
The court, justice or judge, upon motion or motu
proprio, may issue Temporary Protection Order (TPO) directing
that the petitioner or the aggrieved party and any Q..æamember of
the immediate family be protected _in a gov ernment 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 AM 07-9-
12-SC, the protection may be extended to the officers involved.

Accreditation of persons and private

institutions to extend temporary
protection to the petitioner or
aggrieved party
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 and conditions that may be imposed by

the court, justice or judge.

Inspection Order (10)

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 607
The court, justice or judge, upon verified motion and
after due hearing, may issue, Inspection Order (10) direct
the witnesses to the Department of Justice (DOJ) for
amission to the Witness Protection, Security and Benefit
p@gram 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.

SECTION 15 AM 07-9-12-SC. AVAILABILITY OF

INTERIM RELIEFS TO RESPONDENT

Issuance of Inspection Order (10) or

Production Order (PO)
Upon verified motion of the respondent and after due
hearing, the court, justice or judge may issue an inspectin
order or production order under paragraphs (b) and (c) of
Section. 14 of AM 07-9-12-SC.

A motion for inspection order under this section shall be

supported by affidavits or testimonies of witnesses having
personal knnwledge of the defenses of the respondent,

SECTION 16 AM 07-9-12-SC. CONTEMPT

Who may be punished for contempt

The court, justice or judge may order the following to be
punished for contempt:
(1) the respondent who réfuses to make åreturn;
(2) the respondent who makes a false return; or

(3) any persqn who otherwise disobeys or resists a

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 608 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION
lawful process dr order of the court.
The contemnor may be Imprisoned o im osed
SECTION 17 AM 07-9-12-SC. BURDEN OF PROOF
AND STANDARD OF DILIGENCE REQUIRED
Substantial required diligence
evidence and Invocation of the
presumption of
regularity in the
performance of official functions
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 nvoke
the presumption that official duty has been
regularly performed to evade responsibility or
liability, SECTION 18 AM 07-9-12-SC. JUDGMENT

Period of rendition of decision

The court shall render judgment within ten 10 days from
the time the petition is submitted for
decision. If t e allegations in the petition are proven
by substantial evi dence, the court shall grant the
privilege of the writ and such reliefs as may be proper
and appropriate; otherwise, the privilege shall be denied.

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 609

* The appeal shall be given the same priority as in ha-

sECTION 20 AM 07-9-12-SC. ARCHIVING AND

REVIVAL OF CASES
Petitions to be archived and revived
The court shall not dismis the petition but shall archive it
if, upon its determination, it cannot
proceed for a valid cause such as the failure of
petitioner or witnesses to appear due to threats on their livesJ/
Aeriodic review of the archived cases shall be made by the
amparo court that shall, motu proprio or upon motion by any
party, order their revival when ready for further proceedings.
The petition shall be dismissed with prejudice upon frosecute
the caseailure to after the lapse of two ) year from notice to
t e petitioner of the order archiving t e case.
The clerks of court shall submit to the Office of the Court
Administrator a consolidated list of archived cases under
the Amparo Rule not later than the first week of

January of every year.

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 610 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION
SECTION 21 AM 07-9-12-SC, INSTITUTION OF RA
TE ACTIONS
Filing of separate criminal, civil or administrative
actions not precluded

This Amparo Rule shall @preclude the filing of separate

cffminal, ci€il or administrative actions.

SECTION 22 AM 07-9-12-SC. EFFECT OF FILING OF A

CRIMINAL ACTION
No separate petition for the writ may be filed
when a criminal action is commenced
When a criminal action has been commenced, no separate
petition foi the writ shall be filed. The reliefs under the writ shall
be available by motion in the criminal case.
The procedure under this Rule shall govern the disposition
of the reliefs available under the writ of amparo.

SECTION 23 AM 07-9-12-SC. CONSOLIDA TION

Cons olidation of actions
When a ocriminal action is filed subse uent 'the filing of a
petition for the
writ, the latter shall be
consolidated with the criminal action.

When a criffi¯nal action and a-séöarate civil action are filed

subsequent to a petition for a writ of amparo, the lat: ter shall be
consolidated with the criminal action.
After consolidation, the procedure under the Amparo
Rule shall continue to apply to the disposition of the reliefs in
the petition,
SECTION 24 AM 07-9-12-SC. SUBSTANTIVE RIGHTS
No diminution, enlargement or modification
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 611

of substantive rights

The Amparo Rule shall@diffiinish, inæease Of

mtjcf-
substantive -rights recogntzed and protected by the
Constitution.

SECTION 25 AM 07-9-12-SC. SUPPLETORY APPLI-

CATION OF THE RULES OF COURT
suppletory application of the Rules of Court
The-Rules of Court shall apply uppletori insofar as it is
not inconsistent with the Amparo u e.

SECTION 26 AM 07-9-12-SC. APPLICABILITY TO

PENDING CASES
Application of the Rule on pending cases
of extralegal killings and enforced
disappearances or threats thereof

The Amparo Rule shall govern cases involving

extralegal killings and enforced disappearances or threats
thereof pending in the trial and appellate courts.

SECTION 27 AM 07-9-12-SC. EFFECTIVITY

Effectivity of the Rule

The Amparo Rule took effect on October 24, 2007,

following its publication 'in three (3) newspapers of general
circulation.

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 THE RULE ON THE WRIT OF HABEAS
DATA (AM 08-1-16-SC. JAN. 22,
2008)
612 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION
habeas right to
SECTION 1. Habeas Data—The writ of data threatened
is a or em. in the
reof
remedy available to any person whose privacy in life,
liberty or security is violated or by an unlawful act or
omission of a public official ployee, or of a private
individual or entity engaged gathering, collectingmay or in
storing of data or information garding the person,
family, home and correspondence the aggrieved party.
the agand
SEC. 2. Who May File.—Any aggrieved party file a
petition for the writ of habeas data. However, cases of
extralegal killings and enforced disappearances, relative
the civil deof
petition may be filed by:
(a) Any member of the immediate family offiled or rethe collected
grieved party, namely: the spouse, children any judge
parents; or judge.
Court the es , Sandibefor
(b) Any ascendant, descendant or collateral of the e Trial
aggrieved party within the fourth gree of
rewhere
consanguinity or affinity, in default those os.l.tesc
mentioned in the preceding paragraph. stored.
of its
SEC. 3. Where to File.—The petition may be with jusjustice
the Regional Trial Court where the petitioner spondent SEC. 4. Where Sandigan
resides, or that which has jurisdiction over place where
Returnable; Enforceable.— Court
the data or information is gathered, or stored, at the
When the writ is issued by a resides, or
option of the petitioner.
Regional Trial Court or the data
The petition may also be filed with the Supreme thereof, it shall be returnable
or the Court of Appeals or the Sandiganbayan 'When before such court or any-
action concerns public data files of government offic When issued by
the Court of lawf
Appeals or the ul The
ganbayan or any of petiimm
its justices, it may eof from
be returnable such the
court or any justice
thereof, or to any Regional court of the place where the
petitioner or respondent sides, or that which has for a
jurisdiction over the place the data or information is
gathered, collected or and

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lib-
 613
When issued by the Supreme Court or any tices, it
may be returnable before such Court or any thereof, or
before the Court of Appeals or the bayan or any of its
justices, or to any Regional Trial of the place where the
petitioner or respondent that which has jurisdiction over
the place where or information is gathered, collected or
stored.
The writ of habeas data shall be enforceable where in
the Philippines.
SEC. 5. Docket Fees.—No docket and other fees shall be
required from an indigent petitioner. tion of the indigent shall
be docked and acted upon diately, without prejudice to
subsequent submission proof of indigency not later than
fifteen (15) days filing of the petition.

SEC. 6. Petition.—A verified written petition writ of

habeas data should contain:
(a) The personal circumstances of the petitioner the
respondent;
(b) The manner the right to privacy is threatened and how
it affects the right to ert or securit of thea rieved art

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 614 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION
petitioner
(c) The actions and recourses taken by the to
secure the data or information;
(d) The location of the files, registers orcharge, informa-
databases, the government office, and the
person in in possession or in control of theupof the inact
data or tion, if known;
(e) The reliefs prayed for, which may include equi-
the dating, rectification, suppression or
destruction the database or information or
files kept by respondent. In case of threats,of
the relief may clude a prayer for an order
enjoining the complained of; and isseal days
(f) Such other relevant reliefs as are just and jushand,
table.
SEC. 7. Issuance of the Writ.—Upon the filing the ten
petition, the court, justice or judge shall immediately
order the issuance of the writ if on its face it ought to sue.
The clerk of court shall issue the writ under the of Serve the writ to or
court and cause it to be served within three (3) from the
issuance; or, in case of urgent necessity, the tice or judge
may issue the writ under his or her own and may deputize AM 08.1-16-SC
any officer or person serve it.
The writ shall also set the date and time for summary
hearing of the petition which shall not be later than
(10) work days from the date of its issuance. SEC. 9. How
the writ is writ
SEC. 8. Penalty for Refusing to Issue or the Writ.—shall be served
A clerk of court who refuses to issue the after its upon the
allowance, or a deputized person who refuses serve the respondent by a
same, shall be punished by the court, justice judge for judicial officer or
contempt without prejudice to other disciplinary actions.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.
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 615
SEC. 10. Return; Contents.—The respondent shall file a
verified written return together with supporting affidavits
within five (5) working days from service of the writ, which
period may be reasonably extended by the Court for
justifiable reasons. The return shall, among other things,
contain the following:
(a) The lawful defenses such as national security, state
secrets, privileged communications, confidentiality of
the source of information of media and others;
(b) In case of respondent in charge, in possession or in
control of the data or information subject of the
petition;
(i) a disclosure of the data or information about the
petitioner, the nature of such data or
information, and the purpose for its collection;
(ii) the steps or actions taken by the respondent to
ensure the security and confidentiality of the data
or information; and,

(iii) the currency and accuracy of the data or

information held; and,
(c) Other allegations relevant to the resolution of the
proceeding.
A general denial of the allegations in the petition shall
not be allowed.

to
SEC. 11. Contempt.—The court, justice or judge may
punish with imprisonment or fine a respondent who commits
contempt by making a false return, or refusing make a return;
or any person who otherwise disobeys or resist a lawful
process or order of the court.
SEC. 12. When Defenses May be Heard in
Chambers.—A hearing in chambers may be conducted
where 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
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 616 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION

information cannot be divulged to the public due to its

nature or privileged character.
SEC. 13. 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;
respondent
(c) Dilatory motion for postponement; propetitio
(d) Motion for a bill of particulars; Counterclaim
ner court or
in
cross-claim;
(f) Third-party complaint;
on the
(g) Reply;
or the
(h) Motion to declare respondent in default; stipula
(i) Intervention; -
(j) Memorandum;
(k) Motion for reconsideration of interlocutory orders
render or
interim relief orders; and is are
the or a
Petition for certiorari, mandamus or prohibition
grant
ainst an interlocuto order. other-
08-f-16.sc

by
by
SEC. 14. Return; Filing—ln case the fails to file a
return, the court, justice or judge shall ceed to hear the
petition ex pane, granting the such relief as the
wh
petition may warrant unless the its discretion requires the
o days
petitioner to submit evidence.
court.
SEC. 15. Summaty Hearing.—The hearing proceedd
petition shall be summary. However, the court, atainspect
justice judge may call for a preliminary ed, on the
conference to simplify issues and determine the
possibility of obtaining tions and admissions from
judgment the
parties.
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 617
SEC. 16. Judgment.—The court shall judgment within ten
(10) days from the time the petition submitted for decision. If
the allegations in the petition proven by substantial evidence,
the court shall enjoin act complained of, or order the deletion,
destruction, rectification of the erroneous data or information
and other relevant reliefs as may be just and equitable; wise,
the privilege of the writ shall be denied.
Upon its finality, the judgment shall be enforced the
sheriff or any lawful officers as may be designated the
court, justice or judge within five (5) working days.
SEC. 17. Return of Service.—The officer executed
the final judgment shall, within three (3) from its
enforcement, make a verified return to the The return
shall contain a full statement of the ings under the writ
and a complete inventory of the base or information, or
documents and articles updated, rectified, or deleted, with
copies served petitioner and the respondent.
The officer shall state in the return how the was enforced and
com lied with b the res ondent, as

manner

both.
days
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 well as all objections
pre- of the parties regarding the
and regularity of the service of the writ.
SEC. 18. Hearing618on Officer's Return.—The
SPECIAL shall set the returnAN
PROCEEDINGS, forEXHAUSTIVE EXPOSITION
hearing with due notice to the ties and act accordingly.
action the
08-f-tæsc
SEC. 19. Appeal.—Any party may appeal from
final judgment or order to the Supreme Court under
45. The appeal may raise questions of fact or law or
are
criminal case.
the of appeal
the
The periodThe procedure shall be five
under (5) working
this Rule shall govern the disof
from the date of notice of the judgment or final order.
the reliefs available under the writ of habeas
The appeal shall be given the same priority as in
theamparo cases.
beas corpus and
SEC. 20. Institution of Separate Actions.—The filing of
a petition for the writ of habeas data shall not clude the filing
of separate criminal, civil or administrative actions.
the
SEC. 21. Consolidation.—When a criminal is
filed subsequent to the filing of a petition for the writ,
latter shall be consolidated with the criminal action.
When a criminal
SEC. 23.action and a separate
Substantive civil
Rights.—This Rule shall
action filed subsequent to a petition for a writ of
habeas data, petitionnot increase
shall or modify with
be consolidated substantive
the rights.
criminal action.
SEC. 24. Suppletory Application of the Rules of
After consolidation,
court.—Thethe procedure
Rules under
of Court thisapply
shall Rule suppletorily
shall continueinsofar
to govern
is notthe dispositionwith
inconsistent of the
thisreliefs
Rule. in
petition.

SEC. 22. EffectSEC.of25. Effectivity.—This

Filing Rule shall take effect
of a Criminal Action.—
When a criminal February
action2, 2008, following
has been its publication
commenced, no in three (3) a
ersthe
separate petition for of eneral circulation.
writ shall be filed. The relief
under writ shall be available to an a rieved art b motion

position data

diminish,

as it

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 619
on news

THE RULE ON THE WRIT OF HABEAS DATA

(AM 08-1-16-SC. JAN. 22, 2008)

SECTION 1 AM 08-1-16-SC. HABEAS DATA

AM 08-1-16-SC, or the Rule on the Writ of Habeas Data

(Habeas Data Rule), was conceived as a response, given the
lack of effective and available remedies, to address the
extraordinary rise in the number of killings and enforced
disappearances (Manila Electric Company v. Lim, GR
184769, Oct. 5, 2010, 632 SCRA 195).
It was conceptualized as a judicial remedy enforcing the right
to privacy, most especially the right to informati0nal privacy of
individuals (Roxas v. Macapagal-Arroyo, GR 189155, sept. 7,
2010, 630 SCRA 211).
Right to informational privacy defined
The right •to informational privacy of indiVjduaIs is defined
as "the right to control the dlection, måntenance,
use, and di'semination (See footnote 62 of op/e v. Torres, GR
127685, July 23, 1998, 354 Phil. 948).

