SPECIAL PROCEEDINGS FINAL EXAM
the property in question is in all respects liable to
RULE 91
Escheats
Section 1. When and by whom petition filed. — When a
person dies intestate, seized of real property in the
Philippines, leaving no heir or person by law entitled to the
same, the Solicitor General or his representative in behalf of
the Republic of the Philippines, may file a petition in the
Court of First Instance of the province where the deceased
last resided or in which he had estate, if he resided out of the
Philippines, setting forth the facts, and praying that the
estate of the deceased be declared escheated.
 Basis of escheats: Order of succession – State is the
last heir of the decedent
 3 instances of Escheat:
1. Sec 1 – a person died intestate leaving no heir
2. Reversion proceeding – property sold in
violation of constitution
3. Unclaimed balances act under the Banking
laws
 Escheat - a proceeding whereby the real and personal
property of a deceased person in the Philippines,
become the property of the state upon his death,
without leaving any will or legal heirs
 Nature of Escheat Proceedings:
1. commenced not by complaint but by petition
2. an incident or attribute of sovereignty and
rests on the principle of the ultimate ownership
by the state
3. substantial right of the state
4. not a claim based on charity, gratuity or
unearned benefit
 Requisites for the Filing of a Petition for Escheat
1. that a person died intestate
2. that he left no heirs or persons by law entitled
to the same
3. that the deceased left properties
 Once the court acquires jurisdiction to hear the
petition for escheat by virtue of the publication of the
petition for escheat, this jurisdiction cannot be
converted into one for the distribution of the
properties of the decedents.
 An escheat court does not have the power to order or
proceed with, the distribution of the estate of a
decedent in escheat proceedings and adjudicate the
properties to the oppositors.
Section 2. Order for hearing. — If the petition is sufficient in
form and substance, the court, by an order reciting the
purpose of the petition, shall fix a date and place for the
hearing thereof, which date shall be not more than six (6)
months after the entry of the order, and shall direct that a
copy of the order be published before the hearing at least
once a week for six (6) successive weeks in some newspaper
of general circulation published in the province, as the court
shall be deem best.
 When a petition for escheat does not state facts
which entitle the petitioner to the remedy prayed for,
an interested party should not be disallowed from
filing a motion to dismiss the petition
 The burden of proof rests on the state to prove that
escheat
 The right to escheat may be waived, either expressly
or impliedly.
Section 3. Hearing and 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 person died
intestate, seized of real or personal property in the
Philippines, leaving no heir or person entitled to the same,
and no sufficient cause being shown to the contrary, the
court shall adjudge that the estate of the estate of the
deceased in the Philippines, after the payment of just debts
and charges, shall escheat; and shall, pursuant to law, assign
the personal estate to the municipality or city where 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. Shall
estate shall be for the benefit of public schools, and public
charitable institutions and centers in said municipalities or
cities.
The court, at the instance of an interested party, or on its
own motion, may order the establishment of a permanent
trust, so that the only income from the property shall be
used.
 Burden of proof rests on the state to prove that the
property in question is in all respects liable to escheat
 The right to escheat may be waived, either expressly
or impliedly. Thus where the right to escheat claimed
by a municipality has existed long prior to the
registration proceedings instituted by the Roman
Catholic Archbishop of Manila and the same has not
been asserted in said proceedings, it is deemed to
have been completely waived
Section 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 the said time shall be forever barred.
Section 5. Other actions for escheat. — Until otherwise
provided by law, actions 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 in whole or in
part.
Republic Act No. 8369 October 28, 1997 violate a woman's personhood, integrity and freedom
movement; and
AN ACT ESTABLISHING FAMILY COURTS, GRANTING THEM 2) Children - which include the commission of all forms of
EXCLUSIVE ORIGINAL JURISDICTION OVER CHILD AND abuse, neglect, cruelty, exploitation, violence, and
FAMILY CASES, AMENDING BATAS PAMBANSA BILANG discrimination and all other conditions prejudicial to their
129,AS AMENDED, OTHERWISE KNOWN AS ACT OF 1980, development.
APPROPRIATING FUNDS THEREFOR AND FOR OTHER If an act constitutes a criminal offense, the accused or batterer
PURPOSES shall be subject to criminal proceedings and the corresponding
penalties.
Highlights of the Law: If any question involving any of the above matters should arise
as an incident in any case pending in the regular courts, said
Section 3. Establishment of Family Courts. - There shall be incident shall be determined in that court.
established a Family Court in every province and city in the
country. In case where the city is the capital of the province, Section 7. Special Provisional Remedies. - In cases of violence
the Family Court shall be established in the municipality which among immediate family members living in the same domicile
has the highest population. or household, the Family Court may issue a restraining order
against the accused of defendant upon verified application by
Section 5. Jurisdiction of family Courts. - The Family Courts the complainant or the victim for relief from abuse.
shall have exclusive original jurisdiction to hear and decide the
following cases: The court may order the temporary custody of children in all
a) Criminal cases where one or more of the accused is below civil actions for their custody. The court may also order support
eighteen (18) years of age but not less than nine (9) years of pendente lite, including deduction from the salary and use of
age but not less than nine (9) years of age or where one or conjugal home and other properties in all civil actions for
more of the victims is a minor at the time of the commission support.
of the offense: Provided, That if the minor is found guilty, the
court shall promulgate sentence and ascertain any civil
liability which the accused may have incurred.
The sentence, however, shall be suspended without need of
application pursuant to Presidential Decree No. 603,
otherwise known as the "Child and Youth Welfare Code";
b) Petitions for guardianship, custody of children, habeas
corpus in relation to the latter;
c) Petitions for adoption of children and the revocation
thereof;
d) Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to marital status and
property relations of husband and wife or those living together
under different status and agreements, and petitions for
dissolution of conjugal partnership of gains;
e) Petitions for support and/or acknowledgment;
f) Summary judicial proceedings brought under the provisions
of Executive Order No. 209, otherwise known as the "Family
Code of the Philippines";
g) Petitions for declaration of 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, Executive
Order No. 56, (Series of 1986), and other related laws;
h) Petitions for the constitution of the family home;
i) Cases against minors cognizable under the Dangerous Drugs
Act, as amended;
j) Violations of Republic Act No. 7610, otherwise known as
the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act," as amended by Republic
Act No. 7658; and
k) Cases of domestic violence against:
1) Women - which are acts of gender based violence that
results, or are likely to result in physical, sexual or
psychological harm or suffering to women; and other forms of
physical abuse such as battering or threats and coercion which
General Guardians and Guardianship
 Guardianship - power of protective authority given by
law and imposed on an individual who is free and in the
enjoyment of his rights, over one whose weakness on
account of his age or other infirmity renders him unable
to protect himself
 Relation subsisting between the guardian (the person
exercising such power) and the ward (the person under
guardianship)
 Guardian – natural person in whom the law has
entrusted the custody and control of the person or
estate or both of an infant, insane or other person
incapable of managing his own affairs
 Nature of Guardianship - designed to further the
ward's well-being not that of the guardian. It is
intended to preserve the ward's property
 Basis of Guardianship - Where minors are involved, the
State acts a parens patriae. It is the duty of protecting
the rights of persons or individuals who because of age
or incapacity are in an unfavorable position vis-à-vis
other parties
 Parens patriae is inherent in the supreme power of the
state, whether that power is lodged in a royal person or
in the legislature and has no affinity to those arbitrary
powers which are sometimes exerted by irresponsible
monarchs to the great detriment of the people
 Necessity of Guardianship Proceedings - Jurisdiction
to enter judgment against an adjudged physically and
mentally incompetent to manage her affair does not
exist where no guardian was appointed
 Purpose - to safeguard the right and interests of minors
and incompetent persons
 Kinds of Guardians:
A. According to Scope or Extent
1. Guardian of the person — 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.
2. Guardian of the property — Guardian of the
property is that appointed by the court to have
the management of the estate of a minor or
incompetent.
3. General Guardians — Those appointed by the
court to have the care and custody of the
person and of all the property of the ward.
B. According to Constitution
1. Legal — Those deemed as guardians without
the need of a court appointment.
2. Guardian ad litem — Those appointed by courts
of justice to prosecute or defend a minor,
insane or person declared to be incompetent,
in an action in court.
3. Judicial — Guardians who are appointed by the
court in pursuance to law, as guardian for
insane persons, prodigals, minor heirs or
deceased war veterans and other incompetent
persons
 Joint Parental Authority — The father and mother
shall exercise jointly just and reasonable parental
authority and responsibility over their legitimate or
adopted children.
 Judicial Guardianship - The situation contemplated is
one where the spouse is absent, or separated in fact
or has abandoned the other or consent is withheld or
cannot be obtained. Such rules do not apply to cases
where the non-consenting spouse is incapacitated or
incompetent to give consent. In such case, the proper
remedy is a judicial guardianship proceedings under
Rule 93 of the 1964 Revised Rules of Court.
 In case of disagreement, the father's decision shall
prevail unless there is a judicial order to the contrary.
 In case of the absence or death of either parent, the
present or surviving parent shall continue to exercise
parental authority over such children, unless in case
of the surviving parent's remarriage, the court, for
justifiable reasons, appoints another person as
guardian.
 In case of separation of his parents, no child under
five years of age shall be separated from his mother
unless the court finds compelling reasons to do so.
 Grandparents — shall be consulted on important
family questions but they shall not interfere in the
exercise of parental authority by the parents
 Absence or Death of Parents — Grandparents and in
their default, the oldest brother or sister who is at
least eighteen years of age, or the relative who has
actual custody of the child, shall exercise parental
authority in case of absence or death of both parents,
unless a guardian has been appointed in accordance
with the succeeding provision.
 Guardian — Appointed by court
 Dependent, Abandoned or Neglected Child — Shall be
under the parental authority of a suitable or
accredited person or institution that is caring for him
as provided for under the four proceeding articles,
after the child has been declared abandoned by either
the court or the DSWD
A.M. NO. 03-02-05-SC
[MAY 01, 2003]
RULE ON GUARDIANSHIP OF MINORS
Highlights:
Section 1. Applicability of the Rule. – This Rule shall apply to
petitions for guardianship over the person 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
appointment. In such case, this Rule shall be suppletory to the
provisions of the Family Code on guardianship.
Sec. 2. Who may petition for appointment of guardian. – On
grounds authorized by law, any relative or other person on
behalf of a minor, or the minor himself if fourteen years of age
or over, may petition the Family Court for the appointment of
a general guardian over the person or property, or both, of
such minor. The petition may also be filed by the Secretary of
Social Welfare and Development and by the Secretary of
Health in the case of an insane minor who needs to be
hospitalized.
Sec. 3. Where to file petition. – A petition for guardianship
over the person or property, or both, of a minor may be filed
in the Family Court of the province or city where the minor
actually resides. If he resides in a foreign country, the petition
shall be flied with the Family Court of the province or city
where his property or any part thereof is situated.
Sec. 4. Grounds of petition. - The grounds for the appointment
of a guardian over the person or property, or both, of a minor
are the following:
(a) death, continued absence, or incapacity of his parents;
(b) suspension, deprivation or termination of parental
authority; chan robles virtual law library
(c) remarriage of his surviving parent, if the latter Is found
unsuitable to exercise parental authority; or
(d) when the best interests of the minor so require.
Sec. 5. Qualifications of guardians. – In appointing a
guardian, the court shall consider the guardian’s:
(a) moral character;
(b) physical, mental and psychological condition;
(c) financial status;
(d) relationship of trust with the minor;
(e) availability to exercise the powers and duties of a guardian
for the full period of the guardianship;
(f) lack of conflict of interest with the minor; and
(g) ability to manage the property of the minor.
Sec. 6. Who may be appointed guardian of the person or
property, or both, of a minor. – In default of parents or a
court-appointed guardian, the court may appoint a guardian
of the person or property, or both, of a minor, observing as far
as practicable, the following order of preference:
(a) the surviving grandparent and In case several
grandparents survive, the court shall select any of them taking
Into account all relevant considerations;
(b) the oldest brother or sister of the minor over twenty-one
years of age, unless unfit or disqualified;
(c) the actual custodian of the minor over twenty-one years of
age, unless unfit or disqualified; and
(d) any other person, who in the sound discretion of the court,
would serve the best interests of the minor.
Sec. 7. Contents of petition. – A petition for the appointment
of a general guardian must allege the following:
(a) The jurisdictional facts;
(b) The name, age and residence of the prospective ward;
(c) The ground rendering the appointment necessary or
convenient;
(d) The death of the parents of the minor or the termination,
deprivation or suspension of their parental authority;
(e) The remarriage of the minor’s surviving parent;
(f) The names, ages, and residences of relatives within the 4th
civil degree of the minor, and of persons having him in their
care and custody;
(g) The probable value, character and location of the property
of the minor; and
(h) The name, age and residence of the person for whom
letters of guardianship are prayed.
The petition shall be verified and accompanied by a
certification against forum shopping. However, no defect in
the petition or verification shall render void the issuance of
letters of guardianship.
Sec. 12. When and how a guardian of the property for non-
resident minor is appointed; notice. – When the minor resides
outside the Philippines but has property in the Philippines, any
relative or friend of such minor, or anyone interested in his
property, in expectancy or otherwise, may petition the Family
Court for the appointment of a guardian over the property.
Sec. 14. Bond of guardian; amount; conditions. - Before he
enters upon the execution of his trust, or letters of
guardianship issue, an appointed guardian may be required to
post a bond in such sum as the court shall determine and
conditioned as follows:
(a) To make and return to the court, within three months
after the issuance of his letters of guardianship, a true and
complete Inventory of all the property, real and personal, of
his ward which shall come to his possession or knowledge or
to the possession or knowledge of any other person in his
behalf;
(b) To faithfully execute the duties of his trust, to manage
and dispose of the property according to this rule for the best
interests of the ward, and to provide for his proper care,
custody and education;
(c) To render a true and Just account of all the property of
the ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the
same, at the time designated by this rule and such other times
as the court directs; and at the expiration of his trust, to settle
his accounts with the court and deliver and pay over all the
property, effects, and monies remaining in his hands, or due
from him on such settlement, to the person lawfully entitled
thereto; and
(d) To perform all orders of the court and such other duties (e) To submit to the court a verified inventory of the property
as may be required by law. of his ward within three months after his appointment, and
annually thereafter, the rendition of which may be required
Sec. 15. Where to file the bond; action thereon. – The bond upon the application of an interested person;
posted by a guardian shall be filed in the Family Court and, In
case of breach of any of its conditions, the guardian may be (f) To report to the court any property of the ward not included
prosecuted in the same proceeding for the benefit of the ward in the inventory which is discovered, or succeeded to, or
or of any other person legally interested in the property. acquired by the ward within three months after such
discovery, succession, or acquisition; and
Whenever necessary, the court may require the guardian to
post a new bond and may discharge from further liability the (g) To render to the court for its approval an accounting of the
sureties on the old bond after due notice to interested persons, property one year from his appointment, and every year
if no injury may result therefrom to those interested in the thereafter or as often as may be required.
property.
