specpro-custody of minors

8/10/2019 Specpro-custody of Minors

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CUSTODY OF MINORS

Petitions for custody of children are to be filed in the Family Court of the province or thecity where the petitioner is residing. ( Sec. 5b, R.A. 8369 vis--vis Rule 99, Sec. 1)

Awarding of custody

The task of choosing the parent to whom custody should be awarded is not a ministerialfunction to be determined by a simple determination of the age of the child. The paramount

criterion must always be the childs interests. ( Espiritu v. CA, 15 March 1995)

Custody of the child shall be awarded in accordance with the following guidelines:

( ! "o child under # years of age shall be separated from its mother unless the court finds there are compelling reasons therefor. ( C !13"Rule 99, Sec. 6)

($! %f the child is over & years of age' the court shall permit the child tochoose which parent he prefers to live with. The child s preference shallbe respected unless the parent chosen be unfit to take charge of thechild by reason of moral depravity' habitual drunkenness' incapacity or poverty.

()! %f it appears in such hearing that both parents are improper personsto have custody of the child' the court may designate any of the followingto take charge of the child:

a. The paternal or maternal *randparent of the child' or

b. +is oldest brother or sister' or

c. ,ome reputable and discreet person to take charge of suchchild

The Court may also commit the child to any suitable asylum' childrenshome or benevolent society.

Support

The court may' in conformity with the provisions of the Civil Code order either or bothparents to support or help support said child irrespective of who may be its custodian. ( Rule 99,Sec. 6)

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Jurisdiction and venue of custody proceedingsProceedings !en parents of c!i"d are separat ed


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Visitation right

The court may make any order that is -ust and reasonable permitting the parent to visit

the child or have temporary custody thereof. ( Rule 99, Sec. 6)isitation right refers to the right of access of a non/custodial parent to his or her child or

children. The Constitution and the Family Code recogni0e the inherent and natural right of parents and those e1ercising parental authority to' among others' keep children in their companyand to give them love and affection' advice and counsel' companionship and understanding.( Art. ##, Sec. 1!, 198$ C%&stituti%&" C 15', !'9, !!')

The right of a parent to visit his or her child or children e1tends not merely to legitimaterelationships: it e1tends to void or ine1istent marriages' as well as illegitimate relationships.(Silva v. CA a&( %&*ales, !$5 SCRA 6'+)

Availability of appeal

2ither parent may appeal from an order made in accordance with the provisions of thissection.

3ny reputable resident may file a petition with the Family Court to have a minor childtaken from his or her parents if said parents:

( ! are dead' or

($! by reason of long absence or physical disability have abandoned the child4 or

()! cannot support the child through vagrancy' negligence or misconduct4 or

(5! neglect or refuse to support it4 or

(6! treat it with e1cessive harshness4 or

(7! or give it corrupting orders' counsels or e1amples4 or

(#! cause to allow it to engage in begging or to commit offenses against the law.

The Court may issue an order re8uiring such parents ( %r the iscal, i the pare&ts are(ea( %r ca&&%t be %u&() to show cause' at a time and place fi1ed in the order' why the childshould not be taken from the parents' if living.

%f upon hearing' it appears that the allegations of the petition are true and that it is for thebest interests of the child' the court may make an order taking it from its parents' if living4 and

committing it to any suitable orphan asylum' childrens home or benevolent society or person' tobe ultimately placed by adoption or otherwise in a home found for it by such asylum' childrens

home' society or person. ( Rule 99, Sec. $)

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Proceedings as to a#used or vagrant c!i"d


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Constitution of Family HomeThe provisions of 9ule &7 on the constitution of the family home have been abrogated

by the promulgation of the Family Code. The substantive law on the constitution of the familyhome is now the Family Code' 3rticles 6$/ 7$.

The family home is the dwelling house and the land on which it is situated' where ahusband and his wife' or an unmarried head of a family' and their respective families reside. ( C 15!)

The family home is deemed constituted from the time it is occupied as a familyresidence. ( C 153)

The family home is constituted on the house where the family resides and the land onwhich it is situated.

The family home must be part of the properties of the absolute community or thecon-ugal partnership' or of the e1clusive properties of either spouse with the latters consent. %tmay also be constituted by an unmarried head of a family on his or her own property.

Property sub-ect of a conditional sale on installments where ownership is reserved byvendor only to guarantee payment of the purchase price may also be constituted as a familyhome. ( C 156)

( ! The husband and wife' or an unmarried person who is the head of a family4and

($! Their parents' ascendants' descendants' brothers and sisters' whether therelationship be legitimate or illegitimate' who are living in the family homeand who depend upon the head of the family for support. ( C 15+)

For purposes of availing of the benefits of a family home as provided for by the FamilyCode' a person may constitute or be the beneficiary of only family home. ( C 161)

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Fa$i"y %o$e& definedOn !at properties constituted'eneficiaries of t!e fa$i"y !o$ e()e$ption fro$ e)ecution


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Rule; exceptions

The family home is e1empt from e1ecution' forced sale or attachment from the time of its constitution and so long as any of its beneficiaries actually resides therein' e1cept in thefollowing instances:

( ! for nonpayment of ta1es4

($! for debts incurred prior to the constitution of the family home4

()! for debts secured by mortgages on the premises before or after suchconstitution4 and

(5! for debts due to laborers' mechanics' architects' builders' material menand others who have rendered service or furnished material for theconstruction of the building.