Writ of habeas data defined

The writ of habeas data is a remedy available to any person
in If, lib€rty orsécurity is violated or
threatened by an unlawful act or omission of a public official or
employee or of a private individual or en tity engaged in the
gathering, collecting or storing of data or information
regarding the person, family. home and

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 620 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION
correspondence of the aggrieved party

Writ an independent and summary remedy; what it

seeks to protect

The writ of habeas data i n independent and summary

remedy designed to rotec the image, prtVacy, hafior, iprfffmation
and freédom of information of an individual and to provide a
forum to enforce one's right to the truth and to informational
privacy. It seeks .to protect a person's right to control information
regarding oneself particularl inünstances in which such
information is being collected throug unlawful means In order to
achieve 2üiä6i7SORA 385).
Meaning of "engaged" in the gathering,
collecting or storing of data or information
To "engage" in something is different from undertaking a
business endeavour. To "engage" means "to do or
take art in something" (www.mertiam-webster.com, Last
accessed Feb. 13, 2013).
It does@ecessarily mean that the activity must be done in
pursuit of a business. What matters is that the person or entity
must be gathering, oolT8cting or stofihg said data or
information about the aggrieved party or his or her family.
Whether such undertaking carries the element of regularity, as
when one pursues a business and is in the nature of a personal
endeavor for any other reason or even for no reason at all, is
immaterial and such will not prevent the writ from getting to
said person or entity (Vivares v. St. Theresa's College, GR
202666, sept. 29, 2014, 737 SCRA 92).

Right to informational privacy on online social

network (OSN)

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 621
An online social network (OSN) is an online platform that is
used by people to build social networks or social relations with
other people who share simiJar personal or career interests,
activities, backgrounds or real-life connections.
Purpose of OSN
The purpose of an OSN is precisely to give users the ability
to interact and to stay connected to other members Of the same
or different social media •platform through the sharing of
statuses, photos, videos, among others, de-
Pending on the services provided by the site. It is akin to having a
room filled with millions of personal bulletin boards or "walls," the
contents of which are under the control of each and every user. In
his or her bulletin board, a User/owner can post anything — from
text, to pictures, to music and videos —s access to which would
depend on whether he or she allows one, some or all of the other
users to see his or her posts (Vivares v. St. Theresa's
College, GR 202666, sept. 29, 2014, 737 SCRA 92).

Facebook as an OSN site

The OSN phenomenon has paved the way to the
creation of various social networking sites such as Facebook
(www.facebook.com) which, according to its developers,
people use "to stay connected with friends and fami/y, to
discover what's going on in the world, and to share and
express what matters to them" (http://newsroom.fb.com/Key-
Facts. Last accessed Jan. 24, 2013).
Facebook connections are established through the
process of "friending" another user. By sending a "friend
request," the user invites another to connect their accounts so
that they can view any and all "Public" and "Friends Only"
posts of the other. Once the request is accepted, the link is
established and both users are permitted to view the other
user's "Public" or "Friends Only" posts, among others.
"Friending," therefore, allows the user to form or maintain
one-to-one relationships with other users, whereby the user
gives his or her "Facebook friend" access to his or her profile
and shares certain information to the latter (H v. W., Case
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 622 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION
No. 12/10142, Jan. 30, 2013, In the South Gauteng High
Court, Johannesburg, Republic of South Africa).

Privacy tools Qf Facebook; pr.ivacy

settings are not foolproof
To address concerns about privacy, but without
defeating its purpose, Racebook was armed with differen t
privacy tools designed to regulate the acceSsibiIity of a
user's profile as well as information uploaded by the us er. In
the H v, W case, the South Gauteng High Court recog-

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 08.1.}6.SC

nized this ability of tho users to "customize tl)0/r privacy

settings," but did so with this caveat: "Focobook 610t0$
in its policies that, although it makos ovoty offort to
proloc/ t) user's information, these privacy sott/ngs oro
not too/•
proof.
"
The privacy tools, available to Facobook users, (are)
designed to set up barriers to broaden or limit tho visibility
of his or her specific profile content, statuses, and photos,
among others, from another user's point of view. In other
words, Facebook extends its users an avenue to make the
availability of their Facebook activities reflect their choice
as to "when and to what extent to disclose facts about
[themselves] — and to put others in the position of
receiving such confidences" (Westin, Alan, Privacy and
Freedom, cited in Valerie Steeves' work, Reclaiming the
Social Value of Privacy).

L Invocation of right to informational privacy

through use of OSN's privacy tools
Before one can have an expectation of privacy in his or
her OSN activity, it is first necessary that said user
manifest the intention to keep certain posts private through
the employment of measures to prevent access thereto or to
limit its visibility. And this intention can materialize in
cyberspace through the utilization of the OSN's privacy
tools. In other words, utilization of these privacy the
manifestation, in cyber world, of the user's invocation
Ofhis or her right to informational privacy, (Vivares v. St.
Theresa's College, supra).

Level of privacy of images restricted to be

viewed by "friends only"
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 624 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION

Notwithstanding that the photos are viewable by

"friends only," the digital images under this setting still

remain to be outside the confines of the zones of privacy in

view of the following:
(1) Facebook "allows the world to be more open and
connected by giving its users the tools to interact
and share in any conceivable way;"
(2) A good number of Facebook users "befriend"
other users who are total strangers;
(3) The sheer number of "Friends" one user has,
usually by the hundreds; and
(4) A user's Facebook friend can "share" the former's
post, or "tag" others who are not Facebook friends
with the former, despite its being visible only to his
or her own Facebook friends
Setting a post's or profile detail's privacy to "Friends" is no
assurance that it can no longer be viewed by another user who is
not Facebook friends with the source of the content. The user's
own Facebook friend can share said content or tag his or her
own Facebook friend thereto, regardless of whether the user
tagged by the latter is Facebook friends or not with the former.
Also, when the post is shared or when a person is tagged, the
respective Facebook friends of the person who shared the post
or who was tagged can view the post, the privacy setting of
which was set at "Friends. "
To illustrate, suppose A has 100 Facebook friends and B
has 200. A and B are not Facebook friends. If C, A's
Facebook friend, tags B in A's post, which is set at "Friends,"
the initial audience of 100 (A's own Facebook friends) is
dramatically increased to 300 (A's 100 friends plus B's 200
friends or the public, depending upon B YS privacy setting).
As a result, the audience who can view the post is effectively
expanded — and to a very large extent (Ibid.).
08-1.16.SC

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 625

SECTION 2 AM 08-1-16-SC. WHO MAY FILE

(Any aggrieved party may file a petition for the writ
of habeas data. However, i
s and

(9 (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.

Habeas data ot limited to extralegal

killings and en orced disappearances
Habeas data was designed safeguard individual
freedom from abuse in the information age" (From
Former Chief Justice Reynato Puno's speech, "The Writ
of Habeas Data," delivered on 19 Nov. 2007 at the
UNESCO Policy Forum and Organizational Meeting of
the Informa-
tion for all Program [IFAPI, Philippine National
Committee).

As such, it is erroneous to limit its applicability to

tral
ex egal killings and enforced disappearances only
(Vivares v. St. Theresa's College, supra.). SECTION 3 AM
08-1-16-SC. WHERE TO FILE
Court where the petition may be filed
At the option of the petitioner, the petition may be filed
With the Regional Trial Court:

(1) where the petitioner or respondent esides, or

(2) which has jurisdiction over the place where the data
or information is -gathered, collected or storéd.

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 626 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION

But when the action concerns public data files of gov-

ernment offices, the petition may also be filed with:
(anthe Supreme Court; or
(b)--the Court of Appeals; or
(CY'the Sandiganbayan.

SECTION 4 AM 08-1-16-SC. WHERE RETURNABLE,

ENFORCEABLE

Writ, to which court returned; where

enforced
When the writ is issued b a Re ional Trial Court or
any judge thereof, it shall be eturnable efore such court or
judge.
When the writ is issued by the Court of Appeals or the
Sandiganbayan or any of its justices, it may

(M6efore such court or any justice thereof; or

any Regional Trial Court of the place:
(a) where the petitioner or respondent resides; or
(b) which has jurisdiction over the place where the
data or information is gathered, collected or-
stored.
When issued by the Supreme Court or any
of its justices, it mayb
returnabl
(1Y6efore e such Court or any justice thereof;
or
AM 08.f.16-sc

(2Ybefore the Court of Appeals or the

Sandiganbayan or any of its justices; or

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 627
to any Regional Trial Court
of the place:
(a) where the petitioner or respondent esides; or
(b) which has jurisdiction over the Owhere the data
or information is-fithered, cotrected orstored.
The writ of habeas data shall be enforceable
anywhere in the Philippines.

SECTION 5 AM 08-1-16-SC. DOCKET FEES

Indigent petitioner not required to pay
coun fees
Docket and other lawful fees shall not 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
fifteen 15) days from the filing of the petition.

SECTION 6 AM 08-1-16-SC. PETITION

Contents of verified written petition
A verified written petition for a writ of habeas data should
contain:

(a) The personal circumstances of the påitioner and

the respondent;

(b) The manner the right to privacy is violated or

threatened and •how it affects the right to life, lib
erty or security of the aggrieved party;
(c) The to
secure the data or information;

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 628 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION

(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
uvdating, éctification, suppression or destfuction 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.
Petition to establish tie between right to
privacy and right to life, liberty and security
The petition must adequately show that there exists a
nexus (connection) between the right to privacy on the one
hand and the right to life, liberty or security on the other
(Gamboa v. Chan, GR 193636, July 24, 2012, 677 SCRA
385).

Allegations must be supported by

substantial evidence
The allegations in the petition must be supported by
substantial evidence
lation of the right to privacy in lifé, liberty orsecurity of the
victim (Roxas v. Macapaga/-Arroyo, GR 189155, Sept. 7,
2010, 630 SCRA 211).
The writ of habeas data to rotect purely property or
commercial concerns nor when the grounds
invoked in support of the petitions therefor are vsgue
and doubtful (Manila Electric Company v. Lim, GR
2010,632 SCRA 195).
184769,

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 629

SECTION 7 AM 08-1-16-SC. ISSUANCE OF THE

WRIT
Immediate issuance of the writ, setting
the date and time for hearing
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 then
issue the writ under the seal of the court and cause it to be
served within three ) day from the issuance; or,
in case of urgent e necessity, 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 summa} he
ri¯ of the petition which shall not be later than ten 10 wo
days from the date of its issuance.

SECTION 8, AM 08-1-16-SC. PENALTY FOR

REFUSING TO ISSUE OR SERVE THE WRIT
Refusal to issue or serve the writ
punishable for contempt of court
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. SECTION 9 AM 08-1-16-SC. HOW THE
WRIT IS SERVED
Service of the writ

The writ shall be served upon the respondent by a ju

dicial officer or by a person deputized by the court, justice

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 630 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION

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. 10, AM 08-1-16-SC. RETURN: CONTENTS

Filing of a verified written return of the writ
The respondent shall f' a v ri led written return
together with supporting affidavits Ive within )
working days from service of the writ which period
may be reasonably extended by the Court for justifiable
reasons.

ontents of return of the writ

The return shall, among other things, contain the
following:
The lawful defenses such as:
national security;
(b) state secrets;

(c) privileged communications;

(d) confidentiality of the source of information of
media; and others;
(2) In case of respondent in charge, in possession or in
control of the data or information subject of the
petition,
(a) a disclosure of:
(i) the data or information about the petitioner;

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 08.1-16-SC

(ii) the nature of such data or

informati603nl;
(iii) the purpose for its collection
(b) the steps or actions taken by the respondent to ensure
the security and confidentiality of the data or
information; and
(c) the currency and accuracy of the data or information
held; and
(3) Other allegations relevant to the resolution of the

General denial not permitted

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

SECTION 11 AM 08-1-16-SC. CONTEMPT ho

may be punished for contempt

The court, justice or judge may punish with imprisonment

or fine:
(a) a respondent who commits contempt by making
a false return;
(b) a respondent who commits contempt by refusing to make a
return; or
(c) any person who otherwise disobeys or resists a lawful
process or order of the court.

SECTION 12, AM 08-1-16-SC, WHEN DEFENSES MAY

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 632 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION
BE HEARD IN CHAMBERS

When hearing may be held "in

chambers" or "in camera"
A hearing "in chambers" (also "in camera") may be
conducted:
(1) where the respondent invokes the defense that the release
of the data or information in question shall compromise
national security qr„state secrets; or
(2) when the data or information cannot be divulged to the
public due to its nature or privileged character
"In chambers" or "in camera"
defined
The term "in chambers" or "in camera" means "in pri vate." A
judicial proceeding is said to be heard in chambers or in camera:
(a) when the same is held before the judge in his/her prrva ec
am ers or

(b) when the spectators-are-exglyged from the courtroom.

SECTION 13 AM 08-1-16-SC. PROHIBITED PLEADINGS

AND MOTIONS
Pleadings and motions that are not allowed
The following pleadings and motions are prohibited:
(1) Motion to dismiss;
(2) Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings;
08-1.16-SC

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 633
(3) Dilatory motion for postponement;
(4) Motion for a bill of particulars;
Counterclaim or cross-claim;

(6) Third-party complaint;

(7) Reply;
(8) Motion to declare respondent in default;
Intervention;
(10) Memorandum;
(11) Motion for reconsideration of interlocutory orders or interim
relief orders; and
(12) Petition for cediorari, mandamus or prohibition

against any interlocutory order.

SECTION 14 AM 08-1-16-SC. RETURN• FILING

Effect of respondent's failure to file a return
In the event that the respondent fails to file a return, the court,
justice or judge shall proceed to hear the petition ex pane and grant
the petitioner such relief as the petition may warrant unless the
court, in its discretion, requires the petitioner to submit evidence.
SECTION 15 AM 08-1-16-SC. SUMMARY HEARING
Summary 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 possi bility of obtaining
stipulations and admissions from the Parties.
SECTION 16 AM 08-1-16-SC, JUDGMENT
Period of rendition of decision; when enforced

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 634 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION
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;
(1) (a) enjoin the act complained of; or
(b) order the deletion, destruction, or rectification of the
erroneous data or information; and
(2) grant other relevant reliefs as may be just and equitable.
Otherwise, the privilege of the writ shall be denied.
Within five (5) working days from the attainment of finality of the
judgment, the same shall be enforced by the sheriff or any lawful
officers as may be designated by the court, justice or judge.

SEC. 17 AM 08-1-16-SC. RETURN OF SERVICE

Duty of officer executing the judgment to make a return to the
court
The officer who executed the final judgment shal l, within three (3) days
from its enforcement, make a verified return to the court.

Contents of the return

The return shall contain the following:
r-1.f6-sc

(a) a full statement of the proceedings under the writ; and

(b) a complete inventory of the database or informa-

tion, or documents and articles inspected, up dated,

rectified, or deleted, with copies served on

the petitioner and the respondent.

The officer shall state in the return:

(1) how the judgment was enforced and complied with by the
respondent; and
(2) all objections of the parties regarding the manner and
regularity of the service of the writ.

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 635
sECTION 18 AM 08-1-16-SC. HEARING ON OFFICER'S RETURN

Setting the return for hearing

The court shall set the return for hearing with due notice to the
parties and act accordingly.

SECTION 19 AM 08-1-16-SC. APPEAL

Appeal from final judgment or order
Any party may appeal from the final judgment or order to
the Supreme Court under Rule 45 of the Rules of Court,
raising questions of fact or law or both.
Period of appeal

The period of appeal shall be five (5) working days from the
date of notice of the judgment or final order.

The appeal shall be given the same priority as in habeas

corpus and amparo cases.
SECTION m AM 08-1-16-SC. INSTITUTION OF
SEPARA TE ACTIONS

Filing of separate criminal, civil or administrative

actions not precluded
The filing of a petition for the writ of habeas data shall not
preclude the filing of separate criminal, civil or administrative actions.

SECTION 21, AM 08-1-16-SC. CONSOLIDATION

Consolidation of actions
When a criminal action is filed subsequent to the filing of a
petition for the writ, the latter shall be consolidated with the criminal
action.

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 636 SPECIAL PROCEEDINGS, AN EXHAUSTIVE EXPOSITION
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 the consolidation, the procedure under the Habeas Data
Rule shall continue to govern the disposition of the reliefs in the
petition.