Sec. 24. Grounds for removal or resignation of guardian. –
Sec. 16. Bond of parents as guardians of property of minor. – When a guardian becomes insane or otherwise incapable of
If the market value of the property or the annual Income of the discharging his trust or is found thereafter to be unsuitable, or
child exceeds P50,000.00, the parent concerned shall furnish a has wasted or mismanaged the property of the ward, or has
bond In such amount as the court may determine, but in no failed to render an account or make a return for thirty days
case less than ten per centum of the value of such property or after it is due, the court may, upon reasonable notice to the
annual income, to guarantee the performance of the guardian, remove him as such and require him to surrender
obligations prescribed for general guardians. the property of the ward to the person found to be lawfully
entitled thereto.
A verified petition for approval of the bond shall be filed in the
Family Court of the place where the child resides or, if the child The court may allow the guardian to resign for justifiable
resides in a foreign country, in the Family Court of the place causes.
where the property or any part thereof is situated.
The petition shall be docketed as a summary special Upon the removal or resignation of the guardian, the court
proceeding In which all incidents and issues regarding the shall appoint a new one.
performance of the obligations of a general guardian shall be
heard and resolved. No motion for removal or resignation shall be granted unless
the guardian has submitted the proper accounting of the
Sec. 17. General duties of guardian. – A guardian shall have property of the ward and the court has approved the same.
the care and custody of the person of his ward and the
management of his property, or only the management of his Sec. 25. Ground for termination of guardianship. – The court
property. The guardian of the property of a nonresident minor motu proprio or upon verified motion of any person allowed to
shall have the management of all his property within the file a petition for guardianship may terminate the
Philippines. guardianship on the ground that the ward has come of age or
A guardian shall perform the following duties: has died. The guardian shall notify the court of such fact within
(a) To pay the just debts of the ward out of the personal ten days of its occurrence.
property and the income of the real property of the ward, If
the same is sufficient; otherwise, out of the real property of
the ward upon obtaining an order for its sale or encumbrance;
(b) To settle all accounts of his ward, and demand, sue for,
receive all debts due him, or may, with the approval of the
court, compound for the same and give discharges to the
debtor on receiving a fair and just dividend of the property and
effects; and to appear for and represent the ward in all actions
and special proceedings, unless another person is appointed
for that purpose;
(c) To manage the property of the ward frugally and without
waste, and apply the income and profits thereon, insofar as
may be necessary, to the comfortable and suitable
maintenance of the ward; and if such income and profits be
insufficient for that purpose, to sell or encumber the real or
personal property, upon being authorized by the court to do
so;
(d) To consent to a partition of real or personal property
owned by the ward jointly or in common with others upon
authority granted by the court after hearing, notice to
relatives of the ward, and a careful investigation as to the
necessity and propriety of the proposed action;
RULE 92
Venue
Section 1. Where to institute proceedings. — Guardianship of
a person or estate of a minor or incompetent may be instituted
in the Court of First Instance of the province, or in the justice
of the peace court of the municipality, or in the municipal court
chartered city where the minor or incompetent persons
resides, and if he resides in a foreign country, in the Court of
First Instance of the province wherein his property or the party
thereof is situated; provided, however, that where the value of
the property of such minor or incompetent exceeds that
jurisdiction of the justice of the peace or municipal court, the
proceedings shall be instituted in the Court of First Instance.
In the City of Manila the proceedings shall be instituted in the
Juvenile and Domestic Relations Court.
Section 2. Meaning of word "incompetent." — Under this
rule, the word "incompetent" includes persons suffering the
penalty of civil interdiction or who are hospitalized lepers,
prodigals, deaf and dumb who are unable to read and write,
those who are of unsound mind, even though they have lucid
intervals, and persons not being of unsound mind, but by
reason of age, disease, weak mind, and other similar causes,
cannot, without outside aid, take care of themselves and
manage their property, becoming thereby an easy prey for
deceit and exploitation.
 Civil interdiction - deprives the offender during the
time of his sentence of his rights of parental authority,
or guardianship, either as to the person or property of
any ward, of marital authority, or the right to manage
his property and of any right to dispose of such
property by any act or any conveyance inter vivos
 Prodigal - person who though of full age, is incapable
of managing his affairs and the obligations which
attend them, in consequence of his bad conduct and
for whom a curator is therefor appointed;
spendthrift; his acts of prodigality must show a
morbid mind and a disposition to spend or waste the
estate so as to expose his family to want or to deprive
his forced heirs of their inheritance
RULE 93
Appointment of Guardians
Section 1. Who may petition for appointment of guardian for
resident. — Any relative, friend, or other person on behalf of
a resident minor or incompetent who has no parent or lawful
guardian, or the minor himself if fourteen years of age or over,
may petition the court having jurisdiction for the appointment
of a general guardian for the person or estate, or both, of such
minor or incompetent. An officer of the Federal Administration
of the United States in the Philippines may also file a petition
in favor of a ward thereof, and the Director of Health, in favor
of an insane person who should be hospitalized, or in favor of
an isolated leper.
Section 2. Contents of petition. — A petition for the
appointment of a general guardian must show, so far as
known to the petitioner:
(a) The jurisdiction facts;
(b) The minority or incompetency rendering the appointment
necessary or convenient;
(c) The names, ages, and residence of the relatives of the
minor or incompetent, and of the person having him in their
care;
(d) The probable value and character of his estate;
(e) The name of the person for whom letters of guardianship.
The petition shall be verified; but no defect in the petition or
verification shall render void the issuance of letters of
guardianship.
 Facts which must appear in the application: 1)
minority or incompetency of the person for whom
guardianship is sought; 2) his domicile
 The correction of a minor's name in whose behalf a
petition for guardianship was filed may be made by
way of a motion
Section 3. Court to set time for hearing. Notice thereof. —
When a petition for the appointment of a general guardian is
filed, the court shall fix a time and place for hearing the same,
and shall cause reasonable notice thereof to be given to the
persons mentioned in the petition residing in the province,
including the minor if above 14 years of age or the
incompetent himself, and may direct other general or special
notice thereof to be given.
 Failure to notify an alleged insane person, where such
notice is required, it has sometimes been held that
the appointment of a guardian without notice to the
former is a jurisdictional defect which renders the
appointment void and subject to collateral attack.
Section 4. Opposition to petition. — Any interested person
may, by filing a written opposition, contest the petition on the
ground of majority of the alleged minor, competency of the
alleged incompetent, or the insuitability of the person for
whom letters are prayed, and may pray that the petition be
dismissed, or that letters of guardianship issue to himself, or
to any suitable person named in the opposition.
 Need not be verified
 If the interested person is a creditor and mortgagee
of the estate of the minor, he cannot be appointed
guardian of the person and property of the latter.
 It should be first addressed to and resolved by the
lower court and not for the first time on appeal
Section 5. Hearing and order for letters to issue. — At the
hearing of the petition the alleged in competent must be
present if able to attend, and it must be shown that the
required notice has been given. Thereupon the courts shall
hear the evidence of the parties in support of their respective
allegations, and, if the person in question is a minor, or
incompetent it shall be appoint a suitable guardian of his
person or estate, or both, with the powers and duties
hereinafter specified.
 Considerations in the Appointment of a Guardian
1. financial situation
2. physical condition
3. sound judgment
4. prudence
5. trustworthiness,
6. morals
7. character
8. conduct
 9. present and past history of a prospective
appointee
10. probability of his being able to exercise the
powers and duties of a guardian for the full
period during which guardianship will be
necessary.
 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.
 The execution of the final judgment or order shall
issue as a matter of right only upon the expiration of
the period to appeal therefrom if no appeal has been
duly perfected
Section 6. When and how guardian for non-resident
appointed. Notice. — When a person liable to be put under
guardianship resides without the Philippines but the estate
therein, any relative or friend of such person, or any one
interested in his estate, in expectancy or otherwise, may
petition a court having jurisdiction for the appointment of a
guardian for the estate, and if, after notice given to such
person and in such manner as the court deems proper, by
publication or otherwise, and hearing, the court is satisfied
that such non-resident is a minor or incompetent rendering a
guardian necessary or convenient, it may appoint a guardian
for such estate.
 Ancillary guardianship - guardianship in a state of the
than that in which guardianship is originally granted
and which is subservient and subsidiary to the latter
 A court of a state in which an incompetent has
property has jurisdiction to appoint a guardian to his
estate
 On the other hand, it is generally considered that a
proceeding to inquire into the insanity of alleged
incompetent for the purpose of appointing a guardian
of his person is in personam and some courts broadly
state that the personal service, distinct from service
by publication, is essential to give the court
jurisdiction
SEC. 7. Parents as Guardians - When the property of the child
under parental authority is worth two thousand pesos or less,
the father or the mother, without the necessity of court
appointment, shall be his legal guardian. When the property
of the child is worth more than two thousand pesos, the father
or the mother shall be considered guardian of the child's
property, with the duties and obligations of guardians under
these Rules, and shall file the petition required by Section 2
hereof. For good reasons, the court may, however, appoint
another suitable persons.
 A father or mother, as the natural guardian of the
minor under parental authority, does not have the
power to dispose or encumber the property of the
latter, such power is granted by law only to a judicial
guardian of the ward's property and even then only
with courts prior approval secured in accordance with
the proceedings set forth by the Rules of Court
 The disposal of minor's property by the mother as
natural guardian is null and void
 It is, therefore, not binding and enforceable against
any subsequent legal owners of said property who
acquired the same for value, even if the latter had
knowledge or notice of such transaction prior to their
acquisition of said property.
 Vendees prejudiced by the illegal transactions of a
natural guardian involving the property of his minor
child have no cause of action against subsequent legal
owners of said property. Their remedy lies only
against the natural guardian, not however, to recover
ownership and possession of the properties sold but
only to recover damages
RULE 94
Bonds of Guardians
Section 1. Bond to be given before issuance of letters.
Amount. Condition. — Before a guardian appointed enters
upon the execution of his trust, or letters of guardianship
issue, he shall give a bond, in such sum as the court directs,
conditioned as follows:
(a) To make and return to the court, within three (3) months,
a true and complete inventory of all the estate, real and
personal, of his ward which shall come to his possession or
knowledge of any other person for him;
(b) To faithfully execute the duties of his trust, to manage and
dispose of the estate according to these rules for the best
interests of the ward, and to provide for the proper care,
custody, and education of the ward;
(c) To render a true and just account of all the estate of the
ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the
same, at the time designated by these rules and such other
times as the courts directs, and at the expiration of his trust to
settle his accounts with the court and deliver and pay over all
the estate, effects, and moneys remaining in his hands, or due
from him on such settlement, to the person lawfully entitled
thereto;
(d) To perform all orders of the court by him to be performed.
 Purpose: protection of the property of the minor to
the end that the minor may be assured of an honest
administration of his funds during his minority; serves
as security to those interested in the property
settlement of the estate, and the parties interested
acquire a vested interest in the bond which cannot be
divested without their consent, except in the manner
prescribed by law
 A guardian's bond takes effect as of the day of its date
and of his appointment, notwithstanding the bond
may have been filed later
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 any other
person legally interested in the estate.
RULE 95
Selling and Encumbering Property of Ward
Section 1. Petition of guardian for leave to sell or encumber
estate. — When the income of the estate under guardianship
is insufficient to maintain the ward and his family, or to
maintain and educate the ward when a minor, or when it
appears that it is for the benefit of the ward that his real estate
or some part thereof be sold, or mortgaged or otherwise
encumbered, and the proceeds thereof put out at interest, or
invested in some productive security, or in the improvement or
security or other real estate of the ward, the guardian may
present a verified petition to the court by which he was
appointed setting forth such facts, and praying that an order
issue authorizing the sale or encumbrance.
Section 2. Order to show cause thereupon. — If it seems
probable that such sale or encumbrance is necessary, or would
be beneficial to the ward, the court shall make an order
directing the next of kin of the ward, and all persons interested
in the estate, to appear at a reasonable time and place therein
specified to show cause why the prayer of the petition should
not be granted.
 "Next of kin" is denned 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
 Notice to the next of kin mandated under the
provision is a jurisdictional requirement
 If the notice omits to state the time or states a time
subsequent to that at which the application was acted
on, the court acquires no jurisdiction to order the
sale, and the sale is void
RULE 96
General Powers and Duties of Guardians
Section 1. To what guardianship shall extend. — A guardian
appointed shall have the care and custody of the person of his
ward, and the management of his estate, or the management
of the estate only, as the case may be. The guardian of the
estate of a non-resident shall have the management of all the
estate of the ward within the Philippines, and no court other
than that in which such guardian was appointed shall have
jurisdiction over the guardianship.
Section 2. Guardian to pay debts of ward. — Every guardian
must pay the ward's just debts out of his personal estate and
the income of his real estate, if sufficient; if not, then out of his
real estate upon obtaining an order for the sale or
encumbrance thereof.
Section 3. Guardian to settle accounts, collect debts, and
appear in actions for ward. — A guardian must settle all
accounts of his ward, and demand, sue for, and receive all
debts due him, or may, with the approval of the court,
compound for the same and give discharges to the debtor, on
receiving a fair and just dividend of the estate and effects; and
he shall appear for and represent his ward in all actions and
special proceedings, unless another person be appointed for
that purpose.
 The guardian's right to the custody and management
of the ward's property implies the power to collect
and receive the moneys due to the ward and hence to
receipt for the same, and if secured by a mortgage, to
discharge the mortgage whether the money has
become due or not
 Failure of the guardian to collect the personal estate
of the ward due to negligence will make the guardian
liable for the amount of the assets lost thereby, which
might have been collected had he been diligent. But if
he acts in good faith and in the exercise of reasonable
prudence and diligence, he is not liable
 A guardian has authority to compromise a claim
existing in favor of the ward, provided he acts in good
faith, but prior approval of the court for a
compromise by the guardian should be first secured.
Without such an approval, the action by the guardian
remains open for challenge
 A guardian ad litem has no authority to act or bind a
minor in any transaction with regard to his estate, but
he can however, do so with the approval of the court,
such as the amicable settlement of a case affecting
the property of the minor, duly approved by the court
Section 4. Estate to be managed frugally, and proceeds
applied to maintenance of ward. — A guardian must manage
the estate of his ward frugally and without the waste, and
apply the income and profits thereof, so far as may be
necessary, to the comfortable and suitable maintenance of the
ward and his family, if there be any; and if such income and
profits be insufficient for that purpose, the guardian may sell
or encumber the real estate, upon being authorized by order
so to do, and apply to such of the proceeds as may be
necessary to such maintenance.