Extent of exemption

3t the time of its constitution' the actual value of the family home shall not e1ceedP)&&'&&& in urban areas' and P$&&'&&& in rural areas' or such amounts as may hereafter befi1ed by law. %f the value of the currency changes after adoption of the FC' the value mostfavorable for the constitution of the family home shall be the basis of evaluation. ( his is le t t%the (iscreti%& % the u(/e.) 0 C 15$)

For purposes of this 3rticle' urban areas are deemed to include chartered cities andmunicipalities whose annual income at least e8uals that legally re8uired for chartered cities. 3llothers are deemed to be rural areas.

Claim of creditor not falling under Art. !!

"hen creditor can apply for order directing sale of family home under execution.hen a creditor whose claim is not among those mentioned in 3rt. 66 obtains a -udgment in his

favor' and he has reasonable grounds to believe that the family home is actually worth more thanthe ma1imum amount fi1ed in 3rt. 6#' he may apply to the court which rendered the -udgment for an order directing the sale of the property under e1ecution.

#rder of sale under execution. The Court shall order the sale under e1ecution if it findsthat the actual value of the family home e1ceeds the ma1imum amount allowed by law at the timeof its constitution.

Execution sale. 3t the e1ecution sale' no bid below the value allowed for a family homeshall be considered.

Application of proceeds. The proceeds shall be applied as follows:

( ! First to the ma1imum amount allowed by law for a family home4($! Then to the liabilities under -udgment4()! 3nd lastly' to costs.

3ny e1cess shall be given to the -udgment debtor.

$ncrease in actual value. %f the increased actual value e1ceeds the ma1imum allowed in 3rt. 6# and results from subse8uent voluntary improvements introduced by the person or

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persons constituting the family home' by the owner or owners of the property' or by any of thebeneficiaries' the same rule and procedure shall apply.

Sale or encumbrance of family home

The family home may be sold' alienated' donated' assigned or encumbered by theowners with the written consent of the person constituting the family home' the spouse and ama-ority of the beneficiaries of legal age. Courts shall decide in case of conflict. ( C 158)

r% ess%r 2ala&e has re ar4e( that this pr%visi%& is (a&/er%us.

#n continuation of family home as such

The family home shall continue as such despite the death of one or both spouses or of the unmarried head of the family:

( ! for & years4 or

($! for as long as there is a minor beneficiary.

+eirs cannot partition the same unless the court finds compelling reasons therefor.

This rule applies regardless of whoever owns the property or constituted the family home.( C 159)

$nclusion in the gross estate

The total value of the family home must be included as part of the decedent s grossestate.

%axation

For purposes of ta1ation' the fair market value of the family home is allowed as adeduction from the gross estate for the purpose of computing the estate ta1 due. 3 limit of P million is allowed as deduction. 3ny e1cess shall be sub-ect to estate ta1.

3 certification from the barangay captain of the locality that the family home was indeeda family home of the decedent is a condition si&e ua &%& for the e1emption ; deduction.

3lthough the Family Code now makes constitution of the family home automatic upon itsoccupancy as such' the Family Courts 3ct provides that all petitions for constitution of the familyhome are within the e1clusive original -urisdiction of the Family Courts. ( Sec. 5h, R.A. 8369)

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(ffect of deat! of spouse*s or !ead of fa$i"yPetitions for constitution of t!e fa$i"y !o$e


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Absentees

3bsence may be defined as the legal status of a person who has absented himself fromhis domicile and whose whereabouts and fate are unknown' it not being known with certaintywhether he is still living or not.

The Civil Code provisions on absence were enacted in order to protect:

( ! The interest of the person himself who has disappeared4

($! The rights of ) rd parties against the absentee' especially those whohave rights which would depend upon the death of the absentee4and

()! The general interest of society which may re8uire that property doesnot remain abandoned without someone representing it and withoutan owner. ( Re7es v. Ale a&(r%)

There are ) stages of absence:

& ' (R#V$S$#)A* A+SE)CE

Provisional absence is when a person disappears from his domicile' hiswhereabouts being unknown' without leaving an agent to administer his property.( CC 381)

&,' -EC*ARE- A+SE)CE


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Re2uisites for provisional absence

( ! The absentee has disappeared from his domicile4

($! +is whereabouts are unknown4

()! +e did not leave any agent to administer his property4

(5! The appointment of a representative in connection with such propertyis urgent or necessary

"hen appointment of representative is necessary

3n appointment of a representative is necessary when the absent party either did notleave an agent to administer his property' or if the power conferred by the absentee upon hisagent has e1pired. ( CC 381)

"hen necessary

3 declaration of absence is necessary when:

( ! The absentee has properties which have to be taken care of or administered by a representative appointed by the Court ( CC 38+) 4

($! The wife is asking the court that the administration of all classes of property in the marriage be transferred to her ( CC 196) 4

()! The spouse of the absentee is asking for separation of property ( CC 191) .

%nasmuch as a -udicial declaration of absence is patrimonial in purpose' it is unnecessarywhere there are no properties to be administered. ( Re7es v. Ale a&(r%, a&uar7 16, 1986)

"hen declaration of absence may be obtained

%f absentee did not leave a person in chargeof the administration of his properties: $ years having elapsed without any news about

the absentee' or since the receipt of the lastnews

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Provisiona" a#sence Dec"aration of a#sence


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%f he left a person in charge 6 years having elapsed without news about theabsentee or since the last news about him

Petition for appointment of arepresentative in provisional

absence

Petition for declaration of absence and appointment of

trustee or administrator

ho may petition 3ny interested party' relativeor friend of the absentee maypetition for the appointment of a representative in provisionalabsence. ( Rule 1'$, Sec. 1)

The following may ask for thedeclaration of absence:

( ! The spouse present4

($! The heirs instituted in awill' who may present anauthentic copy of the same4

()! The relatives who maysucceed by the law of intestacy4

(5! Those who may have someright over the property of theabsentee subordinated to thecondition of his death ( CC 385)

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Co$$on provisions for provisiona" a#senceand dec"aration of a#sence


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Contents The petition for the appointment of a representative' or for thedeclaration of absence and the appointment of a trustee or administrator' must show the following:

( ! -urisdictional facts4

($! names' ages' and residences of the heirs instituted in thewill' copy of which shall be presented' and of the relativeswho would succeed by the law of intestacy4

()! names and residences of creditors and others who mayhave any adverse interest over the property of theabsentee4

(4) the probable value' location and character of the propertybelonging to the absentee. ( Rule 1'$, Sec. 3)

,etting of hearing4 notice andpublication

( ! Court shall fi1 a date and place for hearing of the petition.