SECTION 22 AM 08-1-16-SC, EFFECT OF FILING OF A CRIMINAL

ACTION

No separate petition for the writ allowed after

institution of criminal action
When a criminal action has been commenced, no separate
petition for the writ shall be filed. The relief under the writ shall be
available to an aggrieved party by motion in the criminal case,
0B.1-f6-sc

The procedure under the Habeas Data Rule shall

govern the disposition of the reliefs available under the
writ of habeas data
23 AM 08-1-16-SC. SUBSTANTIVE RIGHTS
No diminution, enlargement or modification
ofsubstantive rights
The Habeas Data Rule shall not diminish, increase or
modify substantive rights.
SEC, 24 AM 08-1-16-SC. SUPPLETORYAPPLICA TION
OF THE RULES OF COURT
Supp/etory application of the Rule of Court
The Rules of Court shall apply suppletorily insofar as it
is not inconsistent with the Habeas Data Rule.

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 637
sec. 25 AM 08-1-16-SC. EFFECTIWTY
Effectivity of the Rule

The Habeas Data Rule took effect on February 2,

2008 following its publication in three (3) newspapers of
general circulation.

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
638

RULE 103
CHANGE OF NAME
Section 1, Rule 103. Venue,---A person desiring to
change his name shall present the petition to the First
Court
Instance (now Regional Trial Court) of the provinceof in
which he resides, or, in the City of Manila, to theFpaJu
and
Domestic Relations Court (which no longer exists).venile
Section 2, Rule 103. Contents of petitions—A
tion for change of name shall be signed and verified
person desiring his name changed, or some other on
his behalf, and shall set forth:
(a)That the petitioner has been a bona fide resident
the province where the petition is filed for at
three (3) years prior to the date of such filing;
(b)The cause for which the change of the name
is sought;
(c)The name asked for.
Section 3, Rule 103. Order for hearing.—lf the tion
filed is sufficient in form and substance, the court,
order reciting the purpose of the petition, shall date and
place for the hearing thereof, and shall direct a copy of
the order be published before the hearing least once a
week for three (3) successive weeks in newspaper of
general circulation published in the ince, as the court
shall deem best. The date set hearing shall not be within
thirty (30) days prior to an tion nor within four (4)
month after the last publication the notice.

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 639
petiby the person

of least

petitioner's

petib
y fix a
that at
some
provfo
r the
elecof

section 4, Rule 103. Hearing—Any interested permay

appear at the hearing and oppose the petition. solicitor
General or the proper provincial or city fiscal appear on The
behalf of the Government of the Republic, section 5,
Rule 103. Judgment.—Upon satisfactory in open court
on the date fixed in the order that such has been
published as directed and that the allegaof the petition
are true, the court shall, if proper and reasonable cause
appears for changing the name of the petitioner, adjudge
that such name be changed in accordance with the prayer
of the petition.

Section 6, Rule 103. Service of judgment.— Judgments

or orders rendered in connection with this rule shall be
furnished the civil registrar of the municipality or where the
court issuing the same is situated, who shall forthwith enter
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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
shall

proof order tions

city

RULE 103. CHANGE OF NAME

A. Rule 103
Rule 103 governs petitions for change of
given name or surname
Rule 103 procedurally governs judicial petitions for change
of given name or surname or both pursuant to Article 376 of the
Civil Code. This rule provides the procedure for an independent
special proceeding in court to establish the status of a person
involving his relations with Others, that is, his legal position in,
or with regard to, the rest of the community (Republic v. CA, GR
97906, May 21, 1992, 209 SCRA 189).
640

Alticle 376 specifically provides that: "No person can

change his name or surname without judicial authority,"
In petitions for change of name, a person avails of a remedy
to alter the "designation by which he is known and called in the
community in which he lives and is best known" (In the Matter
of the Adoption of Stephanie Nathy Astorga Garcia, GR 148311.
Mar. 31, 2005, 494 Phil. 515). When granted, a person's identity
and interactions are affected as he bears a new "label or
appellation for the convenience of the world at large in
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 641
addressing him, or in speaking of, or dealing with him" (De/
Prado v. Republic, GR L-18127, Apr. 5, 1967, 126 Phil. 1).
Judicial permission for a change of name aims to prevent
fraud and to ensure a record of the change by virtue of a court
decree (Republic v. Mercadera, GR 186027, Dec. 8, 2010, 637
SCRA 654).

Change of name does not alter family relations, legal

capacity or civil status
A change of name does not define or effect a change of
one's existing family relations or in the rights and duties flowing
therefrom. It does not alter one's legal capacity or civil status
(Republic v. CA, GR 97906, May 21, 1992, 209 SCRA 189).

Instances when change applied for may be

objected to
There could be instances where the change applied for may
be open to objection by parties who already bear the surname
desired by the applicant 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 (Huan Tin v. Republic, GR
L_20997, Apr. 27, 1967, 126 Phil. 201).
Hence, in requests for a change of name, what is inis not
a mere 'matter of allowance or disallowance of the request
but a judicious evaluation of the sufficiency and propriety of
the justifications advanced, mindful of the consequent results
in the event of its grant (Wang v. Cebu city Civil Registry,
GR 159966, Mar. 30, 2005, 494 Phil.
149).

change of name under Rule 103 not to be

confused with Rule 108

The change of name contemplated under Article 376

and Rule 103 must not be confused with Article 412 and

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
Rule 108. A change of one's name under Rule 103 can be
granted only on grounds provided by law.
In order to justify a request for change of name, there
must be a proper and compelling reason for the change and
proof that the person requesting will be prejudiced by the use
of his official name. To assess the sufficiency of the grounds
invoked therefor, there must be adversarial proceedings
(Republic v. Mercadera, GR 186027, Dec. 8, 2010, 637 SCRA
654) or "one having opposing parties, contested, as
distinguished from an ex parte application, one [in] which the
party seeking relief has given legal waming to the other party,
and afforded the latter an opPortunity to contest it " (cited in
Republic v. Labrador, GR 132980, Mar. 25, 1999, 364 Phil.
934).

B. Republic Act 9048 or

the Clerical Error Law
Republic Act No. 9048 or the "Clerical Error Law"
was enacted on March 22, 2001 authorizing the city or
munici-
642

pal civil registrar or the consul general to correct a clerical

or typographical error in an entry and/or change the first
name or nickname in the civil register without need of a
judicial order.
RA 9048 amended Articles 376 and 412 of the Civil
Code which prohibit the change of name or surname of a
person, or any correction or change of entry in a civil register
without a judicial order (http://web0.psa.gov.phO.
Article 376 provides that: "No person can change his
name or surname without judicial authority" while Article
412 empahsizes that "No entry in a civil register shall be
changed or corrected, without a judicial order."

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 643
Effect of RA 9048 on Rules 103 and
108 on change of name
Under RA 9048, jurisdiction over applications for
change of first name is now primarily lodged with
administrative officers. The intent and effect of said law is to
exclude the change of first name from the coverage of Rules
103 (Change of Name) and 108 (Cancellation or Correction
of Entries in the Civil Registry) of the Rules of Court, until
and unless an administrative petition for change of name is
first filed and subsequently denied. The remedy and the
proceedings regulating change of first name are primarily
administrative in nature, not judicial (Si/verio v. Republic,
GR 174689, Oct. 19, 2007, 537 SCRA 373).

Corrections that can be made under RA

9048
RA 9048 allows the following corrections in
civil registry documents:
(a) correction of "clerical or typographical
errors" in any entry in civil registry
documents as such er-
rors are defined in Section 1 of RA
9048, as amended by RA
10172; and
(b) change of a person's first name in his/her
civil registry document under certain
grounds specified under the law through
administrative process (http://web0.psa.gov.ph0.

conditions under RA 9048 that petitioner needs

to comply with
The petitioner in an administrative petition for change of
name under RA 9048 must comply with any of the following
conditions:

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
(I) That the petitioner finds the first name or nickname to
be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
(2) That the new first name or nickname has been
habitually and continuously used by the petitioner and
he has been publicly known by that first name or
nickname in the community; or
(3) That the change will avoid confusion (Ibid.).
Specific instances when change of first
names or nicknames may be allowed under
RA 9048 and existing jurisprudence
Under Republic Act No. 9048, the petition for
change Of first names or nicknames may be allowed
when:
(1) such names or nicknames are ridiculous, dishon
ora ble or extremely difficult to write or pronounce
(Sec. 4, RA 9048);

(2) the request for change is a consequence of a change

of status such as when a natural child is acknowledged

or legitimated (Haw Liong v. Re-

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 647
SPECIAL

public, GR L-21194, Apr. 29, 1966, 16 SCRA

677);
(3) the petitioner has continuously used and been
known since childhood by a Filipino name,
unaware of his/her alien parentage (Ang Chay v.
Republic, GR L-28507, July 31, 1970, 34 SCRA
224);
(4) the new first name or nickname has been habitually
and continuously used by the petitioner and he has
been publicly known by that first name or nickname in
the community (Sec. 4, RA 9048); or
(5) the change will avoid confusion (Alfon v. Republic,
GR L-51201, May 29, 1980, 97 SCRA 858).

Who may file the petition under RA 9048

Whether it is for correction of clerical or typographical
error, or for change of first name, the petition may be filed by a
person of legal age who must have a direct and personal interest
in the correction of the error or in the change of first name in the
civil register.
A person is considered of legal age when he is eighteen
(18) years old and above, Thus, a minor (less than 18 years
old) cannot by himself file a petition, either for correction of
clerical or typographical error or for change of his first name.
Only the following persons are considered to have a
direct and personal interest in the correction of clerical error
or change of first name:
(a) The owner of the record that contains the error to be
corrected or first name to be changed; and
(b) The (record) owner's spouse, children, parents,
brothers, sisters, grandparents, guardian, or any
(03

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
other person duly authorized by law or by the owner of
the document sought to be corrected (Ibid.).

form and contents of the petition underRA

9048
The petition, whether it is for correction of clerical eror for
a change of first name, should be accomplished properly and
in the prescribed form. Section 5 of RA 9048 and Rule 8 of
Administrative Order No. 1, S. 2001 (of the former National
Statistics [NSO], now called the Philippine statistics
Authority [PSA]) require that the petition should be in the
form of an affidavit, hence, it should be subscribed and sworn
to before a person authorized to administer oath.
Basically, the petition must contain the following facts or
information:
(a) the merits of the petition;
(b) the competency of the petitioner; and
(c) the erroneous entry to be corrected and proposed
correction; first name to be changed and the proposed
new first name (Ibid.).

Supporting papers for change of

first name under RA 9048
No petition for change of first name shall be accepted
unless the petitioner submits the required supporting papers,
as follows:
(a) Certified machine copy of the certificate contain ing the
alleged erroneous entry or entries;

646 SPECIAL

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 649
(b) Not less than two (2) public or private documents upon
which the correction shall be based. Exam. ples of these
documents are the following:
baptismal certificate;
(2) voter's affidavit;
(3) employment record;
(4) GSIS/SSS record;

(5) medical record;

(6) school record;
(7) business record;
(8) driver's license;
(9) insurance;
(10) land titles;
(1 1) certificate of land transfer;
(12) bank passbook;
(13) National Bureau of Investigation (NBI)/ police
clearance;
(14) civil registry records of ascendants; and
(15) others;
(c) Notice and Certificate of Posting;
(d) Certified machine copy of the Official Receipt of the
filing fee;
(e) Clearance from authorities such as clearance from:
(1 employer, if employed;
(2 the NBI;

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION

RULE {03

(3) the Philippine National Police (PNP); and

(4) other clearances as may be required by the
concerned City/Municipal Civil Registrar (C/MCR);
(f) Proof of Publication. An affidavit of publication
from the publisher and copy of the newspaper
clippings should be attached; and
(g) Other documents as may be required by the
C/MCR (Ibid.).

Where to file petition under RA 9048

The general rule is that the petition shall be filed with the
Local Civil Registry Office (LCRO) where the record containing
the clerical error to be corrected or first name to be changed is
kept. Included in this general rule is the case of the Office of the
Clerk of Shari'a Court where records of divorces, revocations of
divorces, conversions to Islam are kept and where some Muslim
marriages are registe red.

However, in case the petitioner is a migrant within or outside

the Philippines, meaning his present residence or domicile is
different from where his civil registry record or records are
registered, he may file the petition in the near est LCRO in his
area. His petition will be treated as a migrant petition (Ibid.).

Change of name of a person with Congenital

Adrenal Hyperplasia (CAH); case law
There is merit in the change of name of a person with
COngenital Adrenal Hyperplasia (CAH) where the same is the
consequence of the recognition of his preferred gen der.

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CAH is one of many conditions that involve intersex
anatomy. During the twentieth century, medicine adopted the
term "intetsexuality" to apply to human beings who cannot be
classified as either male or female. The term is now of
widespread use. According to Wikipedia, intersexuality "is
the state of a living thing of a gonochoristic species whose
sex chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither exclusively male
nor female. An organism with intersex may have biological
characteristics of both male and female sexes. "
As for respondent's change of name under Rule 103, this
Court has held that a change of name is not a matter of right but
of judicial discretion, to be exercised in the light of the reasons
adduced and the consequences that will follow. The trial court's
grant of respondent's change of name from Jennifer to Jeff implies
a change of a feminine to a masculine name. Considering the
consequence that respondent's change of name merely recognizes
his preferred gender, we find merit in respondent's change of
name. Such a change will conform with the change of the entry in
his birth certificate from female to male (Republic
v. Cagandahan, GR 166676, sept. 12, 2008, 565 SCRA 72).

SECTION 1 RULE 103. VENUE

A person desiring to change his name shall present the
petition to the Regional Trial Court (RTC) of the province in
which he resides.

Philippine citizenship not a requisite; scope

of "person" within the requisites set forth in
Rule 103 of the Rules of Coutt
103

Rule 103 of the Rules of court does not say that only
citizens In of Section the Philippines 1 of Rule may
103, petition the word for "person" a change is ofa

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
generic term which is not limited to Filipino citizens but

It does not even require that the citizenship of the

petitioner be stated in his petition. It is enough that the peti-

(a) verified;
(b) signed by the petitioner or some other person in

(c) setting forth that:

(1) the petitioner has been a bonafide resident of the
province where the petition is filed for at least
three (3) years prior to the date of filing;
(2) the cause for which the change of name is
sought; and
(3) the name asked (Sec. 2, Rule 103, ROC;
In
the Petition for the Change of Name of Jose/ito Yu,
GR L-20874, May 25, 1966, 17 SCRA 253).

Proper and reasonable cause;

judicial discretion
The purpose of the judicial application is to determine
Whether there is proper and reasonable cause for the
change of name. As held by the Supreme Court in several
cases, in which, pertinently enough, the petitioners were
aliens, the change is not a matter of right but of judicial
discretion to be exercised in the light of the reasons ad duced
and the consequences that will likely follow (Ong

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 653
Peng oan v. Republic, GR L-8035, Nov. 29, 1957, 102 Phil.,
468).

Power of court to give or withhold consent to

change of name
Change of name is not a right. It is a privilege (Ong
Peng oat) v. Republic, GR L-8035, Nov. 29, 1957, 102 Phil.,
468).
The court may give or withhold its consent (Ng Yao
Siong v. Republic, GR L-20306, Mar. 31, 1966, 16 SCRA
483).
Change of name, a special proceeding and a
proceeding in rem requiring publication
Change of name under our own law is a special proceeding to
establish the status of a person involving his relations with others,
that is, his legal position in, or with regard to, the rest of the
community. The petition therefor is directed against all. It is in
rem. So it is, that under Section 3 of Rule 103, publication of the
petition is required (Padilla, Civil Code. Vol. 1, 1961 ed., p. 905,
citing Jacobo
v. Republic, 54 OG. 9 pp. 2928).
Nature of proceedings; jurisdiction how
acquired
Change of name is a judicial proceeding in rem. Jurisdiction
to hear and determine a petition thereof, by law, is acquired after
publication of the "order reciting the purpose of the petition" and
the "date and place for the hearing thereof" for three (3)
successive weeks in a newspaper of general circulation (Art. 376,
Civil Code; Secs. 1 and 3, Rule 103, ROC).
103

publication serves as notice to the whole world

publication is notice to the whole world that the

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
proceeding has for its object "to bar indifferently all who
might be minded to make an objection of any sort against the
right sought to be established" (Alba v. De la Cruz, GR 5246,
sept. 16, 1910, 17 Phil. 49).