 The guardian must be faithful, vigilant and competent
in the management of the estate of the ward
 However, he is not an insurer or required to exercise
a higher degree of prudence and diligence than that
stated and if his conduct measures up to this
standard, he is not responsible for losses which`have
occurred through his errors of judgment.
Section 5. Guardian may be authorized to join in partition
proceedings after hearing
 Requisites:
1. permission or authorization by the court be
granted only after hearing the petition for the
grant of such authority;
2. the relatives of the ward be duly notified of
such petition for partition; and
3. such authorization be granted only after a
careful investigation as to the necessity and
propriety of the proposed action.
Section 6. Proceedings when the person suspected of
embezzling or concealing property of ward. — Upon
complaint of the guardian or ward, or of any person having
actual or prospective interest in the estate of the ward as
creditor, heir, or otherwise, that anyone is suspected of having
embezzled, concealed, or conveyed away any money, goods,
or interest, or a written instrument, belonging to the ward or
his estate, the court may cite the suspected person to appear
for examination touching such money, goods, interest, or
instrument, and make such orders as will secure the estate
against such embezzlement, concealment or conveyance
.
Section 7. Inventories and accounts of guardians, and
appraisement of estates. — A guardian must render to the
court an inventory of the estate of his ward within three (3)
months after his appointment, and annually after such
appointment an inventory and account, the rendition of any of
which may be compelled upon the application of an interested
person. Such inventories and accounts shall be sworn to by the
guardian. All the estate of the ward described in the first
inventory shall be appraised. In the appraisement the court
may request the assistance of one or more of the inheritance
tax appraisers. And whenever any property of the ward not
included in an inventory already rendered is discovered, or
suceeded 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.

RULE 97
Termination of Guardianship

Section 1. Petition that competency of ward be adjudged,

and proceedings thereupon. — A person who has been
declared incompetent for any reason, or his guardian, relative,
or friend, may petition the court to have his present
competency judicially determined. The petition shall be
verified by oath, and shall state that such person is then
competent. Upon receiving the petition, the court shall fix a
time for hearing the questions raised thereby, and cause
reasonable notice thereof to be given to the guardian of the
person so declared incompetent, and to the ward. On the trial,
the guardian or relatives of the ward, and, in the discretion of
the court, any other person, may contest the right to the relief
demanded, and witnesses may be called and examined by the
parties or by the court on its own motion. If it be found that
the person is no longer incompetent, his competency shall be
adjudged and the guardianship shall cease.

Section 2. When the guardian removed or allowed to resign.

New appointment. — When a guardian becomes insane or
otherwise incapable of discharging his trust or unsuitable
therefor, or has wasted or mismanaged the estate, or failed
for thirty (30) days after it is due to render an account or make
a return, the court may, upon reasonable notice to the
guardian, remove him, and compel him to surrender the estate
of the ward to the person found to be lawfully entitled thereto.
A guardian may resign when it appears proper to allow the
same; and upon his resignation or removal the court may
appoint another in his place.

Section 3. Other termination of guardianship. — The

marriage or voluntary emancipation of a minor ward
terminates the guardianship of the person of the ward, and
shall enable the minor to administer his property as though he
were of age, but he cannot borrow the money or alienate or
encumber real property without the consent of his father or
mother, or guardian. He can sue and be sued in court only with
the assistance of his father, mother or guardian. The guardian
of any person may be discharged by the court when it appears,
upon the application of the ward or otherwise, that the
guardianship is no longer necessary.
RULES ON ADOPTION
 Nature and Concept of Adoption - Adoption is a
juridical act, a proceeding in rem which creates
between the two persons a relationship similar to
that which results from legitimate paternity and
filiation. Only an adoption made through the court, or
in pursuance with the procedure laid down under
Rule 99 of the Rules of Court is valid in this
jurisdiction.
 The fact of adoption is never presumed, but must be
affirmatively proved by the person claiming its
existence
 Nature of Adoption Proceedings - Adoption is
properly not an adversarial proceeding. In adoption
proceedings, there is no particular defendant to speak
of since the proceeding involves the status of a person
it being an action in rem
 The privilege to adopt is itself not naturally innate or
fundamental but rather a right merely created by
statute. It is a privilege that is governed by the state's
determination on what it may deem to be for the best
welfare of the child.
 Adoption is also a proceeding in rem which no court
may entertain unless it has jurisdiction not only over
the subject matter of the case and over the parties
but also over the res, which is the personal status of
the parties.
 Jurisdiction over the status of a natural person is
determined by the latter's nationality
 Personal status, in general, is determined by and/or
subject to the jurisdiction of the domiciliary law. This
perhaps, is the reason why our Civil Code (now Family
Code) does not permit adoption by aliens (as a
general rule)
 Purpose of Adoption: Adoption used to be for the
benefit of the adoptor. It was intended to afford
persons who have no child of their own the
consolation of having one, by creating through legal
fiction the relation of paternity and filiation where
none exists by blood relationship.
 Another purpose: Promotion of the welfare of the
child and the enhancement of his opportunities for a
useful and happy life, and every intendment is
sustained to promote that objective
 Construction of Adoption Statutes - Adoption
statutes, being humane and salutary, hold the
interest and welfare of the child to be adopted of
paramount consideration. Every reasonable
intendment should be sustained to promote and fulfill
these noble and compassionate objectives of the law
 The rule of “Dura lex sed lex" should not be applied
 The law is not and should not be made, as instrument
to impede the achievement of a salutary humane
policy
 The technical rules of pleading should not be
stringently applied
 Registration of a child in his or her birth certificate as
the child of the supposed parents is not a valid
adoption, does not confer upon the child the status of
an adopted child and the legal rights of such child, and
even amounts to a simulation of the child's birth or
falsification of his or her birth certificate, which is a
public document.
 The absence of proof of such order of adoption by the
court cannot be substituted by parole evidence, even
the evidence of declaration of the deceased nor does
the fact that the deceased spouses fed, clothed,
educated, recognized and referred to one like
petitioner as an adopted child, necessarily establish
adoption of the child
A. DOMESTIC ADOPTION
Highlights:
Section 1. Applicability of the Rule. – This Rule covers the
domestic adoption of Filipino children.
Section 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 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).
(c) “Voluntarily committed child” is one whose parents
knowingly and willingly relinquish parental authority over him
in favor of the Department.
(d) “Involuntarily committed child” is one whose parents,
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.
(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.
(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.
(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 including, but not limited to, receiving
applications for adoption, evaluating the prospective adoptive
parents and preparing the adoption home study report.
(l) “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 Development.
(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
Department 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 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 of his biological family needed in
determining the most appropriate placement for him.
(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 provide 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.
(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
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.
(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.
Section 4. Who may adopt. – The following may adopt:
(1) Any Filipino citizen of legal age, in possession of full civil
capacity and legal rights, of good moral character, has not
been convicted of any crime involving moral turpitude; who is
emotionally and psychologically capable of caring for children,
at least sixteen (16) years older than the adoptee, and who is
in a position to support and care for his children in keeping
with the means of the family. The requirement of a 16-year
difference between the age of the adopter and adoptee may
be waived when the adopter is the biological parent of the
adoptee or is the spouse of the 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)
continuous years prior to the filing of the petition for adoption
and maintains such residence until the adoption decree is
entered, 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 that his
government 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) degree
of consanguinity or affinity of the Filipino spouse.
(3) The guardian with respect to the ward after the
termination of the guardianship and clearance of his financial
accountabilities.
Husband and wife shall jointly adopt, except in the following
cases:
(i) if one spouse seeks to adopt the legitimate child of 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 other.
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.
Section 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 P.D. No. 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 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 these rules.
Section 6. Venue. – The petition for adoption shall be filed
with the Family Court of the province or city where the
prospective adoptive parents reside.
Section 8. Rectification of Simulated Birth. – In case the
petition also seeks rectification of a simulated of birth, it shall
allege that:
(a) Petitioner is applying for rectification of a simulated birth;
(b) 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;
(c) The petitioner made the simulation of birth for the best
interests of the adoptee; and
(d) The adoptee has been consistently considered and treated
by petitioner as his own child.
Section 9. Adoption of 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:
(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) That the Department, child-placement or child-caring
agency is authorized to give its consent.
Section 10. Change of name. – In case the petition also prays
for change of name, the title or caption must contain:
(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.
Section 12. Order of Hearing. – If the petition and
attachments are sufficient in form and substance, the court
shall issue an order which shall contain the following:
(1) 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 complete name which the adoptee will use if the
petition is granted;
(4) the date and place of hearing which shall be set within six
(6) months from the date of the issuance 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 circulation in the province 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
reports 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.
If a change in the name of the adoptee is prayed for in the
petition, notice to the Solicitor General shall be mandatory.
Section 13. Child and Home Study Reports. – 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.
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.
Section 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 testify before the presiding judge
of the court on the date set for hearing.
The court shall 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; ensure that all measures to strengthen the
family have been exhausted; and ascertain if any prolonged
stay of the child in his own home will be inimical to his welfare
and interest.
Section 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.
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
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.
If the child is below seven (7) years of age and is placed with
the prospective adopter through a pre-adoption 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 entitled 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.
Section 16. Decree of Adoption. – If 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 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
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 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.
If the adoptee is a foundling, the court shall order the Civil
Registrar where the foundling was registered, to annotate 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.
Section 19. Rescission of Adoption of the Adoptee. – The
petition shall be verified and filed by the adoptee who is over
eighteen (18) years of age, or with the assistance of the
Department, if he is a minor, or if he is over eighteen (18) years
of age but is incapacitated, by his guardian or counsel.
The adoption may be rescinded based on any of the following
grounds committed by the adopter:
1) repeated physical and verbal maltreatment by the adopter
despite having undergone counseling;
2) attempt 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.
Section 20. Venue. – The petition shall be filed with the Family
Court of the city or province where the adoptee resides.
Section 21. Time within which to file petition. – The adoptee,
if incapacitated, must file the petition for rescission 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.`
Section 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.
Republic Act 8043
The Inter-Country Adoption Act of 1995
"AN ACT ESTABLISHING THE RULES TO GOVERN INTER-
COUNTRY ADOPTION OF FILIPINO CHILDREN, AND FOR
OTHER PURPOSES"
Highlights:
Section 1. Short Title. — This Act shall be known as the "Inter-
Country Adoption Act of 1995."
Sec. 3. Definition of Terms. — As used in this Act. the term:
(a) 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 undertaken, and the decree of
adoption is issued outside the Philippines.
(b) Child means a person below fifteen (15) years of age unless
sooner emancipated by law.
(c) Department refers to the Department of Social Welfare
and Development of the Republic of the Philippines.
(d) Secretary refers to the Secretary of the Department of
Social Welfare and Development.
(e) Authorized and accredited agency refers to the State
welfare agency or a licensed adoption agency in the country
of the adopting parents which provide comprehensive social
services and which is duly recognized by the Department.
(f) Legally-free child means a child who has been voluntarily
or involuntarily committed to the Department, in accordance
with the Child and Youth Welfare Code.
(g) Matching refers to the judicious pairing of the adoptive
child and the applicant to promote a mutually satisfying
parent-child relationship.
(h) Board refers to the Inter-country Adoption Board.
ARTICLE II
THE INTER-COUNTRY ADOPTION BOARD
Sec. 4. The Inter-Country Adoption Board. — There is hereby
created the Inter-Country Adoption Board, hereinafter
referred to as the Board to act as the central authority in
matters relating to inter-country adoption. It shall act as the
policy-making body for purposes of carrying out the provisions
of this Act, in consultation and coordination with the
Department, the different child-care and placement agencies,
adoptive agencies, as well as non-governmental organizations
engaged in child-care and placement activities. As such, it
shall:
(a) Protect the Filipino child from abuse, exploitation,
trafficking and/or sale or any other practice in connection with
adoption which is harmful, detrimental, or prejudicial to the
child;
(b) Collect, maintain, and preserve confidential information
about the child and the adoptive parents;
(c) Monitor, follow up, and facilitate completion of adoption
of the child through authorized and accredited agency;
(d) Prevent improper financial or other gain in connection with
an adoption and deter improper practices contrary to this Act;
(e) Promote the development of adoption services including
post-legal adoption;
(f) License and accredit child-caring/placement agencies and
collaborate with them in the placement of Filipino children;
(g) Accredit and authorize foreign adoption agency in the
placement of Filipino children in their own country; and
(h) Cancel the license to operate and blacklist the child-caring
and placement agency or adoptive agency involved from the
accreditation list of the Board upon a finding of violation of
any provision under this Act.
Sec. 6. Powers and Functions of the Board. — The Board shall
have the following powers and functions:
(a) to prescribe rules and regulations as it may deem
reasonably necessary to carry out the provisions of this Act,
after consultation and upon favorable recommendation of the
different agencies concerned with the child-caring, placement,
and adoption;
(b) to set the guidelines for the convening of an Inter-country
Adoption Placement Committee which shall be under the
direct supervision of the Board;
(c) to set the guidelines for the manner by which
selection/matching of prospective adoptive parents and
adoptive child can be made;
(d) to determine a reasonable schedule of fees and charges to
be exacted in connection with the application for adoption;
(e) to determine the form and contents of the application for
inter-country adoption;
(g) to institute systems and procedures to prevent improper
financial gain in connection with adoption and deter improper
practices which are contrary to this Act;
(h) to promote the development of adoption services,
including post-legal adoption services,
(i) to accredit and authorize foreign private adoption agencies
which have demonstrated professionalism, competence and
have consistently pursued non-profit objectives to engage in
the placement of Filipino children in their own country:
Provided, That such foreign private agencies are duly
authorized and accredited by their own government to
conduct inter-country adoption: Provided, however, That the
total number of authorized and accredited foreign private
adoption agencies shall not exceed one hundred (100) a year;
(j) to take appropriate measures to ensure confidentiality of
the records of the child, the natural parents and the adoptive
parents at all times;
(k) to prepare, review or modify, and thereafter, recommend
to the Department of Foreign Affairs, Memoranda of
Agreement respecting inter-country adoption consistent with
the implementation of this Act and its stated goals, entered
into, between and among foreign governments, international
organizations and recognized international non-governmental
organizations;
(l) to assist other concerned agencies and the courts in the
implementation of this Act, particularly as regards
coordination with foreign persons, agencies and other entities
involved in the process of adoption and the physical transfer
of the child; and
(m) to perform such other functions on matters relating to
inter-country adoption as may be determined by the
President.