($! Copies of the notice of time and place for hearing shall beserved on the known heirs' legatees' devisees' creditorsand other interested persons' at least & days before theday of the hearing.

()! The notice shall likewise be published once a week for )consecutive weeks prior to the time designated for thehearing in a newspaper of general circulation in theprovince or city where the absentee resides.

=pposition 3ny opposition to the petition shall state in writing the groundstherefor' and a copy thereof must be served on the petitioner and other interested parties on or before the date of thehearing. ( Rule 1'$, Sec. 5)

Proof at hearing4 order 3t the hearing' satisfactory proof must be shown of the fact of compliance with the notice and publication re8uirements' and of the allegations in the petition.

2ffectivity of court order Court order becomes effectiveonce it is final and e1ecutory.


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hoever claims a right of a person whose e1istence not recogni0ed must prove that hewas living at the time his e1istence was necessary to ac8uire such right. ( CC 393)

>pon opening of succession to which the absentee is called' his share shall accrue tohis coheirs' unless the absentee has heirs' assigns or a representative. This is without pre-udiceto the provisions of "CC )?) ( CC 39+), and without pre-udice to the action of petition for inheritance or other rights which are vested in the absentee' his representatives or successors ininterests' which shall not be e1tinguished e1cept by lapse of time fi1ed for prescription. ( CC 395)

Those who may have entered upon the inheritance shall appropriate the fruits receivedin good faith so long as the absentee does not appear' or while his representatives or successorsin interest do not bring the proper actions. ( CC 396)

"ho may be appointed

%n the appointment of a representative' the spouse present shall be preferred when thereis no legal separation.

%f the absentee left no spouse' or if the spouse present is a minor ( &%t applicable u&(er the curre&t state % the la:) or otherwise incompetent' any competent person may be appointedby the court. ( CC 383" Rule 1'$, Sec. $)

*imitations on wife as administratrix

3 wife appointed as administratri1 of her husbands property cannot alienate or encumber the property or that of the con-ugal property without -udicial authority.

%ermination of administration

The trusteeship or administration of the property shall cease upon order of the court inany of the following cases:

( ! hen the absentee appears personally or by means of an agent4

($! hen the death of the absentee is proved and his testate or intestate heirsappear4

()! hen a third person appears' showing by a proper document that he hasac8uired the absentees property by purchase or title.

%n these cases' the trustee or administrator shall cease in the performance of his office' and theproperty shall be placed at the disposal of those who may have a right thereto

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+d$inistration


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"hen the presumption of death arises

For purposes of opening succession:

*enerally: & years

%f absentee disappeared afterthe age of #6 years: 6 years

For all other purposes: # years

,pecial circumstances: 5 years

person aboard a vessel lost during sea voyage' or an airplane missing' and notheard of for 5 years since loss of the vessel or plane4

person in armed forces who has taken part in the war and missing for 5 years4

person who has been in danger of death under circumstances and e1istence notknown for 5 years.

)o independent action; exception

There shall be no independent action for the declaration of presumption of death' e1ceptfor purposes of remarriage under the Family Code.

Re2uisites for declaration

There are 5 re8uisites for the declaration of presumptive death under 3rt. 5 of theFamily Code:

( ! That the absent spouse has been missing for 5 consecutive years'or $ consecutive years if the disappearance occurred where there isdanger of death under the circumstances laid down in 3rt. )? of theCivil Code4

($! That the present spouse wishes to remarry4

()! That the present spouse has a well/founded belief that the absenteeis dead4 and

(5! That the present spouse files a summary proceeding for thedeclaration of presumptive death of the absentee. ( Republic v.

%lasc%, !!' SCRA !')

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Dec"aration of presu$ptive deat!


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Recovery of property %f the absentee appears' or without appearing his e1istence is proved' he shall recover

his property in the condition in which it may be found' and the price of any property that may havebeen alienated or the property ac8uired therewith.

+owever' the absentee cannot claim either fruits or rents. ( CC 39!" Rule 1'$, Sec. +)

%ermination of subse2uent marriage

3ny subse8uent marriage under 3rt. 5 of the Family Code which was contracted by thepresent spouse shall be automatically terminated by the recording of t!e affidavit of reappearance of the absent spouse' unless there is a -udgment annulling the previous marriage

or declaring it void ab i&iti%. +owever' this is without pre-udice to the fact of reappearance being -udicially determined in case such fact is disputed. ( C +!)

The specific effects of the termination of the subse8uent marriage are discussed in 3rt.5)/55 of the Family Code.

Judicial Approval of VoluntaryRecognition of Minor Natural

Children

-o"untary recognition is an admission of the fact of paternity or maternity by thepresumed parent' e1pressed in the form prescribed under 3rt. $#@ of the "CC which providesthat recognition shall be made in the:

record of birtha willa statement before a court of recordor in any authentic writing.