Alien-applicant to be governed by lex domicilii;

meaning of "domicile."
The broad general doctrine is that the status of an
alien individual is governed and controlled by the lex
domicilii. Imolicit in this precept is that an alien may be
allowed to change his name here only if he be domiciled
in the Philippines. And "domicile" means "permanent
home, the place to which, whenever absent for business
or pleasure, one intends to return, and depends on facts
and circumstances, in the sense that they disclose intent"
(Corre v. Corre, GR L-10128, Nov. 13, 1956, 100 Phil.
321).

Alien who is temporary resident of the

Philippines cannot avail of this right
An alien who temporarily stays in the Philippines may
not there avail of the right to change his name. For what
good will that be if, after all, his stay will be for a short pe
riod of time? It would not be of much benefit to him; court
proceeding for the purpose could yet be a useless ceremony;
the salutary effects flowing from a change of his social
relation and condition may not thus be achieved.
Hence, the rule that only aliens domiciled in the Phil
ippines may apply for change of name in the Courts thereof
(Ong Huan Tin v. Republic, GR L-20997, Apr. 27, 1967, 19
SCRA 966).

SECTION 2 RULE 103. CONTENTS OF PETITION

What the petition should contain

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 655
A petition for change of name shall be filed in the
Regional Trial Court of the province where the person
desiring to change his name resides. It shall:
(1) be signed and verified by the person desiring his name
to be changed or by some other person in his behalf;
and
(2) state:
(a) that the petitioner has been a bona fide resident of
the province where the petition is filed for at least
three (3) years prior to such filing;
(b) the cause for which the change of name is sought;
and
(c) the name asked for (Sec. 2, Rule 103, ROC).
Facts to be recited in the publication
For the publication to be effective, it must give a correct
information. To inform, the publication should recite, amongst
others the following facts:
(a) the name or names of the applicant;
(b) the cause for which the change of name is sought; and
(c) the new name asked for (Sec. 2, Rule
103, ROC).
Grounds for change of name
The following grounds are deemed sufficient
to warrant of a change of name:
(l) When the name is ridiculous, dishonorable or
tremely difficult to Write or pronounce;
(2) When the change is a legal consequence of

(3) When the change will avoid confusion;

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
(4) When one has continuously used and been known
since childhood by a Filipino name and was unaware of alien
parentage;
(5) When the change is based on a sincere desire to
adopt a Filipino name to erase signs of former alienage,
all in good faith and without prejudice to

(6) When the surname causes embarrassment and there is no

showing that the desired change of name was for a fraudulent
purpose, or that the change of name would prejudice public
interest (Republic v. Hernandez, GR 117209, Feb. 9, 1996, 253
SCRA 509).

Order of publication must state cause for

change of name.

The order of publication which does not cite the cause for which the
change of name is sought is defective (Re Public v. Judge of Br.
111 of the CFI of Cebu, GR L-35605, Oct. 1, 1984, 132 SCRA
462).
Non-publication of other aliases of applicant
fatal to petition

Notices published in the newspapers often appear in the

back pages thereof or in the pages least read or paid attention
to. The reader, as usually happens, merely scans these pages and
glances fleetingly at the captions of the published orders or the titles
of the petitions. Only if the caption or the title strikes him does the
reader proceed to read on. And the probability is great that the
reader does not at all notice the other names and/or aliases of the
applicant if these are mentioned only in the body of the order or
petition.
The non-inclusion of all the names and/or aliases of the
applicant in the caption of the order or the title of the petition
defeats the very purpose of the required publication (Republic v.
Tafiada, GR L-31563, Nov. 29, 1971, 42 SCRA 419).

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 657
Change of name; when not proper
A petition for change of name grounded on the fact that one
was baptized by another name under which he has been known
and which he used has been denied inasmuch as the use of
baptismal names is not sanctioned (Chomi v. Local Civil
Registrar of Manila, GR L-9203, sept. 28, 1956, 99 Phil. 1004).
Baptism is in not a condition sine qua non to a change of
name (Ong Te v. Republic, GR L-15549, June 30, 1962, 5
SCRA 484).
The fact that the petitioner has been using a different
name and has become known by it does not constitute proper
and reasonable cause to legally authorize a change of name
(Ong Pen Oan v. Republic, GR L-8035, Nov. 29, 1957, 102
Phil. 460).

Right of an adoptive parent to re-name an

adopted child has no basis in law
While the right of a natural parent to name the child is
recognized, guaranteed and protected under the law, the
o_cailed right of an adoptive parent to re-name an
adopted child by virtue or as a consequence of adoption,
even for the most noble intentions and moving supplica
ions, is unheard of in law and consequently cannot be
favorably considered (Republic v. Hernandez, GR
117209, Feb. 9, 1996, 253 SCRA 509).

Adoption; legal effects on the surname

of adoptee
Article 189 of the Family Code (Executive Order No.
209, as amended) enumerates the legal effects of adop tion.
The law allows the adoptee, as a matter of right and
obligation, to bear the surname of the adopter, upon issu
ance of the decree of adoption.

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION

It is the change of the adoptee's surname to follow that

of the adopter which is the natural and necessary,
consequence of a grant of adoption and must specifically
be contained in the order of the court, in fact, even if not
prayed for by petitioner (Ibid.).

Given or proper name of adoptee as

originally registered must remain
The given or proper name, also known as the first or
C
hristian name, of the adoptee must remain as it was originally
registered in the civil register. The creation of an adoptive
relationship does not confer upon the adopter a license to change
the adoptee's registered Christian or first name (Ibid.).

Change of given name beyond the

Purview of adoption proceedings

The automatic change of the given or proper name,

Premised solely upon the adoption thus granted, is beyond

the purview of a decree of adoption. Neither is it a mere

incident in nor an adjunct of an adoption proceeding such that a
prayer therefor furtively inserted in a petition for adoption
cannot properly be granted.
The name of the adoptee as recorded in the civil register
should be used in the adoption proceedings in order to vest the
court with jurisdiction to hear and determine the same, and shall
continue to be so used until the court orders otherwise (Ibid.),

Real name of person; variance between

name recorded in the civil register and
that given in the church records; name
that may be changed

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 659
By Article 408 of the Civil Code, a person's birth must
be entered in the civil register. So it is that the civil register
records his name. That name in the civil register, for legal
purposes, is his real name (Chomi v. Local Civil Registrar
of Manila, GR L-9203, sept. 28, 1956, 99 Phil. 1004).
A name given to a person in the church records or
elsewhere or by which he is known in the community when at
variance with that entered in the civil register - is unofficial and
cannot be recognized as his real name. Therefore, for purposes
of an application for change of name under Article 376 of the
Civil Code, the only name that may be changed is the true or
official name recorded in the civil register (Ng Yao Siong v.
Republic, GR L20306, Mar. 31, 1966, 16 SCRA 483).

Name of a person; elucidated

A person's name is a word or combination of words by
which he is known and identified, and distinguished from
others, for the convenience of the world at large in
RULE 103

addressing him, or in speaking of or dealing with him. It is

of personal as well as public interest that every person must
have a name. The State has an interest in the names borne
by individuals and entities for purposes of identification. A
change of name is a privilege, not a right.
A man's name is the designation by which he is known
and called in the community in which he lives and is best
known. It is defined as the word or combination of words
by which a person is distinguished from other indi-

viduals and, also, as the label or appellation which he bears

for the convenience of the world at large addressing him,
or in speaking of or dealing with him (Republic v. CA and
Maximo Wong, GR 97906, May 21, 1992, 209 SCRA
189).

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
Parts of an individual's name;
distinctions
The name of an individual has two (2) parts:
(a) the given or proper name; and (b) the
surname or family name.
The given or proper name is that which is given to the
individual at birth or at baptism, to distinguish him from
other individuals. The surname or family name is that
Which identifies the family to which he belongs and is
continued from parent to child. The given name may
be freely selected by the parents for the child, but the
surname to which the child is entitled is fixed by law
(Republic v. Hernandez, supra.).

Official name of a person required to

be registered in the civil registry

BY Article 408 of the Civil Code, a person's birth

must be entered in the civil register. The official name of a
person is that given him in the civil register. That is his
name in the eyes of the law (Chomi v. Local Civil Registrar
of Manila, GR L-9203, sept. 28, 1956, 99 Phil. 1004).

Name once registered cannot be changed sans

judicial authority
Once the name of a person is officially entered in the
civil register, Article 376 of the Civil Code seals that identity
with its precise mandate: no person can change his name or

surname without judicial authority. This statutory restriction

is premised on the interest of the State in names borne by
individuals and entities for purposes of identification (Chiu

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 661
Hap Chiu v. Republic, GR L-20018, Apr. 30, 1966, 16
SCRA 864).

Change of proper name a substantial change;

purpose
Changing the given or proper name of a person as
recorded in the civil register is a substantial change in one's
official or legal name and cannot be authorized without a
judicial order.
The purpose of the statutory procedure authorizing a
change of name is simply to have, wherever possible, a
record of the change and, in keeping with the object of the
statute, a court to which the application is made should
normally make its decree recording such change (See Art.
412, CC).

Change of name; how effected

The official name of a person whose birth is reg istered

in the civil register is the name appearing therein. If a
change is one's name is desired, this can only be done by
filing and strictly complying with the substantive and

FOLEf03

procedural requirements for a special proceeding for

change of name under Rule 103 of the Rules of Court
wherein the sufficiency of the reasons or grounds therefor
can be threshed out and accordingly determined (Republic
v. Hernandez, GR 117209, Feb. 9, 1996, 253 SCRA 509).

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
Order for the date and place of
hearing; judgment
An order for the date and place of hearing shall be
made and published, with the Solicitor General or the proper
provincial or city prosecutor appearing for the Government at
such hearing. It is only upon satisfactory proof of the veracity
of the allegations in the petition and the reasonableness of the
causes for the change of name that the court may adjudge that
the name be changed as prayed for in the petition and shall
furnish a copy of said judgment to the civil registrar of the
municipality concerned who shall forthwith enter the same in the
civil register (Ibid.).

Petition must strictly comply with

requirements
A petition for change of name being a proceeding in rem,
strict compliance with all the requirements therefor is
indispensable in order to vest the court with jurisdiction for its
adjudication. It is an independent and discrete special
Proceeding, in and by itself, governed by its own set of rules. A
fortiori, it cannot be granted by means of any other proceeding
(Ibid.).
Petition should be filed by applicant only upon
reaching the age of majority

The matter of change of a minor's name is best left to his

judgment and discretion when he reaches the age of majority. A
child of tender age may not yet understand and appreciate the
value of the change of his name and granting of the same at that
point (of being a minor) may just prejudice him in his rights
under our laws (Wang v, Cebu City Civil Registty, GR 159966,
Man 30, 2005, 494 Phil. 149).
In a number of cases, the Supreme Court denied the petitions
for change of name filed by mothers in behalf of their minor

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 663
children for prematurity (Republic v. Marcos, GR 31065, Feb.
15, 1990, 182 SCRA 223).
Effect of failure to state true name
and aliases in heading of petition;
reason for the requirements
For a publication of a petition for a change of name to
be valid, the title thereof should include, first, his real name,
and second, his aliases, if any. This is a strict requirement of
publication and non-compliance therewith is fatal. The court
acquires no jurisdiction to hear the case (Tan v. Republic,
GR L-16384, Apr. 26, 1962, 4 SCRA 1128).
The reason for these requirements is that a change of
name is a matter of public interest. The petitioner might be in
the rogues' gallery or hiding to avoid service of sentence or
compliance with a judgment in a criminal case or could have
escaped from prison.
If petitioner is an alien, he might have given cause for
deportation or might be one against whom an order of
deportation was issued or that the new name the petitione r
desires to adopt may be similar to that of a respectable person
and the latter might have evidence that petitioner is of unsavory
reputation that might impair his own good name.

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
RILE

Being a privilege and not a right, a change of name lies

within the discretion of the court to give or withhold. Failure to
comply with these jurisdictional requirements renders the
proceedings a nullity (Secan Kok v. Republic, GR L-27621, Aug.
30, 1973, 52 SCRA 322).

Aliens; use of aliases withoutjudicial authority

The use of aliases without judicial authority violates Section 1 of

Commonwealth Act 142 C'An act to regulate the use of aliases')
punishable with imprisonment ranging from one (1) month to six (6)
months pursuant to Section 4

Where an alien was never authorized to use an alias by a

competent court, his application for a change of name could not
be lawfully granted (Ng Yao Siong v. Republic, GR 1-20306,
Law on regulating the use of aliases
The enactment of Commonwealth Act No. 142, as amended
(by R. A. No. 6085), was made primarily to curb the common practice
among the Chinese of adopting scores of different names and aliases
which created tremendous confusion in the field of trade.
Such a practice almost bordered on the crime of using
fictitious names which for obvious reasons could not be
SUccessfully maintained against the Chinese who, rightly Or
Wrongly, claimed they possessed a thousand and one names.
Commonwealth Act No. 142 thus penalized the act of using an
alias name, unless such alias was duly atlthorized by proper

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 665
judicial proceedings and recorded in the civil register (Ursua v.
CA, GR 112170, Apn 10, 1996, 256 SCRA 147).
Alias defined
An alias is a name or names used by a person or in. tended
to be used by him publicly and habitually usually in business
transactions in addition to his real name by which he is
registered at birth or baptized the first time or substitute name
authorized by a competent authority.
A man's name is simply the sound or sounds by which he is
commonly designated by his fellows and by which they
distinguish him but sometimes a man is known by several
different names and these are known as aliases (Ibid.).

When use of fictitious name in a single

transaction not violative of the law
The use of a fictitious name or a different name belonging
to another person in a single instance without any sign or
indication that the user intends to be known by this name in
addition to his real name from that day forth does not fall
within the prohibition contained in Commonwealth Act No.
142, as amended (Ibid.). SECTION 3 RULE 103. ORDER FOR
HEARING
Court to issue order fixing the date and
place of hearing, etc.
If the petition filed is sufficient in form and
substance, the court shall issue an order:
(1) reciting the purpose of the petition;
(2) fixing a date and place for the hearing
thereof; and

(3) directing that a copy of the order be

published before the hearing at least once
a week for three (3) successive weeks in

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
some newspaper of general circulation published in
the province, as the court shall deem best (Sec. 8,
Rule 103, ROC).

Schedule of hearing
The date set for the hearing shall not be within thirty (30)
days prior to an election nor within four (4) month after the
last publication of the notice (Sec. 3, Rule 103, ROC).

strict compliance with requirements ofpublication

Petitions for change of name being proceedings in rem, strict

compliance with the requirements of publication is essential, for
it is by such means that the Court acquires jurisdiction (Jacobo v.
Republic, 52 OG 9, p. 2928).