ARTICLE III
PROCEDURE
Sec. 7. Inter-Country Adoption as the Last Resort. — The
Board shall ensure that all possibilities for adoption of the child
under the Family Code 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 hundred (600) a year for
the first five (5) years.
Sec. 8. Who May be Adopted. — Only a legally free child may
be the subject of inter-country adoption. In order that such
child may be considered for placement, the following
documents must be submitted to the Board:
(a)Child study;
(b)Birth certificate/foundling certificate;
(c)Deed of voluntary commitment/decree of
abandonment/death certificate of parents;
(d)Medical evaluation /history;
(e)Psychological evaluation, as necessary; and
(f)Recent photo of the child.
Sec. 9. 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:
(a) 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:
(b) if married, his/her spouse must jointly file for the
adoption;
(c) 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;
(d) has not been convicted of a crime involving moral
turpitude;
(e) is eligible to adopt under his/her national law;
(f) 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 to be adopted;
(g) 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;
(h) 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
(i) possesses all the qualifications and none of the
disqualifications provided herein and in other applicable
Philippine laws.
Sec. 10. Where to File Application. — An application to adopt
a Filipino child shall be filed either with the Philippine Regional
Trial Court having jurisdiction over the child, or with the Board,
through an intermediate agency, whether governmental or an
authorized and accredited agency, in the country of the
prospective adoptive parents, which application shall be in
accordance with the requirements as set forth in the
implementing rules and regulations to be promulgated by the
Board.
The application shall be supported by documents written and
officially translated in English.
Sec. 11. Family Selection/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 Board, 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. 12. Pre-adoptive Placement Costs. — The applicant(s)
shall bear the following costs incidental to the placement of
the child;
(a) 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
(b) The cost of passport, visa, medical examination and
psychological evaluation required, and other related
expenses.
ARTICLE IV
PENALTIES
Sec. 16. Penalties. — (a) Any person who shall knowingly
participate in the conduct or carrying out of an illegal
adoption, in violation of the provisions of this Act, shall be
punished with a penalty of imprisonment ranging from six (6)
years and one (1) day to twelve (12) years and/or a fine of not
less than Fifty thousand pesos (P50,000), but not more than
Two hundred thousand pesos (P200.000), at the discretion of
the court. For purposes of this Act, an adoption is illegal if it is
effected in any manner contrary to the provisions of this Act
or established State policies, its implementing rules and
regulations, executive agreements, and other laws pertaining
to adoption. Illegality may be presumed from the following
acts:
(1)consent for an adoption was acquired through, or attended
by coercion, fraud, improper material inducement;
(2)there is no authority from the Board to effect adoption;
(3)the procedures and safeguards placed under the law for
adoption were not complied with; and
(4)the child to be adopted is subjected to, or exposed to
danger, abuse and exploitation.
(b)Any person who shall violate established regulations
relating to the confidentiality and integrity of records,
documents and communications of adoption applications,
cases and processes shall suffer the penalty of imprisonment
ranging from one (1) year and one (1) day to two (2) years,
and/or a fine of not less than Five thousand pesos (P5,000),
but not more than Ten thousand pesos (P10,000), at the
discretion of the court.
A penalty lower by two (2) degrees than that prescribed for
the consummated felony under this Article shall be imposed
upon the principals of the attempt to commit any of the acts
herein enumerated.
Acts punishable under this Article, when committed by a
syndicate or where it involves two or more children shall be
considered as an offense constituting child trafficking and
shall merit the penalty of reclusion perpetua.
Acts punishable under this Article are deemed committed by a
syndicate if carried out by a group of three (3) or more persons
conspiring and/or confederating with one another in carrying
out any of the unlawful acts defined under this
Article.Penalties as are herein provided shall be in addition to
any other penalties which may be imposed for the same acts
punishable under other laws, ordinances, executive orders,
and proclamations.
Sec. 17. Public Officers as Offenders. — Any government
official, employee or functionary who shall be found guilty of
violating any of the provisions of this Act, or who shall conspire
with private individuals shall, in addition to the above-
prescribed penalties, be penalized in accordance with existing
civil service laws, rules and regulations: Provided, That upon
the filing of a case, either administrative or criminal, said
government official, employee or functionary concerned shall
automatically suffer suspension until the resolution of the
case.
RULE 98
Trustees
Section 1. Where trustee appointed. — A trustee necessary to
carry into effect the provisions of a will on written instrument
shall be appointed by the Court of First Instance in which the
will was allowed, if it be a will allowed in the Philippines,
otherwise by the Court of First Instance of the province in
which the property, or some portion thereof, affected by the
trust is situated.
Section 2. Appointment and powers of trustees under will.
Executor of former trustee need not administer trust. — 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 Court of First
Instance may, after notice to all persons interested, 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 testator. No person succeeding to a trust as executor or
administrator of a former trustee shall be required to accept
such trust.
Section 3. Appointment and powers of new trustee under
written instrument. — When a trustee under a written
instrument declines, resigns, dies or removed before the
objects of the trust are accomplished, and no adequate
provision is made in such instrument for supplying the
vacancy, the proper Court of First Instance 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, right, 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 and
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 or jointly with the others.
Section 4. Proceedings where trustee appointed abroad. —
When land in the Philippines is held in trust for persons
resident here by a trustee who derives his authority from
without the Philippines, such trustee shall, on petition filed in
the Court of First Instance of the province where the land is
situated, and after due notice to all persons interested, be
ordered to apply to the court for appointment as trustee; and
upon his neglect or refusal to comply with such order, 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.
Section 5. Trustee must file bond. — Before entering on the
duties of his trust, a trustee shall file with the clerk of the court
having jurisdiction of the trust a bond in the amount fixed by
the judge of said court, payable to the Government of the
Philippines and sufficient and available for the protection of
any party in interest, and a trustee who neglects to file such
bond shall be considered to have declined or resigned the
trust; 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 and may so exempt any trustee
when all persons beneficially interested in the trust, being of
full age, request the exemption. Such exemption may be
cancelled by the court at any time and the trustee required to
forthwith file a bond.
Section 6. Conditions included in bond. — The following
conditions shall be deemed to be part of the bond whether
written therein or not;
(a) 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;
(b) 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;
(c) 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 the
management and disposition thereof, and will render such
other accounts as the court may order;
(d) That at the expiration of his trust he will settle his account
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 to thereto.
But when the trustee is appointed as a successor to a prior
trustee, the court may dispense with the making and return of
an inventory, if one has already been filed, and in such case
the condition of the bond shall be deemed to be altered
accordingly.
Section 7. Appraisal. Compensation of trustee. — 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 inheritance tax appraisers to
assist in the appraisement. The compensation of the trustee
shall be fixed by the court, if it be not determined in the
instrument creating the trust.
Section 8. Removal or resignation of trustee. — The proper
Court of First Instance may, upon petition of the parties
beneficially interested and after due notice to the trustee and
hearing, remove a trustee if such removal appears essential in
the interest of the petitioner. The court may also, after due
notice to all persons interested, remove a trustee who is insane
or otherwise incapable of discharging his trust or evidently
unsuitable therefor. 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.
Section 9. Proceedings for sale or encumbrance of trust
estate. — When the sale or encumbrance of any real or
personal estate held in trust is necessary or expedient, the
court having jurisdiction of the trust may, on petition and after
due notice and hearing, order such sale or encumbrance to be
made, and the re-investment 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.

 The fact that the beneficiaries were not notified of the
existence of the trust or that the latter have not been
given an opportunity to accept it is of no importance
for it is not essential to the existence of a valid trust
and to the right of the beneficiaries to enforce the
same that they had knowledge thereof at the time of
its creation.
 Neither is it necessary that the beneficiary should
consent to the creation of the trust. In fact, in case of
voluntary trust, the assent of the beneficiary is not
necessary to render it valid because as a general rule
acceptance by the beneficiary is presumed
 A written instrument though inoperative as a will
from want of compliance with statutory requisitions,
may yet operate as a declaration of a trust.
 Article 1445 of the New Civil Code - No trust shall fail
because the trustee appointed declines the
designation unless the contrary should appear in the
instrument constituting the trust.
Exceptions:
1. Where the trust is purely personal in the sense that
the trustor has excluded its administration by any
person other than the trustee he designates, a court
cannot appoint a trustee or itself administer the trust
in the event of the death, incompetency or other
failure of the designated trustee.
2. A court may also refuse to exercise its power of
appointment where the trust is legally inoperative.
 Where a trust relation exists between parties, the
cestui que trust is entitled to a complete accounting
from the trustee, in which all data in the trustee's
accounts, which it is his duty to keep, should be
furnished.6 The trustee is bound to put his que trust
in possession of the full and true state of his affairs
before any settlement will bind
 For the purpose of prescription, the possession of the
property by the trustee is not an adverse possession,
but only a possession in the name and in behalf of the
owner of the same.
 Exception: When there is a repudiation of the trust,
such repudiation being open, clear and unequivocal,
known to the cestui que trust
RULE 99
Adoption and Custody of Minors
Section 1. Venue. — A person desiring to adopt another or
have the custody of a minor shall present his petition to the
Court of First Instance of the province, or the municipal or
justice of the peace court of the city or municipality in which
he resides.
In the City of Manila, the proceedings shall be instituted in the
Juvenile and Domestic Relations Court.
Section 2. Contents of petition. — The petition for adoption
shall contain the same allegations required in a petition for
guardianship, to wit:
(a) The jurisdictional facts;
(b) The qualification of the adopter;
(c) That the adopter is not disqualified by law;
(d) The name, age, and residence of the person to be adopted
and of his relatives of the persons who have him under their
care;
(e) The probable value and character of the estate of the
person to be adopted.
Section 3. Consent of adoption. — There shall be filed with the
petition a written consent to the adoption signed by the child,
if fourteen years of age or over and not incompetent, and by
the child's spouse, if any, and by each of its known living
parents who is not insane or hopelessly intemperate or has not
abandoned such child, or if there is no such parents by the
general guardian or guardian ad litem of the child, or if the
child is in the custody of an orphan asylum, children's home,
or benevolent society or person, by the proper officer of such
asylum, home, or society, or by such person; but if the child is
illegitimate and has not been recognized, the consent of its
father to the adoption shall not be required.
If the person to be adopted is of age, only his or her consent
and that of the spouse, if any, shall be required.
Section 4. Order for hearing. — If the petition and consent
filed are sufficient in form and substance, the court, by an
order reciting the purpose of the petition, shall fix a date and
place for the hearing thereof, which shall not be more than six
(6) months after the entry of the order, and shall direct that a
copy of the order be published before the hearing at least once
a week for three (3) successive weeks in some newspaper of
general circulation published in the province, as the court shall
deem best.
Section 5. Hearing and judgment. — Upon satisfactory proof
in open court on the date fixed in the order that such order has
been published as directed, that the allegations of petition are
true, and that it is a proper case for adoption and the
petitioner or petitioners are able to bring up and educate the
child properly, the court shall adjudge that thenceforth the
child is free from all legal obligations of obedience and
maintenance with respect to its natural parents, except the
mother when the child is adopted by her husband, and is, to
all legal intents and purposes, the child of the petitioner or
petitioners, and that its surname is changed to that the
petitioner or petitioners. The adopted person or child shall
thereupon become the legal heir of his parents by adoption
and shall also remain the legal heir of his natural parents. In
case of the death of the adopted person or child, his parents
and relatives by nature, and not by adoption, shall be his legal
heirs.
Section 6. Proceedings as to the child whose parents are
separated. Appeal. — When husband and wife are divorce or
living separately and apart from each other, and the question
as to the care, custody, and control of a child or children of
their marriage is brought before a Court of First Instance by
petition or as an incident to any other proceeding, the court,
upon hearing the testimony as may be pertinent, shall award
the care, custody, and control of each such child as will be for
its best interest, permitting the child to choose which parent it
prefers to live with if it be over ten years of age, unless the
parent so chosen be unfit to take charge of the child by the
reason of moral depravity, habitual drunkenness, incapacity,
or poverty. If, upon such hearing, it appears that both parents
are improper persons to have the care, custody, and control of
the child, the court may either designate the paternal or
maternal grandparent of the child, or his oldest brother or
sister, or some reputable and discreet person to take charge
of such child, or commit it to any suitable asylum, children's
home, or benevolent society. The court may in conformity with
the provisions of the Civil Code order either or both parents to
support or help support said child, irrespective of who may be
its custodian, and may make any order that is just and
reasonable permitting the parent who is deprived of its care
and custody to visit the child or have temporary custody
thereof. Either parent may appeal from an order made in
accordance with the provisions of this section. No child under
seven years of age shall be separated from its mother, unless
the court finds there are compelling reasons thereof.
Section 7. Proceedings as to vagrant or abused child. —
When the parents of any minor child are dead, or by reason of
long absence or legal or physical disability have abandoned it,
or cannot support it through vagrancy, negligence, or
misconduct, or neglect or refuse to support it, or treat it with
excessive harshness or give it corrupting orders, counsels, or
examples, or cause or allow it to engage in begging, or to
commit offenses against the law, the proper Court of First
Instance, upon petition filed by some reputable resident of the
province setting forth the facts, may issue an order requiring
such parents to show cause, or, if the parents are dead or
cannot be found, requiring the fiscal of the province to show
cause, at a time and place fixed in the order, why the child
should not be taken from its parents, if living; and if upon the
hearing it appears that the allegations of the petition are true,
and that it is order taking it from its parents, if living; and
committing it to any suitable orphan asylum, children's home,
or benevolent society or person to be ultimately placed, by
adoption or otherwise, in a home found for it by such asylum,
children's home, society, or person.
Section 8. Service of judgment. — Final orders or judgments
under this rule shall be served by the clerk upon the civil
registrar of the city or municipality wherein the court issuing
the same is situated.
RULE 100
Rescission and Revocation of Adoption
Section 1. Who may file petition; grounds. — A minor or other
incapacitated person may, through a guardian or guardian ad
litem, petition for the rescission or revocation of his or her
adoption for the same causes that authorize the deprivation
of parental authority.
The adopter may, likewise, petition the court for the rescission
of revocation of the adoption in any of these cases:
(a) If the adopted person has attempted against the file of the
adopter;
(b) When the adopted minor has abandoned the home of the
adopter for more than three (3) years;
(c) When by other acts the adopted person has repudiated the
adoption.
Section 2. Order to answer. — The court in which the petition
is filed 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 a copy of the petition shall be
served on the adverse party in such manner as the court may
direct
Section 3. Judgment. — If upon trial, on the day set therefor,
the court finds that the allegations of the petition are true, it
shall render judgment ordering the rescission or revocation of
the adoption, with or without costs, as justice requires.