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(ffect of Reappearance-o"untary recognition defined.!en /udicia" approva" neces sary


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Audicial approval is necessary when the recognition of a minor does not take place in arecord of birth or in a will. ( CC !81)

This re8uirement of -udicial approval imposed by 3rt. $@ is clearly intended for thebenefit of the minor. The lack of -udicial approval cannot impede the effectivity of theacknowledgment made to his pre-udice. The lack or insufficiency of such approval is not a defectavailable to the recogni0ing parent but one which the minor may raise or waive. ( apusa& Chuav. CA, 183 SCRA 16')

Please note the following provisions which' although repealed by the Family Code' maystill be applicable for lack of substitute provisions. %t is still not settled which provisions remainapplicable.

Voluntary recognition

3 natural child may be recogni0ed by the father and the mother -ointly' or by only one of them. ( CC !$6) %n case the recognition is made by only one of the parents' it shall bepresumed that the child is natural' if the parent recogni0ing it had legal capacity to contractmarriage at the time of conception. ( CC !$$)

3 minor who may not contract marriage without parental consent ( @/$ ! cannotacknowledge a natural child unless:

parent;guardian approves the acknowledgment

recognition is made in a %BB ( CC !$9)

hen the father or the mother makes the recognition separately:

+e;shall not reveal the name of the person with whom he;she has the child4

"either shall he;she state any circumstance whereby the other parent may beidentified. ( CC !8')

The action for the recognition of natural children may be brought ="B during the lifetimeof the presumed parents' 2DC2PT:

( ! %f the father or mother died during the minority of the child' in whichcase the latter may file an action within 5 years from the attainment of hisma-ority age.

($! %f after the death of the father;mother a document should appear of which nothing had been heard and in which either; both parentsrecogni0e the child. %n this case' the action must be commenced within 5years from the finding of the document. ( CC !85)

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Civi" Code ru"es on recognition


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$nvoluntary recognition

The father is obliged to recogni0e the child as his natural child in the following cases:

( ! %n cases of rape;abduction;seduction' when the period of the offensecoincides more or less with that of conception4

($! hen the child is in continuous possession of the status of a child of the alleged father by the direct acts of the latter or direct acts of hisfamily4

()! hen the child was conceived during the time when the mother cohabited with the supposed father.

(5! hen the child has in his favor any evidence or proof the defendant

is his father. ( CC !83)

The mother is obliged to recogni0e her natural child:

( ! %n any of the cases in the preceding article' as between the child Ethe mother4 and

($! hen the birth and the identity of the child are clearly proven. ( CC01) !8+)

The recognition made in favor of a child who either does not possess all the conditions in 3rt. $7?' or in which the re8uirements of the law have not been fulfilled may be impugned bythose who are pre-udiced by such recognition. ( CC !86)

(roof of filiation of illegitimate children

%llegitimate children may establish their illegitimate filiation in the same way and on thesame evidence as legitimate children' namely:

( ! The record of birth appearing in the civil register or a final -udgment4 or

($! 3n admission of illegitimate filiation in a public document or a privatehandwritten instrument and signed by the parent concerned.

%n the absence of the foregoing evidence' the illegitimate filiation shall be proved by:

( ! The open and continuous possession of the status of an illegitimate child' or

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Pertinent provisions of Fa$i"y Code


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($! 3ny other means allowed by the 9ules of Court and special laws. ( C 1$!)

Action to claim illegitimacy %f the action is based on the record of birth or the admission of illegitimate filiation' the

action may be brought during the child s lifetime. %f the child died during minority or in a state of insanity' the child s heirs shall have a period of 6 years within which to institute the action. ( C 1$5 vis--vis 1$3)

+owever' if the action is based on open E continuous possession of the status of anillegitimate child or on other means' the action may be brought during the lifetime of the allegedparent. ( C 1$5)

Venue

Petition shall be filed with the Family Court of the province or city in which the childresides. The Family Court has e1clusive original -urisdiction over all petitions for acknowledgment. ( Sec. 5e, R.A. 8369)

"ho may file

The child or his parents may file a petition for -udicial approval of voluntary recognition.

Contents of petition

( ! -urisdictional facts4

($! names and residences of the parents who acknowledged the child' or of either of them' and their compulsory heirs' and the person;s with whom thechild lives4

()! the fact that the recognition made by the parent;s took place in a statementbefore a court of record or in an authentic writing' copy of the statement or writing being attached to the petition.

(rocedure

( ! Court shall fi1 the date and place for the hearing of the petition which date shall notbe more than 7 months after the entry of the order.

($! 3 copy of the order to be served personally or by mail upon the interested partiesand published once a week for ) consecutive weeks' in a newspaper of generalcirculation in the province.

()! %nterested party within 6 days from service or from the last date of publication of the order of hearing must file his opposition to the petition.

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Procedure


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(5! %f from the evidence it appears that recognition of the child was willingly andvoluntarily made by the parent;s and that recognition is for the best interest of thechild' -udgment granting -udicial approval of the recognition shall be rendered.

(6! Copy of the -udgment shall be served upon the civil registrar who shall enter it inthe register.

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Part % .

Ot!er specia"proceedings

Change of name Correction of entries in civil

registry +abeas corpus Trustees +ospitali0ation of insane

persons

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Change of NameandCorrection of Entries in Civil Registry

The rules on change of name and correction of entries in the Civil 9egistry aregoverned by 3rt. 5/5 )' 9ule &) and 9ule &@ of the 9ules of Court' and 9epublic 3ct "o.?&5@.