Grounds for change of name under

Rule 103

A person can effect a change of name under Rule 103 of

the Rules of Court using valid and meritorious grounds
including:
(a) when the name is ridiculous, dishonorable or extremely
difficult to write or pronounce;
(b) when the change results as a legal consequence such as
legitimation;
(c) when the change will avoid confusion;
(d) when one has continuously used and
been known since childhood by a
Filipino name, and was unaware of alien
parentage;

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 667
(e) a sincere desire to adopt a Filipino name to erase signs
of former alienage, all in good faith and without
prejudicing anybody; and
(f) when the surname causes embarrassment and there is no
showing that the desired change of name was for a
fraudulent purpose or that the change of name would
prejudice public interest (Republic v. Coseteng-Magpayo,
GR 189476, Feb. 2, 2011, 641 SCRA 533).

Compelling reason to justify the change of

name must be shown in adversarial proceedings
A change of one's name under Rule 103 of the Rules of
Court can be granted only on grounds provided by law.
In order to justify a request for change of name, there must be
a proper and compelling reason for the change and proof that the
person requesting will be prejudiced by the use of his official name.
To assess the sufficiency of the grounds invoked therefor, there
must be adversarial proceedings (Republic v. Mercadera, GR
186027, Dec. 8, 2010, 637 SCRA 654).

Publication when deemed valid

In the context of Section 3, Rule 103 of the Rules of Court,
publication is valid if the following requisites concur: (1) the
petition and the copy of the order indicating the date and place for
the hearing must be published;
(2) the publication must be at least once a week for three
successive weeks; and,

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
RULE
665

(3) the general

publication must be
circulation in someinnewspaper
published of
the province,

GR

as the court shall deem best.

Another validating ingredient relates to the caveat against
the petition being heard within thirty (30) days prior to an
election or within four (4) months after the last publication of
the notice of the hearing (Republic v. Bo/ante, 160597, July 20,
2006, 494 SCRA 729).

Difference in spelling of name in the petition

a substantial defect

The defect in the petition (for change of name) and the

order as to the spelling of the name of the petitioner is
substantial because it did not correctly identify the party to said
proceedings. The difference of one letter in a name may mean
the distinction of identity of one person with that of another and
may be considered sufficient basis for the denial of the petition
(Tan v. Republic, GR L-16384, Apr. 26, 1962, 4 SCRA 1128).

Corrections for clerical errors may be set

right under Rule 108
In petitions for correction, only clerical, spelling,
typographical and other innocuous errors in the civil registry
may be raised. Considering that the enumeration in Section 2,
Rule 108 of the Rules of Court also includes "changes of name,
" the correction of a patently misspelled
name is covered by Rule 108.

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 669

Not all alterations allowed in one's name are confined under

Rule 103. Corrections for clerical errors may be set right under
Rule 108 (Republic v. Mercadera, GR 186027, Dec. 8, 2010,
637 SCRA 654).

668

divorcee need not seek judicial confirmation of the change in

her civil status in order to revert to her maiden name as the use
of her former husband's name is optional and not obligatory for
her (To/entino, Civil Code, p. 725, 1983 ed, A/t 373, CC).

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION

666 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION

SECTION 4 RULE 103. HEARING

Who may appear at the hearing
In a petition for change of name, any interested person may
appear at the hearing and oppose the petition. Likewise, the
Solicitor General or his deputy shall appear on behalf of the
Government (Republic v. Bolante, GR 160597, July 20, 2006, 495
SCRA 729, citing Sec. 4, Rule 103, ROC).

SECTION 5 RULE 103. JUDGMENT

Upon satisfactory proof in open court on the date fixed in
the order that such order has been published as directed and
that the allegations of the petition are true, the court shall, if
there exists proper and reasonable cause for changing the name
of the petitioner, adjudge that such name be changed in
accordance with the prayer of the petition (Sec. 5, Rule 103,
ROC).
Wife and minor children of petitioner need to
file a separate petition
The wife and minor children of a person whose petition for
change of name had been granted need to file a separate
petition for change of name to conform to that of husband-
father.
Section 2 of Rule 103 of the Rules of Court provides that a
petition for a change of name shall be signed and verified by
the person desiring his name to be changed, or some other
person in his behalf. There is need for a separate petition to be
filed by the wife who is already of age in her own behalf and in
behalf of her minor children (Secan Kok v. Republic, GR L-
27621, Aug. 30, 1973, 52 SCRA 322).

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 671

667

SECTION 6 RULE 103. SERVICE OF JUDGMENT

civil registrar to be furnished copies djudgments
or orders
Judgments or orders rendered in connection with Rule
103 of the Rules of Court shall be furnished the civil
registrar of the municipality or city where the court issuing
the same is situated who shall forthwith enter the same in the
civil register (Sec. 6, Rule 103, ROC).

change of name does not change existing family

relations
A mere change of name would not cause a change in one's
existing family relations, nor create new family rights and duties
where none exists before. Neither would it affect a person's legal
capacity, civil status or citizenship. What would only be altered
is the word or group of words by which he is identified and
distinguished from the rest of his fellow men (Ang Chay v.
Republic, GR L-28507, July 31, 1970, 34 SCRA 224).

Married woman need not secure judicial

authority to use husband's surname
When a woman marries a man, she need not apply and/or
seek judicial authority to use her husband's name by prefixing
the word "Mrs." before her husband's full name or by adding
her husband's surname to her maiden first name. The law grants
her such right (Yasin v. Judge, Shari'a District court, GR 94986,
Feb. 23, 1995, 241 SCRA 606, citing Art. 370, CC).

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
Similarly, when the marriage ties or vinculum no longer exists
as in the case of death of the husband or divorce as authorized by
the Muslim Code, the widow or
105

669

RULE 104. VOLUNTARY DISSOLUTION OF

CORPORATIONS (DEEMED REPEALED BY SECTIONS
117
TO 122, TITLE XIV, BATAS PAMBANSA BLG. 68
OR THE CORPORATION CODE)

RULE 105
JLJDICIAL 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 (which no longer exists).

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.

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 673
Sec. 3. Order for hearing.—Upon the filing of the petitiom the
court, b an order recitin the ur ose o
670

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.—lf, 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 dut it shall be to enter the same in the re ister.

671

RULE 105. JUDICIAL APPROVAL OF

VOLUNTARY

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
REcOGNlTlON OF MINOR NATURAL CHILDREN
classes of children under the Family Code
Under the Family Code (Executive Order No. 209, as
amended by Executive Order No. 227), there are only
two
(2) classes of children:
(a) legitimate; and (b)
illegitimate.
Previously, under the provisions of the Civil Code,
illegitimate children were generally classified into two
groups:

(1) natural, whether actual or by legal fiction; and

(2) spurious, whether incestuous, adulterous or illicit (Reyes v.
CA, GR L-39537, Mar. 19, 1985, 135 SCRA 439).
A natural child is one born outside a lawful wedlock
of parents who, at the time of conception of the child, were not
disqualified by any impediment to marry each other (Ah. 269,
CC).
On the other hand, a spurious child is one born of parents
who, at the time of conception, were disqualified to marry
each other on account of certain legal impediments (See Ad. 269
in relation to Ad. 287, CC).
The fine distinctions among the various types of illegitimate
children have been eliminated in the Family Code (Briones v.
Miguel, GR 156343, Oct. 18, 2004, 440 SCRA 455).

672

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 675
Establishment of filiation by illegitimate
children same as for legitimate children
Illegitimate children may establish their filiation "in the
same way and on the same evidence as legitimate children" (Ad.
175, FC; see Castro v. CA, GR 50974-75, May 31, 1989, 173
SCRA 656).

Kinds of recognition of natural children

Recognition of natural children may either be:
(a) voluntary; or
(b) compulsory.

Voluntary recognition of a natural child

Voluntary recognition 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 its consequences.

Form prescribed for voluntary recognition

The form is prescribed by Article 278 of the Civil Code. It
provides that a voluntary recognition shall be made in:
(1) the record of birth;
(2) a will;
(3) a statement before a court of record; or
(4) in any authentic writing.

673 compulsory recognition

compulsory recognition is sometimes also called judicial
recognition to distinguish it from that which is a purely
voluntary act of the parent. It is recognition decreed by final
judgment of a competent court and is governed by:

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
(a) Articles 283 and 284 of the Civil Code setting forth the
cases in which the father or mother, respectively, is
obliged to recognize a natural child; and
(b) Article 285 providing that, generally, the action for
recognition of natural children may be brought only during
the lifetime of the presumed parents [Article 173 of the
Family Code declares that the action to claim legitimacy
may be brought by the child during his or her lifetime and
shall be transmitted to the heirs should the child die during
minority or in a state of insanity. In the cases, the heirs shall
have a period of five (5) years within which to institute the
action. The action already commenced by the child shall
survive notwithstanding the death of either or both of the
parties].

Necessity ofjudicial approval for the efficacy of

voluntary recognition
The matter of whether or not judicial approval is needful for the
efficacy of voluntary recognition is dealt with in Article 281 of the
Civil Code (which provision was not reProduced in the Family
Code), to wit:
"Art. 281. A child who is of age cannot be recognized
without his consent.
674

"When the recognition of a minor does not take place in a

record of birth or in a will, judicial approval shall be necessary.
"A minor can in any case impugn the recognition within four
years following the attainment of his major-

In other words, judicial approval is not needed if a recognition is

voluntarily made:
(1) of a person who is of age, only his consent being
necessary; or

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 677
(2) of a minor whose acknowledgment is effected in a record
of birth or in a will (Gapusan-Chua v. CA, GR L-46746,
Mar. 15, 1990, 183 SCRA 160).
On the other hand, judicial approval is needful if the recognition of
the minor is effected not through a record of birth or in a will but
through a statement in a court of record or an authentic document. In
any case, the individual recognized can impugn the recognition within
four (4) years following the attainment of his majority [Apparently,
there is no provision in the Family Code governing impugnation by the
recognized child of his recognition, What the Code dealt with is an
action to impugn by the husband or the heirs of the person recognizing
(Arts. 170, 171, FC).

Court approval of acknowledgment

required to assure that it will not work to
the detriment of the child
If in certain cases (Art. 281, CC) the law demands the
admission of the paternity or maternity approved by the Court, it
does so merely to assure that the effects of the acknowledgment
will not be detrimental to the child (Reyes v. Zuzuarregui, GR 1-
10010, Oct. 31, 1957, 102 Phil. 346).
105

675
Requirement ofjudicial approval intended for the benefit of
the minor
The requirement of judicial approval imposed by ArtiCle 281 is
clearly intended for the benefit of the minor.
The lack of judicial approval cannot impede the effectivity of
the acknowledgment made. The judicial approval is for the
protection of the minor against any acknowledgment made to his
prejudice (See Guarifia v. Guarifia-

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
Lack ofjudicial approval not a defect available to
the recognizing parent but one which the minor
may raise or waive
The lack or insufficiency of judicial approval is not a defect
available to the recognizing parent but one which the minor may raise
or waive. If, after reaching majority, the minor consents to the
acknowledgment, the lack of judicial approval should make no
difference (Ibid.).

How implied consent to the acknowledgment may

be shown
Implied consent to the acknowledgment may be shown (e.g.,) by
such acts as keeping, even after reaching the age of majority, the
acknowledgment papers and the use of the parent's surname (See
Javelona v. Montec/aro, GR L-48464, Oct. 4, 1943, 74 Phil, 393).

How filiation of legitimate or illegitimate children

may be established
The ramily Code (Executive Order No. 209, as amended) which
has "retroactive effect insofar as it does not prejudice or impair vested
or acquired rights in accor-
676

dance with the Civil Code or other laws" (Art, 256, FC) provides that
the filiation of legitimate (or illegitimate) children may be established
by:
(a) the record of birth appearing in the civil register or a final
judgment; or
(b) an admission of legitimate filiation in a public document or a
private handwritten instrument signed by the parent
concerned; and
In the absence of the foregoing evidence, the legitimate
filiation may be proved by:
(I) the open and continuous possession of the status of a
legitimate child; or

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 679
(2) any other means allowed by the Rules of Court and special
laws (Art. 172, FC).
Rules on voluntary recognition applies to both
legitimate and illegitimate children
There is nothing in the nature of a voluntary acknowledgment
or recognition that would make its application to illegitimate
children not natural contrary to law, morals or public policy. If the
Civil Code fails to mention such recognition in connection with these
children, it is not because their voluntary acknowledgment is
forbidden but because it is seldom encountered, since an admission of
paternity of a spurious child involves an admission of their adultery,
concubinage or incest (Reyes, J.B.L., concurring and dissenting op.,
De Reyes v. Zuzuarregui, GR L-10010, Oct. 31, 1957, 102 Phil. 346).

077

Illegitimate filiation to bc established

same manner as that of illegitimate
children
Under Article 175 of the Family Code (Executive Order No,
209, as amended), illegitimate filiation may be established in
the same way and on the same evidence as that of legitimate
children, The action must be brought within the same period
specified in Article 173, except when the action is based on the
second paragraph of ArtiCle 172 in which case the action may
be brought during the lifetime of the alleged parent.
Article 172 provides the various forms of evidence by which
legitimate filiation is established, thus:
"Art. 172. The filiation of legitimate children is established by
any of the following:
(1) The record of birth appearing in the civil register
or a final judgment; or

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument 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."

When action to claim legitimacy may be

brought by the child or heirs
The action to claim legitimacy may be brought by the child during
his or her lifetime and shall be transmitted to
680

SECTION 1 RULE 105. VENUE

Petition forjudicial approval of voluntaty
recognition of a minor child
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 Regional Trial Court of the
province in which the child resides (Sec. 1, Rule 105, ROC).

SECTION 2 RULE 105. CONTENTS OF PETITION

Allegations to be contained in the 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; and

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 681
(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. 2, Rule 105, ROC).

SECTION 3 RULE 105. ORDER FOR HEARING

Court to fix date and place for hearing
Upon the filing of the petition, the court, by an order reciting the
purpose of the same, shall fix the date an d place for the hearing thereof
which date shall not be more
678 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION

the heirs should the child die during minority or in a state of

insanity.
In these cases, the heirs shall have a period of five (5) years
within which to institute the action. The action already
commenced by the child shall survive notwithstanding the death
of either or both of the parties (See Ad. 173,

High standard of proof required to establish

illegitimate filiation under the second
paragraph of Article 172 of the Family Code
For the success of an action to establish illegitimate filiation
under the second paragraph, a "high standard of proof" (See
Ba/uyut v. Baluyut, GR L-33659, June 14, 1990, 186 SCRA
506) is required.
To prove open and continuous possession of the status of an
illegitimate child, there must be evidence of the manifestation of the
permanent intention of the supposed father to consider the child as
his by continuous and clear manifestations of parental affection and
care which cannot be attributed to pure charity.
Such acts must be of such a nature that they reveal not only the
conviction of paternity but also the apparent desire to have and treat
the child as such in all relations in society and in life, not accidentally

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
but continuously (See Mendoza v. CA, GR 86302, sept. 24, 1991,
201 SCRA 675).

Certificates issued by the local civil registrar

and the baptismal certificates inadmissible in
evidence as proof of filiation

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 683
FILE f05

679 The certificates issued by the Local Civil Registrar

and the baptismal certificates may not be taken as

circumstantial evidence to prove an illegitimate child's filiation.

since they are per se inadmissible in evidence as proof of
filiation, they cannot be admitted indirectly as circumstantial
evidence to prove the same (Jison v. CA, GR 124853, Feb. 24,
1998, 286 SCRA 495).

DNA testing as proof of filiation or paternity

In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA
testing which examines genetic codes obtained from body cells
of the illegitimate child and any physical residue of the long
dead parent could be resorted to. A positive match would clear
up filiation or paternity (Agustin v. CA, GR 162571, June 15,
2005, 460 SCRA 315).
Authentic writing for purposes of voluntary recognition

An 'authentic writing' for purposes of voluntary recognition

is understood as a genuine or indubitable writing of the father
(or mother), including a public instrument (one acknowledged
before a notary public or other competent
official with the formalities required by law) and a public or official
document in accordance with Section 20, Rule 132 of the Rules of
Court (Gapusan-Chua v. CA, GR L-46746. Mar. 15, 1990, 183
SCRA 160).