Section 4. Service of Judgment. — A certified copy of the
judgment rendered in accordance with the next preceding
section shall be served upon the civil registrar concerned,
within thirty (30) days from rendition thereof, who shall
forthwith enter the action taken by the court in the register.
Section 5. Time within which to file petition. — A minor or
other incapacitated person must file the petition for rescission
or revocation of adoption within the five (5) years following his
majority, or if he was incompetent at the time of the adoption,
within the five (5) years following the recovery from such
incompetency.
The adopter must also file the petition to set aside the
adoption within five (5) years from the time the cause or
causes giving rise to the rescission or revocation of the same
took place.
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 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. — If the petition filed is sufficient
in form and substance, the court, by an order reciting the
purpose of the petition, shall fix a date 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.
Section 3. Hearing and judgment. — Upon satisfactory proof,
in open court on the date fixed in the order, that the
commitment applied for is for the public welfare or for the
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
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 proceedings arising
under the provisions of this rule.
 Insanity - generally denotes that condition of mind
which is so impaired in function or so deranged as to
induce a deviation from normal conduct in the person
so afflicted. More particularly, it denotes a mind that
is unsound, deranged, delirious or distracted
 The fact that a person is acting crazy is not conclusive
that he is insane. The popular meaning of the word
"crazy" is not synonymous with the legal terms
"insane", "non compos mentis", "unsound mind",
"idiot" or "lunatic"
 In all actions or proceedings, the burden of proving
insanity is on the plaintiff who alleged it
 A statutory proceeding to determine whether the
applicant has been restored to mental competency
assumes the validity of the original proceedings under
which he has adjudged incompetent and such
applicant may not thereafter question the validity of
the original jurisdiction
Republic of the Philippines
SUPREME COURT
Manila
A.M. No. 03-04-04-SC April 22, 2003
RE: PROPOSED RULE ON CUSTODY OF MINORS AND WRIT
OF HABEAS CORPUS
IN RELATION TO CUSTODY OF MINORS
RESOLUTION
RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS
CORPUS IN RELATION TO CUSTODY OF MINORS
Highlights
SECTION 1. Applicability. - This rule shall apply to petitions for
custody of minors and writs of habeas corpus in relation
thereto. The Rules of Court shall apply suppletorily.
Section 2. Petition for custody of minors; who may file.- A
verified petition for the rightful custody of a minor may be filed
by any person claiming such right. The party against whom it
may be filed shall be designated as the respondent.
Section 3. Where to file petition. - The petition for custody of
minors shall be filed with the Family Court of the province or
city where the petitioner resides or where the minor may be
found.
Section 4. Contents of petition. - The verified petition shall
allege the following:
(a) The personal circumstances of the petitioner and of the
respondent;
(b) The name, age and present whereabouts of the minor and
his or her relationship to the petitioner and the respondent;
(c) The material operative facts constituting deprivation of
custody; and
(d) Such other matters which are relevant to the custody of the
minor.
The verified petition shall be accompanied by a certificate
against forum shopping, which the petitioner must sign
personally.
Section 5. Summons; personal service on respondent. - If the
court is satisfied that the petition is sufficient in form and
substance, it shall direct the clerk of court to issue summons,
which shall be served together with a copy of the petition
personally on the respondent.
Section 6. Motion to Dismiss. - A motion to dismiss the
petition is not allowed except on the ground of lack of
jurisdiction over the subject matter or over the parties. Any
other ground that might warrant the dismissal of the petition
may be raised as an affirmative defense in the answer.
Section 7. Verified Answer. - The respondent shall file an
answer to the petition, personally verified by him, within five
days after service of summons and a copy of the petition.
Section 8. Case study; duty of social worker. - Upon the filing
of the verified answer or the expiration of the period to file it,
the court may order a social worker to make a case study of
the minor and the parties and to submit a report and
recommendation to the court at least three days before the
scheduled pre-trial.
Section 9. Notice of mandatory pre-trial. - Within fifteen days
after the filing of the answer or the expiration of the period to
file answer, the court shall issue an order: (1) fixing a date for
the pre-trial conference; (2) directing the parties to file and
serve their respective pre-trial briefs in such manner as shall
ensure receipt thereof by the adverse party at least three days
before the date of pre-trial; and (3) requiring the respondent
to present the minor before the court.
The notice of its order shall be served separately on both the
parties and their respective counsels. The pre-trial is
mandatory.
Section 10. Contents of 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 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 pre-trial.-(a) If
the petitioner fails to appear personally at the pre-trial, the
case shall be dismissed, unless his counsel or a duly authorized
representative appears in court and proves a valid excuse for
the non-appearance of the petitioner.
(b) If the respondent has filed his answer but fails to appear at
the pre-trial, the petitioner shall be allowed to present his
evidence ex parte. The court shall then render judgment on the
basis of the pleadings and the evidence thus presented.
Section 12. What may be done at pre-trial. - At the pre-trial,
the parties may agree on the custody of the minor. If the
parties fail to agree, the court may refer the matter to a
mediator who shall have five days to effect an agreement
between the parties. If the issue is not settled through
mediation, the court shall proceed with the pre-trial
conference, on which occasion it shall consider such other
matters as may aid in the prompt disposition of the petition.
Section 13. Provisional order awarding custody. - After an
answer has been filed or after expiration of the period to file
it, the court may issue a provisional order awarding custody of
the minor. As far as practicable, the following order of
preference shall be observed in the award of custody:
(a) Both parents jointly;
(b) Either parent, taking into account all relevant
considerations, especially the choice of the minor over seven
years of age and of sufficient discernment, unless the parent
chosen is unfit;
(c) The grandparent, or if there are several grandparents, the
grandparent chosen by the minor over seven years of age and
of sufficient discernment, unless the grandparent chosen is
unfit or disqualified;
(d) The eldest brother or sister over twenty-one years of age,
unless he or she is unfit or disqualified;
(e) The actual custodian of the minor over twenty-one years of
age, unless the former is unfit or disqualified; or
(f) Any other person or institution the court may deem suitable
to provide proper care and guidance for the minor.
Section 14. Factors to consider in determining custody. - In
awarding custody, the court shall consider the best interests
of the minor and shall give paramount consideration to his
material and moral welfare. The best interests of the minor
refer to the totality of the circumstances and conditions as are
most congenial to the survival, protection, and feelings of
security of the minor encouraging to his physical,
psychological and emotional development. It also means the
least detrimental available alternative for safeguarding the
growth and development of the minor.
The court shall also consider the following:
(a) Any extrajudicial agreement which the parties may have
bound themselves to comply with respecting the rights of the
minor to maintain direct contact with the non custodial parent
on a regular basis, except when there is an existing threat or
danger of physical, mental, sexual or emotional violence which
endangers the safety and best interests of the minor;
(b) The desire and ability of one parent to foster an open and
loving relationship between the minor and the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the person seeking
custody or who has had any filial relationship with the minor,
including anyone courting the parent;
(e) The nature and frequency of contact with both parents;
(f) Habitual use of alcohol, dangerous drugs or regulated
substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual,
psychological and educational environment for the holistic
development and growth of the minor; and
(i) The preference of the minor over seven years of age and of
sufficient discernment, unless the parent chosen is unfit.
Section 15. Temporary visitation rights. - The court shall
provide in its order awarding provisional custody appropriate
visitation rights to the non-custodial parent or parents, unless
the court finds said parent or parents unfit or disqualified.
The temporary custodian shall give the court and non
custodial parent or parents at least five days' notice of any
plan to change the residence of the minor or take him out of
his residence for more than three days provided it does not
prejudice the visitation rights of the non-custodial parent or
parents.
Section 16. Hold Departure Order. - The minor child subject of
the petition shall not be brought out of the country without
prior order from the court while the petition is pending.
The court, motu proprio or upon application under oath, may
issue ex parte a hold departure order, addressed to the Bureau
of Immigration and Deportation, directing it not to allow the
departure of the minor from the Philippines without the
permission of the court.
The Family Court issuing the hold departure order shall furnish
the Department of Foreign Affairs and the Bureau of
Immigration and Deportation of the Department of Justice a
copy of the hold departure order within twenty-four hours
from its issuance and through the fastest available means of
transmittal.
The hold departure order shall contain the following
information:
(a) The complete name (including the middle name), the date
and place of birth, the nationality and the place of last
residence of the person against whom a hold departure order
has been issued or whose departure from the country has been
enjoined;
(b) The complete title and docket number of the case in which
the hold departure order was issued;
(c) The specific nature of the case;
(d) The date of the hold departure order; and
(e) A recent photograph, if available, of the party against
whom a hold departure order has been issued or whose
departure from the country has been enjoined.
The court may recall the hold departure order motu proprio,
or upon verified motion of any of the parties after summary
hearing, subject to such terms and conditions as may be
necessary for the best interests of the minor.
Section 17. Protection Order. - The court may issue a
Protection Order requiring any person:
(a) To stay away from the home, school, business, or place of
employment of the minor, other parent or any other party, or
from any other specific place designated by the court;
(b) To cease and desist from harassing, intimidating, or
threatening such minor or the other parent or any person to
whom custody of the minor is awarded;
(c) To refrain from acts of commission or omission that create
an unreasonable risk to the health, safety, or welfare of the
minor;
(d) To permit a parent, or a party entitled to visitation by a
court order or a separation agreement, to visit the minor at
stated periods;
(e) To permit a designated party to enter the residence during
a specified period of time in order to take personal belongings
not contested in a proceeding pending with the Family Court;
and
(f) To comply with such other orders as are necessary for the
protection of the minor.
Section 18. Judgment. - After trial, the court shall render
judgment awarding the custody of the minor to the proper
party considering the best interests of the minor.
If it appears that both parties are unfit to have the care and
custody of the minor, the court may designate either the
paternal or maternal grandparent of the minor, or his oldest
brother or sister, or any reputable person to take charge of
such minor, or commit him to any suitable home for children.
In its judgment, the court may order either or both parents to
give an amount necessary for the support, maintenance and
education of the minor, irrespective of who may be its
custodian. In determining the amount of support, the court
may consider the following factors: (1) the financial resources
of the custodial and non-custodial parent and those of the
minor; (2) the physical and emotional health, special needs,
and aptitude of the minor; (3) the standard of living the minor
has been accustomed to; and (4) the non-monetary
contributions that the parents would make toward the care
and well-being of the minor.
The court may also issue any order that is just and reasonable
permitting the parent who is deprived of the care and custody
of the minor to visit or have temporary custody.
Section 19. Appeal. - No appeal from the decision shall be
allowed unless the appellant has filed a motion for
reconsideration or new trial within fifteen days from notice of
judgment.
An aggrieved party may appeal from the decision by filing a
Notice of Appeal within fifteen days from notice of the denial
of the motion for reconsideration or new trial and serving a
copy thereof on the adverse parties.
Section 20. Petition for writ of habeas corpus. - A verified
petition for a writ of habeas corpus involving custody of
minors shall be filed with the Family Court. The writ shall be
enforceable within its judicial region to which the Family Court
belongs.
However, the petition may be filed with the regular court in
the absence of the presiding judge of the Family Court,
provided, however, that the regular court shall refer the case
to the Family Court as soon as its presiding judge returns to
duty.
The petition may also be filed with the appropriate regular
courts in places where there are no Family Courts.
The writ issued by the Family Court or the regular court shall
be enforceable in the judicial region where they belong.
The petition may likewise be filed with the Supreme Court,
Court of Appeals, or with any of its members and, if so granted,
the writ shall be enforceable anywhere in the Philippines. The
writ may be made returnable to a Family Court or to any
regular court within the region where the petitioner resides or
where the minor may be found for hearing and decision on the
merits.
Upon return of the writ, the court shall decide the issue on
custody of minors. The appellate court, or the member
thereof, issuing the writ shall be furnished a copy of the
decision.

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 newspaper of general
circulation not later than April 30, 2003.

 Rationale of the rule on custody of minors and writ of

habeas corpus in relation to custody of minors -
Section 12, Article II of the Constitution states that
"The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic
autonomous social institution." Section 1, Article XV
adds that "The State recognizes the Filipino family as
the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total
development."
RULE 101 – NOT DISCUSSED BUT FAMILIARIZE 4. to liberate those who may be imprisoned without
Proceedings for Hospitalization of Insane Persons sufficient cause, and to deliver them from unlawful
custod
Section 1. Venue, Petition for commitment. — A petition for 5. to test the right under which a person is detained
the commitment of a person to a hospital or other place for 6. to determine whether the person under detention
the insane may be filed with the Court of First Instance of the is held under lawful authority
province where the person alleged to be insane is found. The  Writ cannot be suspended except in cases of invasion
petition shall be filed by the Director of Health in all cases or rebellion when the public safety requires it
where, in his opinion, such commitment is for the public  Habeas corpus is in no sense a suit between private
welfare, or for the welfare of said person who, in his parties. It is an inquisition by the government, at the
judgment, is insane and such person or the one having charge suggestion and instance of an individual, most
of him is opposed to his being taken to a hospital or other probably, but still in the name and capacity of the
place for the insane. sovereign
 Proceedings in habeas corpus are separate and
Section 2. Order for hearing. — If the petition filed is sufficient distinct from the main case from which the
in form and substance, the court, by an order reciting the proceedings spring
purpose of the petition, shall fix a date for the hearing thereof,  It deal simply with the detention of the prisoner and
and copy of such order shall be served on the person alleged stop with the authority by virtue of which he is
to be insane, and to the one having charge him, or on such of detained
his relatives residing in the province or city as the judge may  Who May Avail of the Writ: Every person unlawfully
deem proper. The court shall furthermore order the sheriff to imprisoned or restrained of his liberty under any
produce the alleged insane person, if possible, on the date of pretense whatever may prosecute a writ of habeas
the hearing. corpus, in order to inquire into the cause of such
imprisonment or restraint
Section 3. Hearing and judgment. — Upon satisfactory proof,  When will it or will not issue (Common Grounds)
in open court on the date fixed in the order, that the YAY NAY
commitment applied for is for the public welfare or for the
when a person is to enforce a right to
welfare of the insane person, and that his relatives are unable
unlawfully imprisoned service
for any reason to take proper custody and care of him, the
or restrained of his
court shall order his commitment to such hospital or other
liberty under any
place for the insane as may be recommended by the Director
pretense
of Health. The court shall make proper provisions for the
in a case where the to determine whether
custody of property or money belonging to the insane until a
court does not have a person has
guardian be properly appointed.