CI-I0 R(1ISTRY

The Civil 9egister refers to the books and all documents relating thereto wherein allacts' events and -udicial decrees concerning the civil status of persons are recorded. ( Art. +'$,

e: Civil C%(e)

9epublic 3ct "o. ?&5@ defines the Civil 9egister as the various registry books andrelated certificates and documents kept in the archives of the local civil registry offices'Philippines Consulates and of the =ffice of the Civil 9egister *eneral. ( Sec. ! 0+), R.A. 9'+8)

C+NC(00+TION OR CORR(CTION OF (NTRI(SIN T%( CI-I0 R(1ISTRY

(Rule 1'8, Sec. !" Art. +'8, e: Civil C%(e)

( ! births4($! marriages4()! deaths4(5! legal separations4(6! -udgments of annulments of marriage4(7! -udgments declaring marriages void from the beginning4(#! legitimations4(@! adoptions4(?! acknowledgments of natural children4( &!naturali0ation4( !election' loss or recovery of citi0enship4( $!civil interdiction4( )!-udicial determination of filiation4( 5!voluntary emancipation of a minor4 and( 6!changes of name.

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Civi" Register& defined(ntries su#/ect to cance""ation or correction


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There are two ($! types of errors in Civil 9egistry entries:

( ! C"erica" or typograp!ica" errors

Clerical or typographical errors are mistakes committed in the performance of clerical work in writing' copying' transcribing or typing an entry in the civil register that isharmless and innocuous' visible to the eyes or obvious to the understanding' and can becorrected or changed only by reference to other e1isting record or records. ( Sec. ! 03),R.A. 9'+8)

($! Su#stantia" errors

,ubstantial errors are errors whose correction affect civil status' nationality'citi0enship' or any other matter considered substantial.

%n the ?@# case of Republic v. 2autista 0!6 ;ct%ber 198$), it was held that proceedingsunder 9ule &@ and 3rt. 5 $ of the Civil Code may either be summary or adversary in nature. %f the correction sought to be made in the civil register is clerical' then the procedure is summary. %f the recitation affects the civil status' nationality' citi0enship' or any matter considered substantial'the procedure adopted is adversary.

=riginally' entries in the Civil 9egistry could not be changed or corrected without -udicialorder. ( Art. +1!, e: Civil C%(e)

+owever' 9epublic 3ct "o. ?&5@' which was passed into law on $$ Garch $&& ' nowallows clerical or typographical errors to be corrected administratively without the need for a

-udicial order.

%n view of the changes introduced by 9.3. ?&5@' it would now appear that the summaryprocedure in 9ule &@ has been taken over by the Civil 9egistrar' and thus 9ule &@ now appliesonly to adversarial proceedings.

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Types of errors in entries2inds of proceedings under Ru"e 345Ru"es in cance""ation or correction of entries


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Appropriate adversary proceeding3 defined

3n appropriate adversary proceeding has been defined as a contested proceedinghaving opposing parties' as distinguished from an e< parte application. %t is one wherethe aggrieved party has given learn warning to and afforded the other party anopportunity to contest and demolish the former s case. ( Republic v. C # % a/a, Ma7 31, 1988)

(rocedure

637 FI0IN1 OF P(TITION

"ho may file. 3ny person interested in any act' event' order or decree concerningthe civil status of persons which has been recorded in the civil register may file averified petition for cancellation or correction of entry in the civil registry.

"here filed. The verified petition shall be filed with the 9TC of the province wherethe corresponding civil registry is located.

(arties to the petition. The civil registrar and all persons who have or claim anyinterest which would be affected thereby shall be made parties to the proceeding.

687 NOTIC( +ND PU'0IC+TION

>pon the filing of the petition' the court shall fi1 the time and place for the hearingof the petition and cause reasonable notice thereof to be given to the persons named

in the petition by way of an order.

The court shall also cause the order to be published once a week for )consecutive weeks in a newspaper of general circulation in the province.

697 OPPOSITION TO P(TITION

The civil registrar and any person having or claiming an interest under the entrywhose cancellation or correction is sought may file his;her opposition to the petitionwithin 6 days from notice of the petition' or from the last date of publication of suchnotice.

6:7 %(+RIN1 +ND JUD1M(NT

The court shall proceed to hear the petition at the date and time stated in itsorder.


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-udgment shall be served upon the civil registrar concerned' who shall then annotatethe same in his record.

(rocedure

.%O M+Y FI0(

3ny person having direct and personal interest in the correction of a clerical or typographical error in an entry may file' in person' a verified petition for correction of entry.

.%(R( FI0(D

4eneral rule. The verified petition is filed with the local civil registry office of the city or municipality where the record being sought to be changed is kept.

"hen petitioner has migrated to another place in the country and it is not practical for such party to appear in person before the local civil registrar. The petitionmay be filed with the local civil registrar of the place where the interested party is presentlyresiding or domiciled. The $ local civil registrars concerned will then communicate tofacilitate the processing of the petition. The petition should likewise be filed in person.

"hen (hilippine nationals are residing or domiciled in foreign countries. Thepetition may be filed with the nearest Philippine consulates. The petition should likewise befiled in person.

PROC(DUR(

637 Petition it! supporting docu$ents

The petition shall be in the form of a sworn affidavit which shall set forth factsnecessary to establish the merits of the petition and shall show affirmatively that thepetitioner is competent to testify to the matters stated. The petitioner shall state theparticular erroneous entry or entries which are sought to be corrected.

The petition' which shall be filed in ) copies' should be supported with thefollowing documents:

(a! 3 certified true machine copy of the certificate or of the page or of

the registry book containing the entry sought to be changed4(b! 3t least $ public or private documents showing the correct entry or

entries upon which the correction or change shall be based4

(c! =ther documents which the petitioner or the city or municipal civilregistrar or the consul/general may consider relevant and necessaryfor the approval of the petition.