Consent of a person of age may be given expressly or

tacitly
The consent required by Article 281 of the Civil Code Of a
person of age who has been voluntarily recognized may be
given expressly or tacitly (Donado v. Donado, GR 1-33658,
Mar. 24, 1931, 55 Phil. 861).
FILE 105

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
than six (6) months after the entry of the order and shall also
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. 3, Rule 105, ROC).

sECTION4 RULE 105. OPPOSITION

Any interested party may file

opposition to the petition
Within fifteen (15) days from service or from the last date of
publication of the order referred to in Section 3, Rule 105 of the
Rules of Court, any interested party must fife his opposition to
the petition, stating the grounds or reasons therefor (Sec. 4, Rule
105, ROC).

SECTION 5, RULE 105. JUDGMENT

Court may renderjudgment granting
judicial approval of recognition
The court shall render judgment granting judicial approval
of recognition if it is satisfied from the evidence presented
during the hearing:
(1) that he recognition of the minor natural child was
willingly and voluntarily made by the parent or parents
concerned; and

(2) that the recognition is for the best interest of the child
(Sec. 5, Rule 105, ROC).
SECTION 6 RULE 105. SERVICE OF JUDGMENT
UPON CIVIL REGISTRAR
Copy of the judgment to be served upon the
civil registrar

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 685
A copy of the judgment rendered in accordance with Section
5, Rule 105 of the Rules of Court shall be served upon the civil
registrar whose duty it shall be to enter the same in the register
(Sec. 6, Rule 105, ROC).

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
tC'6

RULE 106. CONSTITUTION OF FAMILY HOME

(DEEMED REPEALED BY ARTICLES 252 TO 253 OF
EXECUTIVE ORDER NO. 209 OR THE FAMILY
CODE)

Family home need not be constituted

Under the Family Code (Executive Order No. 209, as
amended), a family home is deemed constituted on a house and
lot from the time it is occupied as a family residence. There is no
need to constitute the same judicially or extrajudicially as
required in the Civil Code.

If the family actually resides in the premises, it is, therefore, a

family home as contemplated by law. Thus, the creditors should
take the necessary precautions to protect their interest before
extending credit to the spouses or head of the family who owns
the home (Modequillo v. Breva, GR 86355, May 31, 1990, 185
SCRA 766).

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 687

RULE 107
ABSENTEES

Sec. 1. Appointment of representative.—When

person disappears from his domicile, his whereabouts
being unknown, and without having left an agent to
administer his property, or the power conferred upon the
agent has expired, any interested party, relative or friend,
may
petition the Court of First Instance of the place where the
absentee resided before his disappearance for the ap-
pointment of a person to represent him provisionally in
that may be necessary. In the City of Manila, the petition
shall be filed in the Juvenile and Domestic Relations Court
(which no longer exists).

Sec. 2. Declaration of absence; who may petition.—

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

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
f07

petition.—The petition for the

Sec, 3. Contents of or for the declaration of of a
appointment of a trustee or an adminis-
representative, absence and
the appointment trator, must
show the following: and residences of the heirs
(a) The jurisdictional facts; incopy of which shall be
prerelatives who would
(b) The names, ages,succeed
stituted in the will,
sented, and of the by
residences of creditors and
the law of intestacy;
othany adverse interest over
(c) The names and ers
the
who may have
property of the
absentee; location and character of the
the absentee.
(d) The probable value,
property belonging notice and publication
to the appointment of a repreof
absence and the apadministrator,
Sec. 4. Time of hearing;
is filed, the court hearing thereof
thereof—When a petitionwhere for all the petition.
sentative, or for the
declaration pointment of atime and place fixed for
trustee or shall fix a date andthe the known heirs,
place for the concerned may legatees, interested
appear to contest persons, at least the
hearing, and shall be (3)
Copies of the notice of theconsecutive weeks the
hearing shall be served upon hearing, in a
devisees, creditors and other newspaprovince or city
ten (10) days before the day of where the deem best.
published once a week for
three Prior to the time appearing to contest
designated for Per of general his grounds therefor, and
tioner and other
interested
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 689
circulation in the absentee
resides, as the court shall
Sec. 5. Opposition.—Anyone
the petition shall state in writing serve a co thereof on the eti

parties on or before the date designated for the hearing.

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Sec. 6. Proof at hearing; order.—At the hearing,
CamScan
compliance with the provisions of section 4 of this 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
administrator for the absentee. The judge shall take rule
necessary measures to safeguard the rights and interests of
the absentee and shall specify the powers, obligations and
remuneration of his representative, trustee or or
the
administrator, regulating them by the rules concerning
guardians.
In case of declaration of absence, the same shall
not take effect until six (6) months after its publication
in newspaper of general circulation designated by the
court and in the Official Gazette.
Sec. 7. Who may be appointed.—ln the appointment
of a representative, the spouse present shall be preferred
when there is no legal separation. If the absentee left no
spouse, or if the spouse present is a minor or othenvise
incompetent, any competent person may be appointed by
the court.
In case of declaration of absence, the trustee or
administrator of the absentee's property shall be appointed
in accordance with the preceding paragraph.

Sec. 8. Termination of administration.—The

trusteeship or administration of the property of the
absentee shall cease upon order of the court in any of the
following cases:

(a) When the absentee appears personally or by

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION

107

his testate or intestate heirs appear;

(c) When a third person appears, showing by a
proper document that he has acquired the
absenproperty by purchase or other title.

cases the trustee or administrator shall cease

performance of his office, and the property shall be
the disposal of those who may have a right
tee's

In these in the
placed at thereto.

RULE 107. ABSENTEES

sECT/ON 1, RULE 107. APPOINTMENT OF REPRESENTATIVE

Who may file petition for appointment

of representative
When a person disappears from his domicile, his
whereabouts being unknown and without having left an agent
to administer his property or the power conferred upon the
agent has expired, any interested party, relative or friend may
petition the Regional Trial Court of the place where the
absentee resided before his disappearance for the appointment
of a person to represent him provisionally in all that may be
necessary (Sec. 1, Rule 107, ROC).

Court to specify the powers, obligations and

remuneration of the appointed representative
Article 381 of the Civil Code provides:
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 691
"When a person disappears from his domicile his
whereabouts being unknown, and without leaving an agent to
administer his property the judge, at the instance of an
interested party, a relative, or a friend,
may appoint a person to represent him in all that may be necessary.
"This same rule shall be observed when under similar
circumstances the power conferred by the absentee has
expired."

The appointment referred to in Article 381 having been

made, the court shall take the necessary measures to safeguard
the rights and interests of the absentee and shall specify the
powers, obligations and remuneration of his representative,
regulating them, according to the circumstances, by the rules
concerning guardians (Att. 382, CC).

Purpose of the Rules

The purpose of the cited rules (under Arts. 381 to 386, CC) is the
protection of the interests and property of the absentee, not of the
administrator. Thus, the question of whether the administrator may
inherit the property to be administered is not controlling.
What is material is whether the administrator is one of those
allowed by law to seek the declaration of absence of the absentee and
whether he is competent to be appointed as administrator of the
absentee's estate (To/Noquera v. Vi//amor, GR 84250, July 20, 1992,
211 SCRA 616).

Judicial declaration of absence not necessary for

purpose of remarriage
For the purposes of the civil marriage law, it is not necessary
to have the former spouse judicially declared an absentee. The
declaration of absence made in accordance with the provisions of
the Civil Code has for its sole

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
107

689 purpose to enable the

taking of the necessary precautions for the administration
of the estate of the absentee.

Requisites for remarriage of spouse present

For the celebration of civil marriage, the law only
requires:
(a) that the former spouse has been absent for seven (7)
consecutive years at the time of the second marriage;
(b) that the spouse present does not know his or her former
spouse to be living;
(c) that such former spouse is generally reputed to be
dead; and
(d) that the spouse present so believes at the time of the
celebration of the marriage (Jones v. Hortiguela, GR
L-43701, Mar. 6, 1937 64 Phil. 197).

Instances when there is a need to have a

person judicially declared an absentee

There is a need to have a person judicially declared an

absentee when:

(1) he has properties which have to be taken care of or

administered by a representative appointed by the
Court (Art. 384, CC);
(2) the spouse of the absentee is asking for separation of
property (Ad. 191, CC); or
(3) his wife is asking the Court that the administration of
all classes of property in the marriage be
transferred to her (Art, 196, CC).

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 693

SECTION 2 RULE 107. DECLARATION OF ABSENCE.

WHO MA Y PETITION
Who may petition for declaration of absence and
appointment of a trustee or administrator
After the lapse of two (2) years from his disappearance and
without any news about the absentee or since the receipt of the
last news or of five (5) years in case the absentee has left a
person in charge of the administration of his property, the
declaration of his absence and appointment of a trustee or
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 death (Sec. 2,
Rule 107, ROC).

Declaration of absence need not be made in a

separate proceeding
It is not necessary that a declaration of absence be made in
a proceeding separate from and prior to a petition for
administration (Reyes v. Alejandro, GR L-32026, Jan. 16, 1986,
141 SCRA 65).

Petition to declare person absent and to

appoint an administrator may be joined in
a single proceeding

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
691
The petition to declare the husband an absentee and the
petition to place the management of the conjugal
properties in the hands of the wife could be combined and
adjudicated in the same proceeding (Peyer v.
Martinez, GR L-3500, Jan. 12, 1951, 88 Phil. 72).

sECTION 3 RULE 107. CONTENTS OF PETITION

Facts that must be shown in the petition
The petition for the appointment of a representative
or for the declaration of absence and the appointment of
a trustee or an administrator must show the following:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs
instituted in the will, copy of which shall be
presented, and of the relatives who would
succeed by the law of intestacy;
(c) The names and residences of creditors and others
who may have any adverse interest over the
property of the absentee; and

(d) The probable value, location and character of the

property belonging to the absentee (Sec. 3, Rule
107, ROC).

SECTION 4 RULE 407. TIME OF HEARING• NOTICE

AND PUBLICATION THEREOF
Court to fix date and place of hearing;
Copies of notice to be served, published
When a petition for the appointment of a representa live or
for the declaration of absence and the appointment Of a trustee
or administrator is filed, the court shall fix a
date and place for the hearing thereof where all concerned
may appear to contest the petition.
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 695
Copies of the notice of the time and place fixed for the
hearing shall be served upon the known heirs, legatees,
devisees, creditors and other interested persons at least ten
(10) days before the day of the hearing and shall be
published once a week for three (3) consecutive weeks prior
to the time designated for the hearing in a newspaper of
general circulation in the province or city where the
absentee resides, as the court shall deem best (Sec. 4, Rule
107, ROC).

SECTION 5 RULE 107. OPPOSITION

Anyone appearing to contest the petition shall state in
writing his grounds therefor and serve a copy thereof on
the petitioner and other interested parties on or before the
date designated for the hearing (Sec. 5, Rule 107, ROC).
SECTION 6 RULE 107. PROOFATHEARING• ORDER

Court to appoint representative, trustee

or administrator
At the hearing, compliance with the provisions of
Section 4 of Rule 107 of the Rules of Court must first be
shown. Upon satisfactory proof of the allegations in the
petition, the court shall issue an order granting the same
and appointing the representative, trustee or administrator
for the absentee.
The judge shall take the necessary measures to
safeguard the rights and interests of the absentee and sha ll
specify the powers, obligations and remuneration Of his
representative, trustee or administrator, regulating the m by
the rules concerning guardians (Sec. 6, Rule 107, ROC)•

107

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
6
93 Judicial declaration of absence; when to
take effect
In case of declaration of absence, the same shall not
take effect until six (6) months after its publication in a
newspaper of general circulation designated by the court
and in the Official Gazette (Sec. 6, Rule 107, ROC).

sECTlON 7 RULE 107. WHO MAY BE APPOINTED

preference in the appointment of

representative
In the appointment of a representative, the spouse
present shall be preferred when there is no legal separa-

tion. If the absentee left no spouse or if the spouse

present is a minor or otheMise incompetent, any
competent person may be appointed by the court.
In case of declaration of absence, the trustee or
administrator of the absentee's property shall be
appointed in accordance with the preceding paragraph
(Sec. 7, Rule 107, ROC).

SECTION 8 RULE 107. TERMINATION OF ADMINI

STRATION
The trusteeship or administration of the property of
the absentee shall cease upon order of the court in any
of the following cases:

(1) When the absentee appears personally or by means

of an agent;

(2) When the death of the absentee is proved and

his testate or intestate heirs appear; and

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 697
(3) When a third person appears, showing by a proper
document that he has acquired the absentee's
property by purchase or other title.

In these cases, the trustee or administrator shall cease in

the performance of his office and the property shall be placed at
the disposal of those who may have a right thereto (Sec. 8, Rule
107, ROC).

Court's judgment immediately final and

executory and not subject to appeal
The court's judgment in summary proceedings such as
the declaration of presumptive death of an absent spouse
under Article 41 of the Family Code, shall be immediately
final and executory.

Article 41, in relation to Article 247, of the Family Code

provides:

"Art. 41. A marriage contracted by any person

during subsistence of a previous marriage shall be null
and void, unless before the celebration of the
subsequent marriage, the prior spouse had been
absent for four (4) consecutive years and the spouse
present has a well-founded belief that the absent
spouse was already dead.
"In case of disappearance where there is danger of
death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two (2)
years shall be sufficient.
"For the purpose of contracting the subsequent
marriage under the preceding paragraph the spouse
present must institute a summary proceeding as provided
in this Code for the declaration of presumptive death of
the absentee, without prejudice to the effect of
reappearance of the absent spouse.

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION

695
"Art. 247. The judgment of the court shall be immediately
final and executory."

With the judgment being final, it necessarily follows

that it is no longer subject to an appeal, the dispositions and conclusions
therein having become immutable and unalterable not only as
against the parties but even as against the courts. Modification of the
court's ruling, no matter how erroneous, is no longer permissible. The final
and executory nature of this summary proceeding thus prohibits the
resort to appeal (Republic v. Cantor, GR {84621, Dec. 10, 2013, '712 SCRA
1).

Declaration of presumptive death; how

established

Before a judicial declaration of presumptive death can be

obtained, it must be shown that:
(a) the prior spouse had been absent for four (4)
consecutive years; and
(b) the present spouse had a well-founded belief that the
prior spouse was already dead.

Declaration of presumptive death; essential

requisites
Under Article 41 of the Family Code, there are four (4)
essential requisites for the declaration of presumptive death:
(1) That the absent spouse has been missing for four (4)
consecutive years, or two (2) consecutive years if the
disappearance occurred where there

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 699
is danger of death under the circumstances laid
down in Article 391 , Civil Code;

(2) That the present spouse wishes to remarry;

698

This conclusion proceeds from the premise that Article 41

of the Family Code (Executive Order No. 209, as amended)
places upon the present spouse the burden of proving the
additional and more stringent requirement of 'Well-founded
belief' which can only be discharged upon a showing of proper
and honest-to-goodness inquiries and efforts to ascertain not
only the absent spouse's whereabouts but, more importantly,
that the absent spouse is still alive or is already dead (Republic v.
No/asco, GR 94053, Mar. 17, 1993, 220 SCRA 20).

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
696 SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION

(3) That the present spouse has a well-founded

belief that the absentee is dead; and
(4) That the present spouse files a summary
proceeding for the declaration of presumptive
death of the absentee (Republic v. Cantor, GR
184621, Dec. 10, 2013, 712 SCRA 1).