jurisdiction of the committed a crime
subject matter of the
Section 4. Discharge of insane. — When, in the opinion of the
offense
Director of Health, the person ordered to be committed to a
to obtain release from to determine a
hospital or other place for the insane is temporarily or
custody under final disputed interstate
permanently cured, or may be released without danger he
may file the proper petition with the Court of First Instance
judgment being in the boundary line
which ordered the commitment.
nature of a collateral
attack with such
Section 5. Assistance of fiscal in the proceeding. — It shall be radical defects as
the duty of the provincial fiscal or in the City of Manila the render the
fiscal of the city, to prepare the petition for the Director of proceeding or
Health and represent him in court in all proceedings arising judgment absolutely
under the provisions of this rule. void
where a person to punish respondent
RULE 102 continues to be
Habeas Corpus unlawfully denied one
Section 1. To what habeas corpus extends. — Except as or more of his
otherwise expressly provided by law, the writ of habeas constitutional
corpus shall extend to all cases of illegal confinement or freedoms
detention by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld from the where there is to afford the injured
person entitled thereto. present a denial of person redress, for
 Purpose: due process, where the illegal detention
1. to relieve a person from unlawful restraint the restraints are not
2. devised and exists as a speedy and effectual merely involuntary
remedy to relieve persons from unlawful restraint but appear to be
3. to obtain immediate relief from illegal confinement unnecessary
 to recover damages or CA does not preclude recourse to the writ. Thus,
other money award where the petitioner has the remedy of appeal or
exceptional Cases cannot have the effect certiorari because it will not be permitted to perform
of an appeal, writ of the functions of a writ of error or appeal for the
error, or certiorari, for purpose of reviewing mere errors or irregularities in
the purpose of the proceedings of a court having jurisdiction over the
reviewing mere error person and the subject matter
and irregularities in  Writ should be granted where the accused was
the proceedings compelled to testify for the prosecution in a case
“Habeas corpus, not for asserting or against the accused, despite the fact that his
prohibition, is the vindicating denial of judgment of conviction had already become final by
proper remedy for right to bail the dismissal of his appeal for failure of his counsel to
reviewing file brief
proceedings for the  Excessive sentence or penalty may be corrected by
deportation of writ
aliens.”  Where the trial court had jurisdiction over the cause,
- Bureau of over the person of the accused, and to impose the
Immigration is penalty provided for by law, the mistake committed
without authority to by the trial court, in the appreciation of the facts
issue a warrant for the and/or in the appreciation of the law cannot be
arrest of a person corrected by habeas corpus.
prior to an order of  A person discharged on bail is not imprisoned or
deportation. The restrained of his liberty in such a way as to entitle him
illegality may, to the writ of habeas corpus, directed to his bail
however, be cured by  Writ of habeas corpus is the proper legal remedy to
the subsequent filing enable parents to regain custody of minor children
of deportation Purposes:
proceedings. 1. to enable parents to regain the custody of a minor,
for correcting errors even though the latter be in the custody of a third
in appreciation of person of her own free will
facts/appreciation 2. to determine the right of custody of a child
of law Hence, petitioners must convincingly establish that
the minor whose behalf the application for the writ is
made is the person upon whom they have rightful
custody
 Moncupa v. Enrile - temporary release does not
render petition for writ moot and academic Note: Minor's welfare is paramount consideration
“The reservation of the military in the form of Thus, cases are decided, not on the legal right of the
restrictions attached to the temporary release of the petitioner to be relieved from unlawful imprisonment
petitioner constitute restraints on the liberty of Mr. or detention, as in the case of adults, but on the
Moncupa. Such restrictions limit the freedom of court's view of the best interests of those whose
movement of the petitioner. It is not physical restraint welfare requires that they be in custody of one person
alone which is inquired into by the writ of habeas or another.
corpus. Where a person continues to be unlawfully  Requisites For Issuance of Writ:
denied one or more of his constitutional freedoms, (1) that the petitioner has the right to the custody
where there is present a denial of due process, where over the minor,
the restraints are not merely involuntary but appear (2) that the rightful custody of the minor is being
to be unnecessary, and where a deprivation of withheld from the petitioner by the respondent, and
freedom original arbitrary, the person concerned or (3) that it is to the best interest of the minor
those applying in his behalf may still avail themselves concerned to be in the custody of petitioner and not
of the privilege of the writ. that of respondent
 Caunca v. Salazar - The fact that no physical force has  Writ of Habeas corpus may be used with Writ of
been exerted to keep her in the house of the Certiorari for the Purpose of Review - may be ancillary
respondent does not make less real the deprivation of to each other where necessary to give effect to the
her personal freedom of movement, freedom to supervisory powers of the higher courts; A writ of
transfer from one place to another, from to choose habeas corpus reaches the body and the jurisdictional
one's residence. Freedom may be lost due to external matters, but not the record. A writ of certiorari
moral compulsion, to be founded or groundless fear, reaches the record but not the body
to erroneous belief in the existence of the will  The inquiry in a writ of habeas corpus is addressed,
 Writ may issue even if another remedy which is less not to errors committed by a court within its
effective may be availed of by the defendant. Thus, jurisdiction, but to the question of whether the
failure by the accused to perfect his appeal before the
 proceeding or judgment under which the person has
been restrained is a complete nullity
 GR: Writ of habeas corpus cannot function as a writ of
error - it is not the proper remedy for the correction
of the errors which the accused seek to secure for the
authorities are clear that errors of judgment cannot
be corrected through the remedy of habeas corpus. It
will not lie to correct errors of fact or of law.
Exception: When the error affects the court's
jurisdiction or is one that would make the judgment
absolutely void.
 Habeas corpus does not lie where the petitioner has
the remedy of appeal or certiorari because it will not
be permitted to perform the functions of a writ of
error or appeal for the purpose of reviewing mere
errors or irregularities in the proceedings of a court
having jurisdiction
Section 2. Who may grant the writ. — 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 Court of First Instance, or any judge thereof for the
hearing and decision on the merits. It may also be granted by
a Court of First Instance, or a judge thereof, on any day and at
any time, and returnable before himself, enforceable only
within his judicial district.
 "The Family Court's Act of 1997" vested Family Courts
excusive original jurisdiction to hear petitions for
custody of minors and the issuance of the writ of
habeas corpus in relation to custody of minors.
 It does not, however, mean that the CA or other
regular courts have been deprived thereby of
jurisdiction to issue the writs of habeas corpus
involving the custody of minors.
 The petition may be filed with the regular court in the
absence of the presiding judge of the Family Court,
provided, however, that the regular court shall refer
the case to the Family Court as soon as its presiding
judge returns to duty.
Section 3. Requisites of application therefor. — Application for
the writ shall be by petition signed and verified either by the
party for whose relief it is intended, or by some person on his
behalf, and shall set forth:
(a) That the person in whose behalf the application is made is
imprisoned or restrained on his liberty;
(b) The officer or name of the person by whom he is so
imprisoned or restrained; or, if both are unknown or uncertain,
such officer or person may be described by an assumed
appellation, and the person who is served with the writ shall
be deemed the person intended;
(c) The place where he is so imprisoned or restrained, if known;
(d) A copy of the commitment or cause of detention of such
person, if it can be procured without impairing the efficiency
of the remedy; or, if the imprisonment or restraint is without
any legal authority, such fact shall appear.
Section 4. When writ not allowed or discharge authorized. —
If it appears that the person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a
court or judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall
not be allowed; or if the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Not
shall anything in this rule be held to authorize the discharge of
a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under
lawful judgment.
 Supervening events may bar release
GR: Writ of habeas corpus will not issue where the
person alleged to be restrained of his liberty is in
custody of an officer under a process issued by the
court which has jurisdiction to do so.
Exception: 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, be no longer
illegal at the time of the filing of the application
 Velasco v. CA - Even granting that a person was
illegally arrested, still the petition for a writ of habeas
corpus will not prosper because his detention has
become legal by virtue of the filing before the trial
court of the complaint against him and by the
issuance of the order denying the accused's motion
to dismiss or grant bail.
 Filing of a complaint or information for the offense
for which the accused is detained bars the availability
of the writ of habeas corpus
 Absence of a preliminary investigation does not
affect the court's jurisdiction over the case nor impair
the validity of the information or otherwise render it
defective. Remedy is not a petition for a Writ of
Habeas corpus but a motion before the trial court to
quash the Warrant of Arrest, and/or the Information
on grounds provided by the Rules or to ask for an
investigation
Section 5. When the writ must be granted and issued. — A
court or judge authorized to grant the writ must, when a
petition therefor is presented and it appears that the writ
ought to issue, grant the same forthwith, and immediately
thereupon the clerk of the court shall issue the writ under the
seal of the court; or in case of emergency, the judge may issue
the writ under his own hand, and may depute any officer or
person to serve it.
Section 6. To whom writ directed, and what to require. — In
case of imprisonment or restraint by an officer, the writ shall
be directed to him, and shall command him to have the body
of the person restrained of his liberty before the court or judge
designated in the writ at the time and place therein specified.
In case of imprisonment or restraint by a person not an officer,
the writ shall be directed to an officer, and shall command him
to take and have the body of the person restrained of his
liberty before the court or judge designated in the writ at the
time and place therein specified, and to summon the person
by whom he is restrained then and there to appear before said
court or judge to show the cause of the imprisonment or
restraint.
Section 7. How prisoner designated and writ served. — The
person to be produced should be designated in the writ by his
name, if known, but if his name is not known he may be
otherwise described or identified. The writ may be served in
any province by the sheriff or other proper officer, or by a
person deputed by the court or judge. Service of the writ shall
be made by leaving the original with the person to whom it is
directed and preserving a copy on which to make return or
service. If that person cannot be found, or has not the prisoner
in his custody, then the service shall be made on any other
person having or exercising such custody.
Section 8. How writ executed and returned. — The officer to
whom the writ is directed shall convey the person so
imprisoned or restrained, and named in the writ, before the
judge allowing the writ, or in case of his absence or disability,
before some other judge of the same court, on the day
specified in the writ, unless, from sickness or infirmity of the
person directed to be produced, such person cannot, without
danger, be bought before the court or judge; and the officer
shall make due return of the writ, together with the day and
the cause of the caption and restraint of such person according
to the command thereof.
Section 9. Defect of form. — No writ of habeas corpus can be
disobeyed for defect of form, if it sufficiently appears
therefrom in whose custody or under whose restraint the party
imprisoned or restrained is held and the court or judge before
whom he is to be bought.
Section 10. Contents of return. — When the person to be
produced is imprisoned or restrained 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 to the court or judge before whom the writ is
returnable, plainly and unequivocably:
(a) Whether he has or has not the party in his custody or
power, or under restraint;
(b) If he has the party in his custody or power, or under
restraint, the authority and the true and whole cause thereof,
set forth at large, with a copy of the writ, order execution, or
other process, if any, upon which the party is held;
(c) If the party 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;
(d) If he has had the party in his custody or power, or under
restraint, and has transferred such custody or restraint to
another, particularly to whom, at what time, for what cause,
and by what authority such transfer was made.
Section 11. Return to be signed and sworn to. — The return 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 all other cases unless the return is made and signed by a
sworn public officer in his official capacity.
Section 12. Hearing on return. Adjournments. — 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.
Section 13. When the return evidence, and when only a plea.
— If it appears 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, but
if he 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
must prove such facts.
 The failure of petitioners to file a reply to the RETURN
of THE WRIT warrants the dismissal of the petition.
Unless the allegations in the return are controverted,
they are deemed to be true or admitted pursuant to
the above provision that the return shall be
considered prima facie evidence of the cause of the
restraint, if it appears that the prisoner is in custody
under a warrant of commitment in pursuance of law
Section 14. When person lawfully imprisoned recommitted,
and when let 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. 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. If he 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
for his appearance before the court where the offense is
properly cognizable to abide its order of judgment; and the
court or judge shall certify the proceedings, together with the
bond, forthwith to the proper court. If such bond is not so filed,
the prisoner shall be recommitted to confinement.
 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
Section 15. When prisoner discharged if no appeal. — When
the court or judge has examined into the cause of caption and
restraint of the prisoner, and is satisfied that he is unlawfully
imprisoned or restrained, he shall forthwith order his
discharge from 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.
 Important and relevant issues:
Sec. 18. Appeal in habeas corpus cases, how taken. —
An appeal in habeas corpus cases shall be perfected
by filing with the clerk of court or the judge who
rendered the judgment, within forty-eight (48) hours
from notice of such judgment, a statement that the
person making it appeals therefrom.
Sec. 19. Who may appeal in habeas corpus cases. —
The appeal in habeas corpus cases may be taken in
the name of the person detained or of the officer or
person detaining him. But if the detention is by reason
of civil proceedings the party in interest or the person
who caused the detention shall be entitled to control
the appeal; and, if by virtue of criminal proceedings,
the provincial fiscal, or the city fiscal as the case may
be, is entitled to control the appeal on behalf of the
government, subject to the right of the Solicitor
General to intervene.
Sec. 20. Effect of appeal in habeas corpus cases. — A
judgment remanding the person detained to the
custody of the officer or person detaining him, shall
not be stayed by appeal. A judgment releasing the
person detained shall not be effective until the officer
or person detaining has been given opportunity to
appeal. An appeal taken by such officer or person
shall stay the order of release, unless the person
detained shall furnish a satisfactory bond in an
amount fixed by the court or judge rendering the
judgment. The bond shall be conditioned for the
appearance of the person detained before the
appellate court to abide its order in the appeal.
 Period to appeal is not only mandatory but
jurisdictional
 Kabigting v. Director of Prisons – the date on which
the decision was promulgated and/or served is not
counted and the period starts to run the following day
unless the same be a Sunday or legal holiday in which
case the period of appeal is to be considered from the
succeeding day. To perfect an appeal, a notice of
appeal is required to be filed with the Clerk of Court
or Judge who rendered the judgment
Section 16. Penalty for refusing to issue writ, or for disobeying
the same. — A clerk of a court who refuses to issue the writ
after allowance thereof and demand therefor, or a person to
whom a writ is directed, who neglects or refuses to obey or
make return of the same according to the command thereof,
or makes false return thereof, or who, upon demand made by
or on behalf of the prisoner, refuses to deliver to the person
demanding, within six (6) hours after the demand therefor, a
true copy of the warrant or order of commitment, shall forfeit
to the party aggrieved the sum of one thousand pesos, to be
recorded in a proper action, and may also be punished by the
court or judge as for contempt.
Section 17. Person discharged not to be again imprisoned. —
A person who is set at liberty upon a writ of habeas
corpus shall not be again imprisoned for the same offense
unless by the lawful order or process of a court having
jurisdiction of the cause or offense; and a person who
knowingly, contrary to the provisions of this rule, recommits
or imprisons, or causes to be committed or imprisoned, for the
same offense, or pretended offense, any person so set at
liberty, or knowingly aids or assists therein, shall forfeit to the
party aggrieved the sum of one thousand pesos, to be
recovered in a proper action, notwithstanding any colorable
pretense or variation in the warrant of commitment, and may
also be punished by the court or judge granting the writ as for
contempt.