687 Posting

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+d$inistrative proceedings under R;+;


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The city or municipal civil registrar or consul/general to whom the petition shallpost the petition in a conspicuous place provided for the purpose for & consecutivedays after he finds the petition and its supporting documents sufficient in form andsubstance.

697 +ction on petition

The city or municipal civil registrar or the consul/general shall act on the petitionand shall render a decision not later than 6 working days after the completion of theposting re8uirement. +e shall transmit a copy of his decision together with therecords of the proceedings to the =ffice of the Civil 9egistrar *eneral within 6working days from the date of the decision.

6:7 Revie #y Civi" Registrar 1enera"

ithin & working days from receipt of the decision granting a petition' the civilregistrar general shall e1ercise the power to impugn the decision of the city or municipal civil registrar or consul/general by way of an ob-ection based on thefollowing grounds:

(a! The error is not clerical or typographical4

(b! The correction of an entry or entries in the civil register is substantialor controversial as it affects the civil status of a person.

%f the civil registrar general fails to e1ercise his power to impugn the decision of the city or municipal registrar or of the consul/general within the prescribed period'the decision becomes final and e1ecutory.

Remedies of petitioner upon denial of petition

%f the petition for change of name is denied by the city or municipal civil registrar or consul/general' the petitioner may either appeal the decision to the civil/registrar general' or filethe appropriate petition with the proper court.

%f the favorable decision of the city or municipal civil registrar or consul/general isimpugned by the civil registrar general' the petitioner may either file a motion for reconsiderationor file the appropriate petition with the proper court.

P(TITION FOR C%+N1( OF N+M(

-efinition

3 name is a word or combination by which a person is known or identified.

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Na$es


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Characteristics of a name

3 name is said to have the following characteristics:

(a! %t is absolute' intended to protect the individual from being confused withothers4

(b! %t is obligatory in certain respects' for nobody can be without a name4

(c! %t is fi1ed' unchangeable' or immutable' at least at the start' and may bechanged only for good cause and by -udicial proceedings4

(d! %t is outside the commerce of man' inalienable and intransmissible by acti&ter viv%s or %rtis causa 4

(e! %t is imprescriptible. ( Republic v. CA a&( =%&/, !'9 SCRA 189)

Rule on use of names

>nder "CC )@&' no person is allowed to use different names and surnames. The legale1ception however is the employment of pen names and stage names' which is allowed as longas it is done in good faith and ) rd persons are not in-ured thereby. ( CC 3$9)

Rules on Surnames

Children

Begitimate children: Father s surname ( C 1$+)

Begitimated children: Father s surname ( C 1$9)

3dopted children: 3dopter s surname ( CC 3+1 0+))

The use of the adopter s surname pertains to the use of the latter s originalfamily surname and not to that ac8uired through marriage. %n a case wherea wife adopted a child without the concurrence of her husband' the adoptedmay only use the wife s maiden surname and not her married surname.Confusion may result if the adopted child were allowed to use the surnameof the spouse who did not -oin in the adoption' as the public may be misledinto believing that the child was also adopted by the husband. ( %h&st%& v.Republic, $ hil. 1'+')

%llegitimate children: Gother s surname ( C 1$6)

Children conceived beforeannulment of voidablemarriage: Father s surname ( CC 369)

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Women

M+RRI(D .OM+N ( CC 3$')

3 married woman may use any of the following names:

(a! maiden first name and surname H husbands surname4 or (b! maiden first name and husbands surname4 or (c! husbands full name but prefi1ing a word indicated that she is his wife' such

as IGrs.J

+NNU0M(NT OF M+RRI+1( ( CC 3$1)

%f the wife is the guilty party: ife shall resume her maiden name andsurname.

%f wife is the innocent spouse: ,he may resume her maiden name andsurname' but may choose to continue employingher former husbands surname4 unless:

(a! court decrees otherwise4(b! she or the former husband is married

again to another person

0(1+0 S(P+R+TION ( CC 3$!)

ife shall use surname and name used before legal separation. 3 change of nameunder 9ule &) cannot be -ustified by the fact of legal separation. ( >aperal v. Republic, ;ct%ber 3', 196!)

.IDO. ( CC 3$3)

idow may use the deceased husbands surname as though living.

DI-ORC(D

There is no provision under the Civil Code on the use of surname by a divorced wife."CC )# is not applicable to such a case since the article speaks of annulment' which involves avoidable marriage' and not absolute divorc)e which involves a severance of valid marriage ties.

%n the case of %olentino v. CA 5 -avid (16! SCRA 66), the ,upreme Court dismissed apetition for in-unction to restrain ,enator Tolentino s previous wife from using the Tolentinosurname in spite of their absolute divorce in ?5). The court' 8uoting ,enator Tolentino' statedthat the wife cannot claim an e1clusive right to use the husband s surname. ,he cannot beprevented from using it4 but neither can she restrain others from using it. ,ince there was nousurpation of petitioner s name and surname ( petiti%&er :as Se&at%r %le&ti&%?s 3 r( , a&( curre&t,:i e) and thus no impingement on her rights' the divorced Grs. Tolentino was allowed to continueusing the Tolentino surname.

The onerous re8uirements of 9ule &) should not be applied to -udicial confirmation of the right of a woman divorced under S!ari,a 0a to resume her maiden name and surname. %nthe absence of a specific rule or provision governing such a proceeding' where sufficient factshave been alleged supported by competent proof as anne1es' which appear to be satisfactory tothe Court' such petition for confirmation of change of civil status and;or to resume the maiden

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name must given due course and summarily granted as in fact it is a right conferred by law.(@asi& v. %&. u(/e, Shari?a B.C., !+1 SCRA 6'6)

Ascendants and Descendants ( CC 3$+-3$5)

here there is identity of names and surnames' younger person shall be obliged to usean additional name to avoid confusion.