Only 2-year absence required when disappearance

occurred under the circumstances laid down in Article
391 of the Civil Code;
The four-year period is reduced to two (2) years in
the following circumstances:
(a) A person on board a vessel lost during a sea
voyage, or an aeroplane (airplane) which is
missing, who has not been heard of for [two (2)]
years since the loss of the vessel or aeroplane;
(b) A person in the armed forces who has 'taken
part in a war, and has been missing for [two (2)]
years; and
(c) A person who has been in danger of death under
other circumstances and his existence has not
been known for [two (2)] years (Art. 391, CC).
Article 41 of the Family Code imposes
more stringent standard vis-å-vis
provision of the Civil Code; distinctions
Article 41 of the Family Code, compared to the old
provision of the Civil Code which it superseded, imposes
a stricter standard. It requires a 'Well-founded belief' that
the absentee is already dead before a petition for
declaration of presumptive death can be granted.

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 701

FILE

697

The crucial differences between Article 41 of the

Family code and Article 83 of the Civil Code are, to Wit:
(1) Under Article 41, the time required for the pre
gumption to arise has been shortened to four (4)
y ears; however, there is need for a judicial
declaration of presumptive death to enable the
spouse present to remarry;
(2) Article 41 of the Family Code imposes a stricter
standard than the Civil Code. Article 83 of the
Civil Code merely requires either that:
(a) there be no news that such absentee is still
alive; or
(b) the absentee is generally considered to be
dead and believed to be so by the spouse
present; or
(c) the absentee is presumed dead under
Articles 390 and 391 of the Civil Code.
The Family Code, upon the other hand, prescribes as
"well founded belief' that the absentee is already dead
before a petition for declaration of presumptive death can
be granted.
Thus, none of the following heretofore acceptable
c
cir umstances would be sufficient under the present law to
establish presumptive death:

(a) mere absence of the spouse (even for such period

required by the law);

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
(b) lack of any news that such absentee is still
alive;
(c) failure to communicate; or
(d) general presumption of absence under the Civil
Code,
699

RULE 108 OF ENTRIES

cANCELLATlON OR
CORRECTION person
IN THE CIVIL REGISTRY interconcerning the
Sec. 1. Who may file petition.--Anyrecorded in the
eSted in any act, event, order or decreecivil the
civil status of persons which has been cancellation or with
register, may file a verified petition forthe Court of of the
correction of any entry relating thereto,province located.
First Instance (now Regional Trial
Court) where the corresponding civil or
correcfollowing
registry is
entries or
Sec. 2. Entries subject to cancellationcorrected: (a)
tion.—Upon good and valid grounds, theseparations; (e)
in the civil register may be cancelled(f) judgments
births; (b) marriages; (c) deaths; (d) legalde(g) legitimaof
judgments of annulments of marriage;natural
Claring marriages void from thechilrecovery of
citidetermination
beginning; tions; (h) adoptions; (i)
of a minor; and
acknowledgments dren; (j) naturalization(o)
(k) election, loss or zenship (l) civil
interdiction; (m) judicial filiation; (n)
voluntary emancipation of changes of or correction
name. of civil registrar
and which would
Sec. 3. Parties.—When cancellationbe the
an entry in the civil register is sought,proceeding.

the filing of
fix the time and
cause reasonable
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 703
the all persons who have or claim any
interest affected thereby shall be made
parties to
Sec. 4. Notice and publicatiom—Upon the petition, the
court shall, by an order, place for the hearing of the same,
and notice thereof to be given to the persons etition. The
court shall also cause the order to be ub-

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION

fished once a week for three (3) consecutive weeks in a

newspaper of general circulation in the province.

Sec. 5. Oppositions—The civil registrar and any

person having or claiming any interest under the entry
whose cancellation or correction is sought may, within
fifteen (15) days from notice of the petition, or from the
last date of publication of such notice, file his opposition
thereto.
Sec. 6. Expediting proceedings.—The court in which
the proceeding is brought may make orders expediting the
proceedings, and may also grant preliminary injunction for
the preservation of the rights of the parties pending such
proceedings.
Sec. 7. Order.—After hearing, the court may either
dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a
certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same in his
record.

RULE 108. CANCELLATION OR

CORRECTION
OF ENTRIES IN THE CIVIL REGISTRY
A. Rule 108

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 701

Proceedings for the correction

or cancellation of entries in
the civil registry under Rule
108
Rule 108 of the Rules of Court implements judicial
proceedings for the correction or cancellation of entries in
the civil registry pursuant to Article 412 of the Civil Code
which provides: "No enfry in a civil register shall be
changed or corrected, without a judicial order. "
701

Entries in the civil register

Entries in the civil register refer to acts, events and
judicial decrees concerning the civil status of persons (Art.
407, CC), also as enumerated in Article 408 of the same

"Article 408. The following shall be entered in the

civil register:(l) Births; (2) marriages; (3) deaths; (4)
legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning;
(7) legitimations; (8) adoptions; (9) acknowledgments
of natural children; (10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) volun tary
emancipation of a minor; and (16) changes of name."

Before, only mistakes or errors of a harmless and

innocuous nature in the entries in the civil registry may be
corrected under Rule 108 and substantial errors affecting the
civil status, citizenship or nationality of a party are beyond
the ambit of the rule (Republic v. Mercadera, GR 186027,
Dec. 8, 2010, 637 SCRA 654).

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION

Cases when summary proceedings

under Rule 108 may be used
Summary proceedings provided under Rule 108 of the
Rules of Court and Article 412 of the Civil Code may

be used only to correct clerical, spelling, typographical and

Other innocuous errors in the civil registry. Substantial
or COntentious alterations may be allowed only in
adversarial Proceedings, in which all interested parties are
impleaded and due process is observed (Republic v,
Labrador, GR 132980, Mar. 25, 1999, 364 Phil. 934).
Substantial errors or matters in a
civil registry may now be
corrected in proper adversary
proceedings
In Republic v. Valencia (GR L-32181, Mar. 5, 1986,
141 SCRA 462), the court adopted the view that even
substantial errors or matters in a civil registry may be
corrected and the true facts established, provided the
parties aggrieved avail themselves of the appropriate
adversary proceeding.
If the purpose of the petition is merely to correct the
clerical errors which are visible to the eye or obvious to
the understanding, the court may, under a summary
procedure, issue an order for the correction of a mistake.
However, changes which may affect the civil status
from legitimate to illegitimate, as well as sex, are
substantial and controversial alterations which can only be
allowed after appropriate adversary proceedings depending
upon the nature of the issues involved.
Changes which affect the civil status or citizenship of
a party are substantial in character and should be threshed
out in a proper action depending upon the nature of the

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 703

issues in controversy, and wherein all the parties who may

be affected by the entries are notified or represented and
evidence is submitted to prove the allegations of the
complaint, and proof to the contrary admitted (Lee v. CA,
GR 118387, Oct. 11, 2001, 419 Phil. 392),
Where such a change is ordered, the Court will not be
establishing a substantive right but only correcting or
rectifying an erroneous entry in the civil registry as
authorized by law. In short, Rule 108 of the Rules of Court
provides only the procedure or mechanism for the proper
enforcement of the substantive law embodied in Article
412 of the

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
FILE 108

civil Code and so does not violate the Constitution

(Chiao Ben Lim v. zosa, GR L-40252, Dec. 29, 1986,
230 Phil.
444),

B. Republic Act No. 9048, as amended

RA 9048, as amended by RA
10172, allows administrative
correction of clerical or
typographical errors
On 22 March 2001, Republic Act No. 9048 was
passed providing for an exception: for clerical or
typographical errors and change of first name or
nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul
general in accordance with the provisions of said law
and its implementing rules and regulations.
The law (RA 9048) removed from the ambit of Rule
108 of the Rules of Court the correction of clerical or typo
graphical errors (Onde v. The Office of the Local Civil
Registrar of Las Pifias City, GR 197174, Sept. 10, 2014, 734
SCRA 66).

Corrections that can be made under

RA 9048

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 705
RA 9048 was subsequently amended by RA 10172
which additionally allows the following corrections in
civil registry documents:
(a) correction of "clerical or typographical errors" in
any entry in civil registry documents as such er
rors are defined in Section 1 of RA 9048, as amended; and

(b) change of a person's first name in his/her civil

registry document under certain grounds speci-
fied under the law through administrative process
(http://web0.psa.gov.phO.

Clerical error defined

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: Provided, however, That no correction must
involve the change of nationality, age, or status of the
petitioner (Sec. 1, RA 9048, as amended by RA 10172).
Authority to correct clerical or
typographical error and change of first
name or nickname underRA 10172
Section 1 of Republic Act No. 10172 which was
enacted on August 15, 2012 to amend the provisions of
RA 9048 provides that:

"No entry in a civil register shall be changed

or corrected without a judicial order, except for

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
clerical or typographical errors and change of first
name or nickname, the day and month in the date of
birth or sex of a person where it is patently clear that
there was a clerical or typoqraphical error or mistake
in the entry, which can be corrected or changed by
the concerned city or municipal civil registrar or
consul general in accordance with the provisions of
this Act and its implementing rules and regulations"
(Amendment to Sec. 1 of RA 9048 underscored).
FÜLE

RA d0f72 extends authority under RA

9048 to correct patent errors in the date
of birth or sex of a person
The authority granted under RA 9048 was extended
further by RA 10172 so as to allow administrative
changes in clerical or typographical errors,
clear that there was a clerical or
tvpoqraphical error or pertainin g to :
(a) the day and month in the date of birth; or
(b) the sex of a person (Emphasis supplied).
Who may file the petition under RA 9048 for
correction of clerical or typographical error
The petition for correction of clerical or typographical
error may be filed by a person of legal age who must have
a direct and personal interest in the correction of the error
or in the change of first name in the civil register.
A person is considered of legal age when he is
eighteen (18) years old and above. Thus, a minor (less than
18 years old) cannot by himself file a petition, either for

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 707
correction of clerical or typographical error or for change
of his first name.
Only the following persons are considered to have a
direct and personal interest in the correction of clerical
error or change of first name:
(a) The owner of the record that contains the error to
be corrected or first name to be changed; and
(b) The (record) owner's spouse, children, parents,
brothers, sisters, grandparents, guardian, or any
other person duly authorized by law or by the
owner of the document sought to be corrected
(http://web0.psa.gov.ph0.

Form and contents of the petition

The petition for correction of clerical error should be
accomplished properly and in the prescribed form. Section 5
of RA 9048 and Rule 8 of NSO (now PSA) Administrative
Order No. 1, S, 2001 require that the petition should be in
the form of an affidavit, hence, it should be subscribed and
sworn to before a person authorized to administer oath.
Basically, the petition must contain the following facts
or information:
(a) the merits of the petition;
(b) the competency of the petitioner; and
(c) the erroneous entry to be corrected and proposed
correction; first name to be changed and the
proposed new first name (Ibid.).

Supporting documents required for

correcting a clerical or
typographical error in a civil
registry document

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
The petition shall not be processed unless the petitioner
supports it with the required documents, The supporting
documents should be authentic and genuine, otherwise, the
petition shall be denied or disapproved pursuant to Rule 5.8
of NSO (now PSA) Administrative Order No. 1, S. 2001.
The following supporting documents are admissible as basic
requirements:
(a) Certified machine copy of the certificate containing the
alleged erroneous entry or entries;
(b) Not less than two (2) public or private
documents upon which the correction shall
be based. Examples of these documents are
the following:
(1) baptismal certificate;
(2) voter's affidavit;
(3) employment record;
(4) GSIS/SSS record;
(5) medical record;
(6) school record;
(7) business record;
(8) driver's license;
(9) insurance;
(10) land titles;
(11) certificate of land transfer;
(12) bank passbook; (13) National Bureau
of Investigation (NBI)/ police clearance;
( 14) civil registry records of ascendants; and
(15) others;

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 709
(c) Notice and Certificate of Posting;
(d) Certified machine copy of the Official Receipt of
the filing fee; and
(e) Other documents as may be required by the C/MCR
(Ibid.).
SECTION RULE 108. WHO MAY FILE PETITION

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
708

Any interested person may file a

verified petition for cancellation or
correction of any entry in the civil
registry
Any person interested in any act, event, order or decree
concerning the civil status of persons which has been
recorded in the civil register may file a verified petition for
the cancellation or correction of any entry relating thereto,
with the Regional Trial Court of the province where the
corresponding civil registry is located (Sec. 1, Rule 108,
ROC).

Substantial errors now within the

scope of the rule
As earlier stated, Rule 108 implements judicial
proceedings for the correction or cancellation of entries in
the civil registry pursuant to Article 412 of the Civil Code.
Entries in the civil register refer to "acts, events and judicial
decrees concerning the civil status of persons," also as
enumerated in Article 408 of the same law.

Before, only mistakes or errors of a harmless and

innocuous nature in the entries in the civil registry may be
corrected under Rule 108 and substantial errors affecting the
civil status, citizenship or nationality of a party are beyond
the ambit of the rule (Republic v. Mercadera, GR 186027,
Dec. 8, 2010, 637 SCRA 654).

RA 9048 removes correction of certain

errors from scope of Rule 108

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 711
Rule 108 of the Rules of Court now applies only to
substantial changes and corrections in entries in the civil
register. The determination of a person's sex appearing in
his birth certificate is a legal issue and the court must look

to the statutes. In this connection, Article 412 of the

Civil code provides:
"ART. 412. No entry in a civil register shall be changed or
corrected without a judicial order."

Together with Article 376 of the Civil Code, this

provision was amended by Republic Act No. 9048
insofar as clerical or typographical errors are involved.
The correction or change of such matters can now be
made through administrative proceedings and without
the need for a judicial order (Republic v. Cagandahan,
GR 166676, Sept. 12, 2008, 565 SCRA 72).

Rule 108 now applies only to substantial

changes and corrections
In effect, RA 9048, as amended, removed from the ambit
of Rule 108 of the Rules of Court the correction of such
errors. Rule 108 now applies only to substantial changes
and corrections in entries in the civil register (Ibid.).

Entries envisaged in Article 412 of the

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
Civil Code and correctible under Rule
108
The entries envisaged in Article 412 of the Civil
Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the
Civil Code:
"ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall be re corded in
the civil register.

"ART. 408. The following shall be entered in civil

register:
710

"(1) Births; (2) marriages; (3) deaths; (4) legal

separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name."
The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that occur
after birth (Si/verio v. Republic, supra.).

Change of sex a substantial

change
Under RA 9048, as amended, a correction in the civil
registry involving the change of sex is not a mere clerical
or typographical error. It is a substantial change for which
the applicable procedure is Rule 108 of the Rules of Court

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 713
(Si/veno v. Republic, GR 174689, Oct. 19, 2007, 537
SCRA 373).

Correction on fact of parents' marriage a

substantial change
Correcting the entry on a petitioner's birth certificate
that his parents were married on a given date and place to
"not married" is a substantial correction requiring
adversarial proceedings. Said correction is substantial as it
will affect his legitimacy and convert him from a legitimate
child to an illegitimate one (Onde v. Office of the Local
Civil Registrar of Las Pinas City, GR 197174, Sept. 10,
2014, 734 SCRA 66).

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
RULE 108

corrections on citizenship,
legitimacy of paternity or filiation, or
legitimacy of marriage deemed
substantial changes
corrections of entries in the civil register including
those on citizenship, legitimacy of paternity or filiation, or
legitimacy of marriage, involve substantial alterations.
substantial errors in a civil registry may be corrected and
the true facts established provided the parties aggrieved by
the error avail themselves of the appropriate adversary
proceedings (Republic v. Uy, GR 198010, Aug. 12, 2013,
703 SCRA 425).

proceeding in rem; jurisdiction

over the person of petitioner not
required
Substantial corrections or cancellations of entries in
civil registry records affecting the status or legitimacy of
a person may be effected through the institution of a
petition under Rule 108 of the Revised Rules of Court
with the proper Regional Trial Court.