Section 18. When prisoner may be removed from one custody
to another. — 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 by legal process,
or the prisoner be delivered to an inferior officer to carry to
jail, or, by order of the proper court or judge, be removed from
one place to another within the Philippines for trial, or in case
of fire epidemic, insurrection, or other necessity or public
calamity; and a person who, after such commitment, makes
signs, or counter-signs any order for such removal contrary to
this section, shall forfeit to the party aggrieved the sum of one
thousand 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 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
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 103
Change of Name
Section 1. Venue. — A person desiring to change his name
shall present the petition to the Court of First Instance of the
province in which he resides, or, in the City of Manila, to the
Juvenile and Domestic Relations Court.
 Legal Significance of a Person's Name
1. 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
2. word or combination of words by which a person is
distinguished from other individuals
3. used merely as one method of indicating the
identity of persons;
 The names of individuals usually have two parts:
1. Given name or proper name - is given to the
individual at birth or baptism, to distinguish him from
other individuals
 2. Surname or family name - 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.
 Characteristics of a name
(1) absolute - intended to protect the individual from
being confused with others
(2) obligatory in certain respects, for nobody can be
without a name
(3) fixed, unchangeable, or immutable, at least at the
start, and may be changed only for good cause and by
judicial proceedings
(4) outside the commerce of man, and, therefore,
inalienable and intransmissible by act inter vivos or
mortis causa.
(5) imprescriptible
 Purpose: Simply to have, wherever possible, a record
of the change, and in keeping with the object of the
statute, a court to which application is made should
normally make its decree recording such change of
name
 Nature:
1. A change of name is a special proceeding to
establish the status of a person involving his relation
with others, that is, his legal position in, or with regard
to, the rest of the community.
2. It is a proceeding in rem and, as such, strict
compliance with all jurisdictional requirements,
particularly on publication, is essential in order to vest
the court with jurisdiction thereover.
3. The only name that may be changed is the true or
official name recorded in the civil register
 Rule 103 does not say that only citizens of the
Philippines may petition for a change of name. The
word "person" is a generic term which is not limited
to Filipino citizens.
 It is enough that the petition be verified, signed by the
petitioner or some other person in his behalf, and set
forth:
(a) that the petitioner has been a bona fide resident
of the province where the petition is filed for at least
three (3) years to the date of filing;
(b) the cause for which the change of name is sought;
and
(c) the name asked for Section 2
 Only domicile aliens allowed to file petition
 Real name of a person - that given him in the Civil
Register, not the name by which he was baptized in
his Church or by which he has been known in the
community, or which he has adopted
 While judicial authority is required for a change of
name or surname there is no such requirement for
the continued use of a surname which a person had
already been using since childhood
Section 2. Contents of petition. — A petition for change of
name shall be signed and verified by the person desiring his
name changed, or some other person on his behalf, and shall
set forth:
(a) That the petitioner has been a bona fide resident of the
province where the petition is filed for at least three (3) years
prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is
sought;
(c) The name asked for.
 The requirement verification of a pleading is a formal,
not a jurisdictional, requisite.
 That requirement affect the form of the pleading and
non-compliance with it does not necessarily render
the pleading fatally defective.
 Lack of verification to a petition for change of name is
not a ground for dismissing the petition.
 Reason: 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.
 All names or aliases must appear in caption of petition
- if these are mentioned only in the body of the
petition or order, the omission is fatal to the petition.
Reason: Reader usually merely glances at the title of
the petition and may only proceed to read the entire
petition if the title is of interests to him
 To justify a request for change of name, petitioner
must show not only some proper or compelling
reason therefor but also that he will be prejudiced by
the use of his true and official name. Among the
grounds for change of name which have been held
valid are:
(a) When the name is ridiculous, dishonorable or
extremely difficult to write or pronounce;
(b) When the change results as a legal consequence,
as in legitimation;
(c) When the change will avoid confusion;
(d) having continuously used and been known since
childhood by a Filipino name, unaware of her alien
parentage;
(e) A sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith and without
prejudicing 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.
Section 3. Order for hearing. — If the petition filed is sufficient
in form and substance, the court, by an order reciting the
purpose of the petition, shall fix a date and place for the
hearing thereof, and shall direct that a copy of the order be
published before the hearing at least once a week for three (3)
successive weeks in some newspaper of general circulation
published in the province, as the court shall deem best. The
date set for the hearing shall not be within thirty (30) days
prior to an election nor within four (4) month after the last
publication of the notice.
 Purpose of the requirement of publication - to
apprise the public of the pendency of the petition so
that those who may know of any legal objection to it
might come forward with the information in order to
determine the fitness of petitioner for Philippine
Citizenship
  It is a proceeding in rem and, as such, strict register.
compliance with all jurisdictional requirements,
particularly on publication, is essential in order to vest RULE 104 - NOT DISCUSSED BUT FAMILIARIZE
the court with jurisdiction thereover. Voluntary Dissolution of Corporations
 Contents of petition v. Contents of publication:
Contents of petition Contents of Section 1. Where, by whom and on what showing application
publication made. — A petition for dissolution of a corporation shall be
applicant’s real name name or names of filed in the Court of First Instance of the province where the
applicant principal office of a corporation is situated. The petition shall
aliases or other cause for the change be signed by a majority of its board of directors or other
names of name officers having the management of its affairs, verified by its
name sought to be new name asked for president or secretary or one of its directors, and shall set forth
adopted all claims and demands against it, and that its dissolution was
 Effect of discrepancy in the petition and the published resolved upon by a majority of the members, or, if a stock
corporation, by the affirmative vote of the stockholders
order – If the defect is substantial, the effect is that
petitioner has not complied strictly with the legal holding and representing two-thirds of all shares of stock
requirement regarding publication, thereby issued or subscribed, at a meeting of its members or
rendering the entire proceeding had in the court stockholders called for that purpose.
below null and void
Section 2. Order thereupon for filing objections. — If the
 Calderon v. Republic - A petition to change the name
petition is sufficient in form and substance, the court by an
of an infant, should be granted only where to do so is
order reciting the purpose of the petition, shall fix a date on or
clearly for the best interest of the child. Mother had
before which objections thereto may be filed by any person,
considered the generous attitude of her husband as
which date shall not be less that thirty (30) nor more than sixty
an opportunity for her to promote the personality,
(60) days after the entry of the order. Before such date a copy
and enhance the dignity, of her daughter, by
of the order shall be published at least once a week for four (4)
eliminating what constitutes a stigma of illegitimacy
successive weeks in some newspaper of general circulation
which her child would continue to bear if her surname
published in the municipality or city where the principal office
is that of her illegitimate father
of the corporation is situated, or, if there be no such
 Insufficient Grounds Change of Name:
newspaper, then in some newspaper of general circulation in
(a) Separation of Spouses
the Philippines, and a similar copy shall be posted for four (4)
(b) No Proof of Prejudice by Use of Official Name
weeks in three public places in such municipality or city.
(c) Mere Use and Known By Different Name
(d) No Proof That True Name Evokes Derisive
Section 3. Hearing, dissolution, and disposition of assets.
Laughter
Receiver. — Upon five (5) days notice given after the date on
(e) Republic v. Marcos - (1) that "her daughter grew
which the right to file objections as fixed in the order expired,
up with, and learned to love and recognize Alfredo de
the court shall proceed to hear the petition and try any issue
la Cruz as her own father; (2) to afford her daughter a
made by objections filed; and if no such objection is sufficient,
feeling of security; and (3) that "Alfredo de la Cruz
and the material allegations of the petition are true, it shall
agrees to this petition, and has signified his
render judgment dissolving the corporation and directing such
conformity at the foot of this pleading
disposition of its assets as justice requires, and may appoint a
Reason for being invalid: a change of name
receiver to collect such assets and pay the debts of the
should not be permitted if it will give a false
corporation.
impression of family relationship to another
where none actually exists
Section 4. What shall constitute record. — The petition,
orders, proof of publication and posting, objections filed,
Section 4. Hearing. — Any interested person may appear at
declaration of dissolution, and any evidence taken, shall
the hearing and oppose the petition. The Solicitor General or
constitute the record in the case.
the proper provincial or city fiscal shall appear on behalf of the
Government of the Republic.
RULE 105 - NOT DISCUSSED BUT FAMILIARIZE
Judicial Approval of Voluntary Recognition of Minor Natural
Section 5. Judgment. — Upon satisfactory proof in open court
Children
on the date fixed in the order that such order has been
published as directed and that the allegations of the petition
Section 1. Venue. — Where judicial approval of a voluntary
are true, the court shall, if proper and reasonable cause
recognition of a minor natural child is required, such child or
appears for changing the name of the petitioner, adjudge that
his parents shall obtain the same by filing a petition to that
such name be changed in accordance with the prayer of the
effect with the Court of First Instance of the province in which
petition.
the child resides. In the City of Manila, the petition shall be
filed in the Juvenile and Domestic Relations Court.
Section 6. Service of judgment. — Judgments or orders
rendered in connection with this rule shall be furnished the civil
registrar of the municipality or city where the court issuing the
same is situated, who shall forthwith enter the same in the civil
Section 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.
Section 3. Order for hearing. — Upon the filing of the petition,
the court, by an order reciting the purpose of the same, shall
fix the date and place for the hearing thereof, which date shall
not be more than six (6) months after the entry of the order,
and shall, moreover, cause a copy of the order to be served
personally or by mail upon the interested parties, and
published once a week for three (3) consecutive weeks, in a
newspaper or newspaper of general circulation in the
province.
Section 4. Opposition. — Any interested party must, within
fifteen (15) days from the 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.
Section 5. Judgment. — If, from the evidence presented during
the hearing, the court is satisfied that the recognition of the
minor natural child was willingly and voluntarily made by he
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.
Section 6. Service of judgment upon civil registrar. — A copy
of the judgment rendered in accordance with the preceding
section shall be served upon the civil registrar whose duty it
shall be to enter the same in the register.
RULE 106 - NOT DISCUSSED BUT FAMILIARIZE
Constitution of Family Home
Section 1. Who may constitute. — The head of a family owning
a house and the land on which it is situated may constitute the
same into a family home by filing a verified petition to that
effect with the Court of First Instance of the province or city
where the property is located. In the City of Manila, the
petition shall be filed in the Juvenile and Domestic Relations
Court.
When there is danger that a person obliged to give support
may lose his or her fortune because of grave mismanagement
or on account of riotous living, his or her spouse, if any, and a
majority of those entitled to be supported by him or by her
may petition the Court of First Instance for the creation of the
family home.
Section 2. Contents of petition. — The petition shall contain
the following particulars:
(a) Description of the property;
(b) An estimate of its actual value;
(c) A statement that the petitioner is actually residing in the
premises;
(d) The encumbrances thereon;
(e) The names and addresses of all the creditors of the
petitioner or head of the family and of all mortgages and other
persons who have an interest in the property;
(f) The names of all the beneficiaries of the family home.
Section 3. Notice and publication. — The court shall notify the
creditors, mortgagees and all other persons who have an
interest in the estate, of the filing of the petition, causing
copies thereof to be served upon them, and published once a
week for three (3) consecutive weeks in a newspaper of
general circulation. The petition shall, moreover, be caused to
be posted in a conspicuous place in the parcel of land
mentioned therein, and also in a conspicuous place of the
municipal building of the municipality or city in which the land
is situated, for at least fourteen (14) days prior to the day of
the hearing.
Section 4. Objection and date of hearing. — In the notice and
publication required in the preceding section, the court shall
require the interested parties to file their objection to the
petition within a period of not less than thirty (30) days from
receipt of notice or from the date of last publication, and shall
fix the date and time of the hearing of the petition.
Section 5. Order. — After hearing, if the court finds that the
actual value of the proposed family home does not exceed
twenty thousand pesos, or thirty thousand pesos in chartered
cities, and that no third person is prejudiced thereby, or that
creditors have given sufficient security for their credits, the
petition shall be approved.
Section 6. Registration of order. — A certified copy of the order
of the court approving the establishment of the family home
shall be furnished the register of deeds who shall record the
same in the registry of property.
RULE 107
Absentees
Section 1. Appointment of representative. — When a person
disappears from his domicile, his whereabouts being
unknown, and without having left an agent to administer his
property, or the power conferred upon the agent has expired,
any interested party, relative or friend may petition the Court
of First Instance of the place where the absentee resided
before his dis-appearance, for the appointment of a person to
represent him provisionally in all that may be necessary. In the
City of Manila, the petition shall be filed in the Juvenile and
Domestic Relations Court.
 Purpose: To appoint an administrator over the
properties of the absentee
 It is not necessary that a declaration of absence be
made in a proceeding separate from and prior to a
petition for administration.
Section 2. Declaration of absence; who may petition. — After
the lapse of two (2) years from his disapperance and without
any news about the absentee or since the receipt of the last
news, or of five (5) years in case the absentee has left a person
in charge of the administration of his property, the declaration
of his absence and appointment of a trustee or administrative
may be applied for by any of the following:
(a) The spouse present;
(b) The heirs instituted in a will, who may present an authentic
copy of the same.
(c) The relatives who would succeed by the law of intestacy;
and
(d) Those who have over the property of the absentee some
right subordinated to the condition of his death.
Section 3. Contents of petition. — The petition for the
appointment of a representative, or for the declaration of
absence and the appointment of a trustee or an administrator,
must show the following:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs instituted in
the will, copy of which shall be presented, and of the relatives
who would succeed by the law of intestacy;
(c) The names and residences of creditors and others who may
have any adverse interest over the property of the absentee;
(d) The probable value, location and character of the property
belonging to the absentee.
Section 4. Time of hearing; notice and publication thereof. —
When a petition for the appointment of a representative, or
for the declaration of absence and the appointment of a
trustee or administrator, is filed, the court shall fix a date and
place for the hearing thereof where all concerned may appear
to contest the petition.
Copies of the notice of the time and place fixed for the hearing
shall be served upon the known heirs, legatees, devisees,
creditors and other interested persons, at least ten (10) days
before the day of the hearing, and shall be published once a
week for three (3) consecutive weeks prior to the time
designated for the hearing, in a newspaper of general
circulation in the province or city where the absentee resides,
as the court shall deem best.
Section 5. Opposition. — Anyone appearing to contest the
petition shall state in writing his grounds therefor, and serve a
copy thereof on the petitioner and other interested parties on
or before the date designated for the hearing.