IAuniorJ can only be used by a son.

For grandsons and other direct male descendants' there are $ options:

(a! 3dd a middle name or the mothers surname4 or

(b! 3dd 9oman numerals %%' %%%' and so on.

Elements

( ! There is actual use of another s name by the defendant4

($! The use is unauthori0ed4 and

()! The use of another s name is to designated personality or identify a person.

Actions arising from use of names and surnames

01) 3ction for damages and other relief arising out of usurpation of name or surname( CC 3$$)

0!) 3ction for damages and other relief arising out of unauthori0ed or unlawful use of another s surname ( CC 3$8)

03) Criminal prosecution under C3 5$ for illegal use of alias

0+) Criminal prosecution under the 9evised Penal Code

(urpose

The purpose of the statutory proceeding authori0ing a change of name is simply tohave' whenever possible' a record of the change' and in keeping with the ob-ect of the statute' a

25

Usurpation of a na$e Petition for c!ange of na$e


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court to which the application is made should normally make its decree recording such change.

)ature of proceedings 3 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.For this purpose' the only name that may be changed is the true or official name recorded in thecivil register.

Formerly' the rule was that a change in name or surname could only be effected by wayof -udicial action under either 9ule &) or 9ule &@. +owever' with the enactment of 9epublic 3ct?&5@' it is now possible to have one s name or nickname changed without need of -udicialproceedings' via a petition filed with the civil registrar.

3 petition for change of name cannot be granted by means of any other proceeding. Toconsider it as a mere incident or an offshoot of another special proceeding would be to denigrateits role and significance as the appropriate remedy available under our remedial law system."either cannot it be properly -oined with a petition for adoption. ( Republic v. er&a&(e*, !53SCRA 5'9)

Change of name is a proceeding in rem and as such' strict compliance with all -urisdictional re8uirements' particularly on publication' is essential in order to vest the court with -urisdiction.

4rounds for change of name

( ! Proper and compelling reasons such as

0a) hen the name is ridiculous' dishonorable or e1tremely difficult to write or pronounce4

0b) hen the change results as a legal conse8uence' as in legitimation4

0c) hen the change will avoid confusion a: >i%&/ v. Republic, 1 SCRA6$$D"

0() +aving continuously used and been known since childhood by a Filipinoname' unaware of her alien parentage , A&/ v. RepublicD"

0e) 3 sincere desire to adopt a Filipino name to erase signs of former alienage'all in good faith and without pre-udicing anybody 7 v. Republic K4

0 ) hen the surname causes embarrassment and there is no showing that thedesired change of name was for a fraudulent purpose or that the change of name would pre-udice public interest . ;shita v. Republic, 19 SCRA $''D

($! +e will be pre-udiced by the use of his true or official name.

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C!ange of na$e under Ru"e 349


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6urisdiction and Venue

3 petition for change of name shall be filed in the 9TC of the province in which thepetitioner resides.

(rocedure

637 P(TITION

Form: signed and verified by the person desiring his name changed or some other person in his behalf.

Contents:

(a! That the petitioner has been a b%&a i(e resident of the provincewhere the petition is filed for at least three years prior to the date of such filing4

(b! The cause for which the change of name is sought4

(c! The name asked for

erification of the petition for change of name is not a -urisdictional' but aformal re8uisite. %ts non/compliance does not necessarily render thepleading fatally defective. ( ;shita v. Republic, 19 SCRA $'')

3ll aliases of the applicant must be set forth in the title of the petition4otherwise' although the petition has been duly published' such defect wouldbe fatal even if said other aliases are contained in the body of the petition.( % Chiu 2e&/ v. Republic, Au/ust 18, 19$!)

Failure to indicate the surname asked for renders the petition defective' andany publication thereof invalid and ineffective. ( el % v. Republic, $3 SCRA!9)

687 PU'0IC+TION OF ORD(R OF %(+RIN1

%f the petition filed is found to be sufficient in form and substance' the courtshall fi1 a date and place for the hearing thereof by way of an order reciting thepurpose of the petition.

The Court shall direct that a copy of the order be published before the hearingat least once a week for ) successive weeks in some newspaper of generalcirculation published in the province' as the Court shall deem best.

Publication of the order is a -urisdictional re8uisite. To be valid and to confer -urisdiction on the court' such publication must give the correct information( / @a% Si%&/ v. Republic, March 31, 1966) and a defect in such publicationis fatal. ( Ma #&/ Cha% v. Republic, ul7 !8, 19$'" Republic v. u(/e % 2ra&ch ### % C # % Cebu, ;ct%ber 11, 198+)

The title of the published order should include ( ! the real name of the

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applicant4 ($! his aliases or other names ' if any4 and ()! name sought to beadopted. This is notwithstanding that the body of the petition;order includesall the information aforementioned. ( Republic v. aFa(a, +! SCRA +19)

697 %(+RIN1

The date set for the hearing shall not be within )& days prior to an electionnor within 5 months after the last publication of the notice.

3ny interested person may appear at the hearing and oppose the petition for change of name. The ,olicitor/*eneral or the proper provincial or city fiscal shallappear on behalf of the *overnment of the 9epublic.

6:7 JUD1M(NT

>pon satisfactory proof in open court on the date fi1ed in the order that suchorder has been published as directed and that the allegations of the petition aretrue' the court shall ad-udge that petitioner s name be changed in accordance withthe prayer of the petition if there appears to e1ist proper and reasonable cause for changing such name.