Being a proceeding in rem, acquisition of jurisdiction

over the person of petitioner is therefore not required. It is
enough that the trial court is vested with jurisdiction over the
subject matter (Alba v. CA, GR 164041, July 29, 2005, 465
SCRA 45).

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 715
Contents of petition under Rule 108
A petition for change of name shall be signed and
Verified by the person desiring his name changed
or some Other person on his behalf. It shall contain the
following:
(1) A declaration that the petitioner has been a bona
fide resident of the province where the petition is
filed for at least three (3) years prior to the date of
such filing;
(2) The cause for which the change of the petitioner's
name is sought;
(3) The name asked for; and
(4) All names by which petitioner is known (Secan
Kok v. Republic, GR L-27621, Aug. 30, 1973,
52 SCRA 322).

Failure to set forth all aliases of the

applicant in the petition's title a fatal
defect
All aliases of the applicant must be set forth in the pe
tition's title; otherwise, such defect would be fatal even if
said aliases are contained in the body of the petition (Go
Chiu Beng v. Republic, GR L-29574, Aug. 18, 1972, 46
SCRA 617).

Lack of verification not a ground for dismissal

Verification is not a jurisdictional but a formal requisite.
The jurisdiction of the court is not affected by the absence of
the proper verification of the petition. The lower court can
require the petitioner to have his petition verified before
setting the case for hearing in order to have the petition

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
conform with the rule (Oshita v. Republic, GR L21180, Mar.
31, 1967, 19 SCRA 700).

Service and publication of the order; case

law
The service of the order at No. 418 Arquiza St.,
Ermita, Manila and the publication thereof in a newspaper
of general circulation in Manila, sufficiently complied
with the requirement of due process, the essence of which is
an opportunity to be heard. Moreover, the publication Of
the
order is a notice to all indispensable parties, including
Armi and petitioner minor, which binds the whole
world to the judgment that may be rendered in the
petition (Alba v. CA, GR 164041, July 29, 2005, 465
SCRA 495).
The petition for annulment and cancellation of the
birth certificate of Rosilyn alleging material entries in
the
certificate as having been falsified is properly considered
as a special proceeding pursuant to Section 3(c), Rule 1
and Rule 108 of the Rules of Court.

SEC. 2 RULE 108. ENTRIES SUBJECT TO CANCELLATION

OR CORRECTION

Entries subject to cancellation or

correction under Rule 108
The following entries in the civil register may, upon good
and valid grounds, be cancelled or corrected:

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 717
(a) births;
(b) marriages;
(c) deaths;
(d) legal separations;
(e) judgments of annulments of marriage;

(f) judgments declaring marriages void from the be

ginning;
(g) legitimations;
(h) adoptions;

(i) acknowledgments of natural children;

(j) naturalization;
(k) election, loss or recovery of
citizenship;
(l) civil interdiction;

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
(m) judicial determination of filiation;
(n) voluntary emancipation of a minor; and
(o) changes of name (Sec. 2, Rule 108, ROC).
SECTION3 RULE 108. PARTIES.

Civil Registrar and all affected to be

made patties to the proceeding
When cancellation or correction of an entry in the
civil register is sought, the civil registrar and all persons
who have or claim any interest which would be affected
thereby shall be made parties to the proceeding (Sec. 3,
Rule 108, ROC).

Failure to comply with the

requirements of Rule 108 of the
Rules of Court for correction of
entries in the civil register fatal to
the petition
Section 3, Rule 108 of the Rules of Court requires that
the Civil Registrar and all persons who have or claim any
interest which may be affected thereby shall be made
parties to the proceeding.
Thus, the petition must conform and comply with the
provisions of Rule 108 of the Rules of Court and should the
petitioner fail to comply therewith, the trial court will commit
no error in dismissing the petition (Yu v. Civil Registrar of
Manila, GR L-36478, Apr. 29, 1983, 121 SCRA 873).

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 719
All possible indispensable patties must
be duly notified of the proceedings;
case law
ot
Under Section 3, Rule 108 of the Rules of Court, n
only the civil registrar but also all persons who have or

claim any interest which would be affected by a proceeding

concerning the cancellation or correction of an entry in the
civil register must be made parties thereto.
As enunciated in Republic v. Benemerilo (GR
146963, Mar. 15, 2004, 425 SCRA 488), unless all
possible indispensable parties were duly notified of the
proceedings, the same shall be considered as falling
much too short of the requirements of the rules.
Here, it is clear that no party could be more
interested in the cancellation of Rosilyn's birth
certificate than Rosilyn herself, Her filiation,
legitimacy, and date of birth are at stake.
Lack of summons not cured by publication;
case law
The lack of summons on Rosilyn was not cured by the
publication of the order of the trial court setting the case
for hearing for three consecutive weeks in a newspaper of
general circulation. Summons must still be served, not for
the purpose of vesting the courts with jurisdiction, but to

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION

comply with the requirements of fair play and due

process (Ceruila v. Delantar, GR 140305, Dec. 9, 2005,
477 SCRA 134).

SECTION 4 RULE 108. NOTICE AND PUBLICATION

Court order fixing the time and

place for the hearing to be
published
Upon the filing of the petition, the court shall, by
an Order, fix the time and place for the hearing of
the same and cause reasonable notice thereof to be
given 'to the persons named in the petition.
The court shall also cause the order to be published
once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province (Sec, 4,
Rule 108, ROC).

Court orders after the filing of the

petition
The court in which the petition is filed shall or may
make orders:
(a) fixing the date and place for the hearing of the
petition;
(b) causing reasonable notice to be given to the
persons named in the petition;
(c) causing the order to be published once a week
for three (3) consecutive weeks in a newspaper
of general circulation in the province;

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 721
(d) making orders expediting the proceedings and
also granting, when warranted, a preliminary
injunction for the preservation of the parties'
rights pending such proceedings; and
(e) granting or denying the petition. In either case, a
certified copy of the judgment shall be served
upon the civil registrar concerned who shall
annotate the same.
SECTION 5 RULE 108. OPPOSITION
The civil registrar and any person having or claiming
any interest under the entry whose cancellation or correction
is sought may, within fifteen (15) days from notice of the
petition or from the last date of publication of such notice,
file his opposition thereto (Sec. 5, Rule 108, ROC).
RULE 108

SECTION 6 RULE 108. EXPEDITING PROCEEDINGS

court may grant preliminary injunction

The court in which the proceeding is brought may

make orders expediting the proceedings and may also
grant preliminary injunction for the preservation of the
rights of the parties pending such proceedings (Sec. 6,
Rule 108, ROC).

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
SECTION 7 RULE 108. ORDER

Certified copy of the judgment to be

served upon the civil registrar
After the hearing, the court may either dismiss the
pe-

tition or issue an order granting the cancellation or correction

prayed for. In either case, a certified copy of the judgment
shall be served upon the civil registrar concerned who shall
annotated the same in his record (Sec. 7, Rule 108, ROC).

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 723

RULE 109
APPEALS IN SPECIAL PROCEEDINGS

Section 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 (now Regional Trial Court)
or a Juvenile and Domestic Relations Court (which no
longer exists), 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.

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
RULE 109

719

section 2. Advance distribution in special

ings.—Notwithstanding a Pendingproceedcontroversy or
proceedings to settle the estate of appeal in a decedent, the
may, in its discretion and upon court terms as it may
such proper and just, permit that deem part of the estate
such be affected by the may not appeal be
controversy or among the heirs ordistributed compliance
legatees, upon conditions set forthwith the this rules.
in Rule 90 of

RULE 109. APPEALS IN

SPECIAL PROCEEDINGS
SECTION 1 RULE 109. ORDERS OR JUDGMENTS
FROM WHICH APPEALS MAY BE TAKEN
When an order orjudgment in special
proceedings may be subject of appeal
An interested person may appeal in special proceed ings
from an order or judgment rendered by a now Re gional Trial
Court where such order or judgment:
allows or disallows a will;
(2) determines who are the lawful
heirs of a deceased person, or the
distributive share of the estate to
which such person is entitled;
(3) 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

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 725
to a claim against it;
(4) settles the account of an executor,
administrator, trustee or guardian;
(5) constitutes, in proceedings relating to the settle
ment of the estate of a deceased person, or the
administration of a trustee or guardian, a final de-
722

detetmination in the lower coun of the rights of the party

appealing. "
The consequence is that the exception rather than the
rule in Batas Pambansa B/g. 129 and the Implementing
Rules and Guidelines should be followed and, therefore,
the record on appeal should be required (GonzalesOrense
v. CA, GR 80526, July 18, 1988, 163 SCRA 477).

Filing notice of appeal and

record on appeal required in
special proceedings
The elimination of the record on appeal under BP 129
made feasible the shortening of the period of appeal from the
original thirty (30) days to only fifteen (15) days from notice
of the judgment or final order. Section 3, Rule 41 of the
Rules of Court retains the original thirty (30) days as the
period for perfecting the appeal by record on appeal to take
into consideration the need for the trial court to approve the
record on appeal.
Within that 30-day period, a party aggrieved by a
judgment or final order issued in special proceedings
should perfect an appeal by filing both a notice of appeal
and a record on appeal in the trial court, serving a copy
of the notice of appeal and a record on appeal upon the
adverse party within the period (Sec. 2[a] and Section 3,
Rule 41, ROC).

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 SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
In addition, the appealing party shall pay within the
period for taking an appeal to the clerk of the court that
rendered the appealed judgment or final order the full
amount of the appellate court docket and other lawful fees
(Sec. 4, Rule 41, ROC).
A violation of these requirements for the timely
perfection of an appeal by record on appeal, (Sec. 13, Rule
41, and Sec. I(a), Rule 50, ROC) or the non-payment of the
720

termination 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
(6) 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.
Modes of appeal
Some of the orders mentioned in Section 1, Rule 109
of the Rules of Court may be considered as interlocutory
in character but the nature of special proceedings would
qualify them as appealable orders and are therefore
exceptions to the provisions of Section 1 of Rule 41.
Hence, these orders may be subject to the following
modes of appeal, viz:
(a) Ordinary appeal. The appeal to the CA in cases
decided by the RTC in the exercise of its
original jurisdiction shall be taken by filing a
notice of appeal with the court which rendered
the judgment or final order appealed from and
serving a copy thereof upon the adverse party in
accordance with Rule 41. No record on appeal

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 727
shall be required except in special proceedings
and other cases of multiple or separate appeals
where the law or the Rules so require. In such
cases, the record on appeal shall be filed and
served in like manner;
(b) Petition for review. The appeal to 'the CA in cases
decided by the RTC in the exercise of it s appellate
jurisdiction shall be by petition for review in
accordance with Rule 42; or

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION
109 723

full amount of the appellate court docket and

other lawful fees to the clerk of the trial court
(Sec. l[a] and (c), Rule 50 ROC) may be a
ground for the dismissal of the appeal
v. Miraso/, GR 164255, sept. 7, 2011, 657 SCRA
35).

sECTION 2 RULE 109. ADVANCE DISTRIBUTION IN

SPECIAL PROCEEDINGS

Advance distribution of the estate

Despite a pending controversy or appeal in probate
proceedings, the court may, in its discretion and upon
such terms as it may deem proper and just, permit that
such part of the estate not affected by the controversy
or appeal be distributed among the heirs or legatees
upon compliance with the conditions set forth in Rule
90 of the Rules of Court (Sec. 2, Rule 109, ROC).
Qualifications for the exercise of court
discretion to permit advance
distribution
Although it is within the discretion of the RTC
whether or not to permit the advance distribution of
the estate, its exercise of such discretion should be
qualified by the following:

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 (I) Only part of the estate that is not
affected by any pending controversy or
appeal may be the subject of advance
distribution (Section 2, Rule 109, ROC);
and
(2) The distributees must post a bond, fixed by the
court, conditioned for the payment of outstanding
obligations of the estate pursuant to the second
paragraph of Section 1, Rule 90 of the Rules of
Court (Quasha Ancheta Pena and No/asco Law
724

Office v. LCN Construction corp., GR 174873,

Aug, 26, 2008, 563 SCRA 426).

Factors to consider in determining

custody
(a) Any extrajudicial agreement which the parties
may have bound themselves to comply with
respecting the rights of the minor to maintain
direct contact with the non-custodial parent on
a regular basis, except when there is an existing
threat or danger of physical, mental, sexual or
emotional violence which endangers the safety
and best interests of the minor;
(b) The desire and ability of one parent to foster an
open and loving relationship between the
minor and the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the
person seeking custody or who has had any
filial relationship with the minor, including
anyone courting the parent;

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION
(e) The nature and frequency of contact with both
parents;
(f) Habitual use of alcohol, dangerous drugs or
regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional,
spiritual, psychological and educational
environment for the holistic development and
growth of the minor; and
(i) The preference of the minor over seven (7)
years of age and of sufficient discernment,
unless the
725

parent chosen is unfit (Soc, 14, AM No, 03-0404-

sC).

The court shall order a social worker to conduct

a case study of the minor and all the prospective
guardians and submit his report and recommendation
to the court for its guidance before the scheduled
hearing.
parent as legal guardian has no
power to alienate property of
children
A parent, acting merely as the legal (as
distinguished from judicial) administrator of the
property of his/her minor children, does not have
the power to dispose of, or alienate, the property of
said children without judicial approval

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 The powers and duties of the widow as legal
administrator of her minor children's property as
provided in Rule 84 of the Rules of Court entitled,
"Genera/ Powers and Duties of Executors and
Administrators" are only powers of possession and
management (Lindain v. CA, GR 95305, Aug. 20,
1992, 212 SCRA 725).
Compromise tantamount to an act
of strict dominion
As legal administrator of the property of his
minor children, a parent has no power to compromise
their claims for a compromise has always been
deemed equivalent to an alienation (transigere est
a/ienare), and is an act of strict ownership that goes
beyond mere admini-
stration (Ibid.).
Guardianship of a minor ward;
when terminated

The marriage or voluntary emancipation of a minor

Ward terminates the guardianship of the person of the
726

ward and shall enable the minor to administer his

property as though he were of age but he cannot
borrow money or alienate or encumber real property
without the consent of his father or mother, or
guardian.
He can sue and be sued in court only with the
assistance of his father, mother or guardian. The
guardian of any person may be discharged by the court
when it appears, upon the application of the ward or
otherwise, that the guardianship is no longer necessary
(Sec. 3, Rule 97, ROC).

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 SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION
109

721

In all cases where only

questions of law are raised or involved, the ap-
peal shall be to the SC by petition for review on
certiorari in accordance with Rule 45.

Thirty-day period of appeal

In special proceedings, the period of appeal is
thirty (30) days, a notice of appeal and a record on
appeal being required. The appeal period may be
interrupted by the filing of a motion for
reconsideration or motion for new trial.
Once the appeal period expires without an appeal,
motion for reconsideration or motion for new trial
being seasonably filed, the order becomes final
(Testate Estate of Biascan v. Biascan, GR 138731,
Dec. 11, 2000, 347 SCRA 621).

When record on appeal required

When a claim for attorney's fees is not a claim
against the estate of the decedent, the same could be
filed in an ordinary civil action, in which event an
appeal therefrom will not be regarded as involved in
a special proceeding requiring the submission of a
record on appeal.
Where it appears, however, that the claim was not filed
in a separate civil action but in the probate case itself
Whi
ch is a special proceeding, it should be deemed
governed by Rule 109 of the Rules of Court on appeals
from such proceedings. The appeal would come under
Subsecti0n (e) thereof as the order of the probate court

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granting the challenged attorney's fees "constitutes, in
proceedings relating to the settlement of the estate of a
deceased person, or the administration of a trustee or
guardian, a final

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