Section 6. Proof at hearing; order. — At the hearing,
compliance with the provisions of section 4 of this rule must
first be shown. Upon satisfactory proof of the allegations in
the petition, the court shall issue an order granting the same
and appointing the representative, trustee or administrator
for the absentee. The judge shall take the necessary measures
to safeguard the rights and interests of the absentee and shall
specify the powers, obligations and remuneration of his
representative, trustee or administrator, regulating them by
the rules concerning guardians.
In case of declaration of absence, the same shall not take
effect until six (6) months after its publication in a newspaper
of general circulation designated by the court and in the
Official Gazette.
Section 7. Who may be appointed. — In the appointment of a
representative, the spouse present shall be preferred when
there is no legal separation. If the absentee left no spouse, or
if the spouse present is a minor or otherwise incompetent, any
competent person may be appointed by the court.
In case of declaration of absence, the trustee or administrator
of the absentee's property shall be appointed in accordance
with the preceding paragraph.
Section 8. Termination of administration. — The trusteeship
or administration of the property of the absentee shall cease
upon order of the court in any of the following cases:
(a) When the absentee appears personally or by means of an
agent;
(b) When the death of the absentee is proved and his testate
or intestate heirs appear;
(c) When a third person appears, showing by a proper
document that he has acquired the absentee's property by
purchase or other title.
In these cases the trustee or administrator shall cease in the
performance of his office, and the property shall be placed at
the disposal of whose may have a right thereto.
 Declaration of absence is unnecessary where there
are no properties
 GR: No independent action for declaration of
presumption of death
Exception: The need for declaration of presumptive
death for purposes of marriage
- for the purpose of a second valid marriage of the
present spouse, all that was necessary was that the
absent spouse be unheard of for seven consecutive
years at the time of the second marriage
- present spouse must first ask for a declaration of
presumptive death of the absent spouse in order not
to be guilty of bigamy in case her or she marries again
- with the judicial declaration that the missing spouse
is presumptively dead, the good faith of the present
spouse in contracting a second marriage is already
established
 There is presumption of death for a period of two (2)
years if in the disappearance of the missing spouse,
there was danger of death as provided in Art. 391 of
the Civil Code, namely:
(1) The missing person was on board a vessel lost
during a sea voyage, or an aeroplane which is missing;
(2) The missing person was in the armed forces and
had taken part in war; or
(3) The missing person was in danger of death under
other circumstances.
In the above case, the two-year period of absence is
computed from the occurrence of the event from
which death is presumed.
RULE 108
Cancellation Or Correction Of Entries In The Civil Registry
Section 1. Who may file petition. — Any person interested in
any act, event, order or decree concerning the civil status of
persons which has been recorded in the civil register, may file
a verified petition for the cancellation or correction of any
entry relating thereto, with the Court of First Instance of the
province where the corresponding civil registry is located.
Rule 103 Rule 108 clerical, then the procedure to be adopted is
Filed with RTC where Filed with RTC where Civil summary. If the rectification affects the civil status,
petitioner resides Registry is located citizenship or nationality of a party, it is deemed
Sol Gen must be notified Civil Register is made a substantial, and the procedure to be adopted is
and furnished with the party as a respondent adversary
petition
Petition is filed by person Petition is filed by any Section 2. Entries subject to cancellation or correction. —
deciding to change his person interested in any Upon good and valid grounds, the following entries in the civil
name act, event, order or register may be cancelled or corrected: (a) births: (b)
decree concerning the marriage; (c) deaths; (d) legal separations; (e) judgments of
civil status of persons annulments of marriage; (f) judgments declaring marriages
which has been recorded void from the beginning; (g) legitimations; (h) adoptions; (i)
in the civil registry acknowledgments of natural children; (j) naturalization; (k)
election, loss or recovery of citizenship; (l) civil interdiction; (m)
Publication required is for Publication required is for
judicial determination of filiation; (n) voluntary emancipation
three consecutive weeks three consecutive weeks
of a minor; and (o) changes of name.
but the court must also
cause notice to those who  Adversary proceeding - one having opposing parties;
contested, as distinguished from an ex parte
are named in the petition
application, one of which the party seeking relief has
given legal warning to the other party, and afforded
 Appropriate Adversary Proceedings -
the latter an opportunity to contest it; one where the
-What is left for the scope of operation of Rule 108
trial court has conducted proceedings where all
are substantial changes and corrections in entries of
relevant facts have been fully and properly
the civil register.
developed, where opposing counsel have been given
- RA 9048 is Congress' response to the confusion
opportunity to demolish the opposite party's case,
wrought by the failure to delineate as to what exactly
and where the evidence has been thoroughly
is that so called summary procedure for changes or
weighed and considered
corrections of a harmless or innocuous nature as
distinguished from that appropriate adversary  Thus, the persons who must be made parties to a
proceeding for changes or corrections of a substantial proceeding concerning the cancellation or correction
kind. RA 9048 now embodies that summary of an entry in the civil registrar are —
procedure while Rule 108 is that appropriate (1) the civil registrar, and
adversary proceeding. RA 9048 however has (2) all persons who have or claim any interest which
prospective application. would be affected thereby.
- Thus, if the correction sought to be made in the civil
register is clerical, then the procedure to be adopted Upon the filing of the petition, it becomes the duty of
is summary. If the rectification affects the civil status, the court to -
citizenship or nationality of a party, it is deemed (1) issue an order fixing the time and place for the
substantial, and the procedure to be adopted is hearing of the petition, and
adversary. (2) cause the order for hearing to be published once a
week for three (3) consecutive weeks in a newspaper
 Period to File Petition is from Discovery of Error:
of general circulation in the province.
Inasmuch as no law or rule specifically prescribes a
fixed time for filing the special proceeding under Rule
Section 3. Parties. — When cancellation or correction of an
108 in relation to Article 412 of the New Civil Code, it
entry in the civil register is sought, the civil registrar and all
is the following provision of the New Civil Code that
persons who have or claim any interest which would be
applies –
affected thereby shall be made parties to the proceeding.
"Art. 1149. Other actions whose periods are
not fixed in this Code or in other laws must be
Section 4. Notice and publication. — Upon the filing of the
brought within five years from the time the
petition, the court shall, by an order, fix the time and place for
right of action accrues."
the hearing of the same, and cause reasonable notice thereof
 The right of action accrues when there exists a cause
to be given to the persons named in the petition. The court
of action, which consists of three (3) elements,
shall also cause the order to be published once a week for
namely:
three (3) consecutive weeks in a newspaper of general
a) a right in favor of the plaintiff by whatever means
circulation in the province.
and under whatever law it arises or is created;
b) an obligation on the part of the defendant to
Section 5. Opposition. — The civil registrar and any person
respect such right; and
having or claiming any interest under the entry whose
c) an act or omission on the part of such defendant
cancellation or correction is sought may, within fifteen (15)
violative of the right of the plaintiff. It is only when the
days from notice of the petition, or from the last date of
last element occurs or takes place that it can be said
publication of such notice, file his opposition thereto.
in law that a cause of action has arisen
 Proceeding when error is clerical or substantial - If the
correction sought to be made in the civil register is
Section 6. Expediting proceedings. — The court in which the
proceeding is brought may make orders expediting the
proceedings, and may also grant preliminary injunction for the
preservation of the rights of the parties pending such
proceedings.
Section 7. Order. — After hearing, the court may either dismiss
the petition or issue an order granting the cancellation or
correction prayed for. In either case, a certified copy of the
judgment shall be served upon the civil registrar concerned
who shall annotated the same in his record.
REPUBLIC ACT NO. 9048 March 22, 2001
AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL
REGISTRAR OR THE CONSUL GENERAL TO CORRECT A
CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY
AND/OR CHANGE OF FIRST NAME OR NICKNAME IN
THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL
ORDER, AMENDING FOR THIS PURPOSE ARTICLES
376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINES
Highlight Provisions:
Section 1. Authority to Correct Clerical or Typographical
Error and Change of First Name or Nickname – No entry in a
civil register shall be changed or corrected without a judicial
order, except for clerical or typographical errors and change
of first name or nickname which can be corrected or changed
by the concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act and its
implementing rules and regulations.
Section 2. Definition of Terms – As used in this Act, the
following terms shall mean:
(1) "City or Municipal civil registrar" refers to the head of the
local civil registry office of the city or municipality, as the case
may be, who is appointed as such by the city or municipal
mayor in accordance with the provisions of existing laws.
(2) "Petitioner" refers to a natural person filing the petition
and who has direct and personal interest in the correction of a
clerical or typographical error in an entry or change of first
name or nickname in the civil register.
(3) "Clerical or typographical error" refers to a mistake
committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register
that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the eyes
or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or
records: Provided, however, That no correction must involve
the change of nationality, age, status or sex of the petitioner.
(4) "Civil Register" refers to the various registry books and
related certificates and documents kept in the archives of the
local civil registry offices, Philippine Consulates and of the
Office of the Civil Registrar General.
(5) "Civil registrar general" refers to the Administrator of the
National Statistics Office which is the agency mandated to
carry out and administer the provision of laws on civil
registration.
(6) "First name" refers to a name or nickname given to a
person which may consist of one or more names in addition to
the middle and last names.
Section 3. Who May File the Petition and Where. – Any
person having direct and personal interest in the correction of
a clerical or typographical error in an entry and/or change of
first name or nickname in the civil register may file, in person,
a verified petition with the local civil registry office of the city
or municipality where the record being sought to be corrected
or changed is kept.
In case the petitioner has already migrated to another place in
the country and it would not be practical for such party, in
terms of transportation expenses, time and effort to appear in
person before the local civil registrar keeping the documents
to be corrected or changed, the petition may be filed, in
person, with the local civil registrar of the place where the
interested party is presently residing or domiciled. The two (2)
local civil registrars concerned will then communicate to
facilitate the processing of the petition.
Citizens of the Philippines who are presently residing or
domiciled in foreign countries may file their petition, in person,
with the nearest Philippine Consulates.
The petitions filed with the city or municipal civil registrar or
the consul general shall be processed in accordance with this
Act and its implementing rules and regulations.
All petitions for the clerical or typographical errors and/or
change of first names or nicknames may be availed of only
once.
Section 4. Grounds for Change of First Name or Nickname.
– The petition for change of first name or nickname may be
allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to write
or pronounce.
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that by that first name or nickname in the
community: or
(3) The change will avoid confusion.
Section 6. Duties of the City or Municipal Civil Registrar or the
Consul General. – The city or municipal civil registrar or the
consul general to whom the petition is presented shall
examine the petition and its supporting documents. He shall
post the petition in a conspicuous place provided for that
purpose for ten (10) consecutive days after he finds the
petition and its supporting documents sufficient in form and
substance.
The city or municipal civil registrar or the consul general shall
act on the petition and shall render a decision not later than
five (5) working days after the completion of the posting
and/or publication requirement. He shall transmit a copy of his
decision together with the records of the proceedings to the
Office of the Civil Registrar General within five (5) working
days from the date of the decision.
Section 7. Duties and Powers of the Civil Registrar General.
– The civil registrar general shall, within ten (10) working days
from receipt of the decision granting a petition, exercise the
power to impugn such decision by way of an objection based
on the following grounds:
(1) The error is not clerical or typographical;
(2) The correction of an entry or entries in the civil register is
substantial or controversial as it affects the civil status of a APPEALABLE under Rule APPEAL under
person; or 109 Rule 109 is NOT
(3) The basis used in changing the first name or nickname of a PROPER
person does not fall under Section 4. Appeal by surety All
The civil registrar general shall immediately notify the city or INTERLOCUTORY
municipal civil registrar or the consul general of the action orders
taken on the decision. Upon receipt of the notice thereof, the Appeal by heir from Order directing
city or municipal civil registrar or the consul general shall money claim administrator to
notify the petitioner of such action. take action to
The petitioner may seek reconsideration with the civil registrar Recover amount
general or file the appropriate petition with the proper court. due to the estate
If the civil registrar general fails to exercise his power to Order for license to sell Order made in
impugn the decision of the city or municipal civil registrar or of administration
the consul general within the period prescribed herein, such proceedings
decision shall become final and executory. relating to
Where the petition is denied by the city or municipal civil inclusion or
registrar or the consul general, the petitioner may either
exclusion of
appeal the decision to the civil registrar general or file the
items of property
appropriate petition with the proper court.
in the inventory
of executor or
RULE 109
administrator
Appeals in Special Proceedings
Order against bond Order appointing
Section 1. Orders or judgments from which appeals may be
special
taken. — An interested person may appeal in special
administrator
proceedings from an order or judgment rendered by a Court of
Order to contract
First Instance or a Juvenile and Domestic Relations Court,
obligation
where such order or judgment:
(a) Allows or disallows a will;
Order appointing a regular
(b) Determines who are the lawful heirs of a deceased person,
administrator
or the distributive share of the estate to which such person is Order annulling
entitled; appointment of guardian
(c) Allows or disallows, in whole or in part, any claim against Order removing a guardian
the estate of a deceased person, or any claim presented on Inventories, and claims
behalf of the estate in offset to a claim against it; against estate
(d) Settles the account of an executor, administrator, trustee Order directing that the
or guardian; cost of a mausoleum be
(e) Constitutes, in proceedings relating to the settlement of the deducted from one-third
estate of a deceased person, or the administration of a trustee of the free portion
or guardian, a final determination in the lower court of the Appeal by a person
rights of the party appealing, except that no appeal shall be declared incompetent
allowed from the appointment of a special administrator; and Appeal from an order
(f) Is the final order or judgment rendered in the case, and refusing to intervene in a
affects the substantial rights of the person appealing unless it special proceedings
be an order granting or denying a motion for a new trial or for Ruling on declaration of
reconsideration. heirs

 Mode of Appeal - period of appeals shall be thirty (30) Section 2. Advance distribution in special proceedings. —
days, a record on appeal being required Notwithstanding a pending controversy or appeal in
 Since liquidation proceedings against an insolvent proceedings to settle the estate of a decedent, the court may,
corporation is a special proceeding, the appeal is by in its discretion and upon such terms as it may deem proper
record on appeal and just, permit that such part of the estate may not be
 Certiorari and mandamus not a substitute for appeal affected by the controversy or appeal be distributed among
– Florendo v. CFI - Petitioners could, therefore, have the heirs or legatees, upon compliance with the conditions set
appealed the order to cure any defect or infirmity forth in Rule 90 of this rules.
therein. But they neglected to do so and allowed the
order to become final. Having thus lost their remedy
by appeal due to their own neglect, they cannot now
seek redress by certiorari and mandamus, it not
appearing that the lower court has acted without
jurisdiction. Certiorari and mandamus will not lie as a
substitute for an appeal.