The civil registrar of the municipality or city where the court issuing the sameis situated shall be furnished with -udgments or orders rendered in connection withthis rule. The civil registrar shall forthwith enter the same in the civil register.

Ru"e 349 Ru"e 345

Change of name only 3ll cancellation or correction of entries

2ntry is correct but petitioner desires to changethe entry

There is a mistake in the entry which petitioner wants to correct

Civil registrar is not a party Civil registrar is an indispensable party. %f notmade a party' proceedings are null and void.9eason: +e is an interested party in protectingthe integrity of the public documents.

"hat may be changed

($! First name (which may consist of one or more names in addition to the middle andlast names!4

()! "ickname

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Co$parison of c!ange of na$e under Ru"e 349 and under Ru"e 345C!ange of na$e under R;+;


29/31

3 surname cannot be the sub-ect of a petition for change of name under 9.3. ?&5@.

4rounds for change

3 petition for change of first name or nickname may be allowed in any of the followingcases:

( ! The petitioner finds the first name or nickname to be ridiculous'tainted with dishonor or e1tremely difficult to write or pronounce4

($! The new first name or nickname has been habitually andcontinuously used by the petitioner and he has been publicly knownby the first name or nickname in the community4 or

()! The change will avoid confusion

%t must be noted that all petitions for change of first names or nicknames filed under 9.3.?&5@ may be availed of only once.

(rocedure

.%O M+Y FI0(

3ny person having direct and personal interest in the change of first name or nicknamein the civil register may file' in person' a verified petition for change of name.

.%(R( FI0(D

4eneral rule. The verified petition is filed with the local civil registry office of the city or municipality where the record being sought to be changed is kept.

"hen petitioner has migrated to another place in the country and it is not practical for such party to appear in person before the local civil registrar. The petitionmay be filed with the local civil registrar of the place where the interested party is presentlyresiding or domiciled. The $ local civil registrars concerned will then communicate tofacilitate the processing of the petition. The petition should likewise be filed in person.

"hen (hilippine nationals are residing or domiciled in foreign countries. Thepetition may be filed with the nearest Philippine consulates. The petition should likewise befiled in person.

PROC(DUR(

637 Petition it! supporting docu$ents

The petition shall be in the form of a sworn affidavit which shall set forth factsnecessary to establish the merits of the petition and shall show affirmatively that thepetitioner is competent to testify to the matters stated. The petitioner shall state thechange sought to be made.

The petition' which shall be filed in ) copies' should be supported with thefollowing documents:

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(d! 3 certified true machine copy of the certificate or of the page or of the registry book containing the entry sought to be changed4

(e! 3t least $ public or private documents showing the correct entry or entries upon which the change shall be based4

(f! Certification from the appropriate law enforcement agencies that hehas no pending case or no criminal record4

(g! =ther documents which the petitioner or the city or municipal civilregistrar or the consul/general may consider relevant and necessaryfor the approval of the petition.

687 Posting and pu#"ication

The petition shall be published at least once a week for $ consecutive weeks in anewspaper of general circulation.

The city or municipal civil registrar or consul/general to whom the petition shallpost the petition in a conspicuous place provided for the purpose for & consecutivedays after he finds the petition and its supporting documents sufficient in form andsubstance.

697 +ction on petition

The city or municipal civil registrar or the consul/general shall act on the petitionand shall render a decision not later than 6 working days after the completion of theposting and publication re8uirement. +e shall transmit a copy of his decisiontogether with the records of the proceedings to the =ffice of the Civil 9egistrar *eneral within 6 working days from the date of the decision.

6:7 Revie #y Civi" Registrar 1enera"

ithin & working days from receipt of the decision granting a petition' the civilregistrar general shall e1ercise the power to impugn the decision of the city or municipal civil registrar or consul/general by way of an ob-ection that the basis usedin changing the first name or nickname does not fall under any of the groundsenumerated in ,ec. 5' 9.3. ?&5@.

%f the civil registrar general fails to e1ercise his power to impugn the decision of the city or municipal registrar or of the consul/general within the prescribed period'the decision becomes final and e1ecutory.

Remedies of petitioner upon denial of petition

%f the petition for change of name is denied by the city or municipal civil registrar or consul/general' the petitioner may either appeal the decision to the civil/registrar general' or filethe appropriate petition with the proper court.

%f the favorable decision of the city or municipal civil registrar or consul/general isimpugned by the civil registrar general' the petitioner may either file a motion for reconsiderationor file the appropriate petition with the proper court.

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3 change of name does not by itself define' or effect a change in' ones e1isting relationsor in the right and duties flowing therefrom4 nor does it create new family rights and dutieswhere non before were e1isting. %t does not alter ones legal capacity' civil status' or citi0enship. hat is altered is only the name' which is distinguished from others and whichhe bears as the label of appellation for the convenience of the world at large in dealing withhim. ( @u v. Republic, !5 Ma7 1966)

[REPUBLIC ACT NO. 10172]

AN ACT FURTHER AUTHORIZING THE CITY OR MUNICIPALCIVIL REGISTRAR OR THE CONSUL GENERAL TOCORRECT CLERICAL OR TYPOGRAPHICAL ERRORS IN THE

AY AN MONTH IN THE ATE OF BIRTH OR SE! OF APERSON APPEARING IN THE CIVIL REGISTER "ITHOUTNEE OF A #U ICIAL OR ER$ AMEN ING FOR THISPURPOSE REPUBLIC ACT NUMBERE NINETY FORTY%EIGHT

(ffects of c!ange of na$e

specpro-custody of minors

Documents