specpro for 2nd exam (final)

8/10/2019 Specpro for 2nd Exam (Final)

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Guardianship

• The nature of guardianship is a trust relation of the most sacred character, in which

one person called a “guardian” acts for another called the “ward” whom the law

regards as incapable of managing his own aairs

• Intended to preserve the ward’s propert, as well as to render an assistance that theward ma personall re!uire"

1. Guardian

# person whom in law has entrusted the custod and control of the person or estate or both

of an infant, insane or other person incapable of managing his own aairs"

Ma’am: So the key word there is it is incapable of managing its own aairs so that is why

you need the guardian.

Kinds of Guardians

• #s to scopeo $eneral % over the person of the ward or over his properto &imited % over the propert onl

• #s to constitutiono $eneral guardiano &egal guardian % without 'udicial appointmento $uardian ad litem % appointed b the courts of 'ustice to prosecute or defend

a minor, insane or person declared to be incompetent, in an action in court"

Ma’am: guardian ad litem is in a way temporary because it relates to a certain

litigation.

Legal Guardians

• The father and the mother shall 'ointl e(ercise legal guardianship over the person

and propert of their minor without the necessit of a court appointment" In such

case, #")" *o" +-+./+0-2 shall be suppletor to the provisions of the 3amil code

on $uardianship"

Guardian Ad Litem

• 45cers of the court in a limited sense

• 45ce is to represent the interest of incompetent or the minor" 67lac8 v 9iedeman,

.0: "9" .d ::, 1;0<• =iscretionar on the court ta8ing into account

o The best interest of the incompetent or the minor 6tewart v Turner, :; 9

.d .0. 61;;><, 2oleson v 7ethan ;1 9 .d >??<o The promotion of 'ustice 6)c7err v Ivie, 10; "@" .d 1+?, 1;?><

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• *ew court shall have full 'urisdiction to continue the proceedings, without re!uiring

pament of additional court fees" 6ec Aule ;.<• *o similar provision under #)-+-+.-+0-2

%. Who a& 'etition

• Incompetento #n relative, oro 3riend, oro 4ther person on behalf of incompetent without parents or lawful guardiano =irector of Eealth in favor of an insane person who should be hospitaliFed or

in favor of an isolated leper 6ec 1 Aule ;<

• )inoro #n relative oro 4ther person on behalf of a minor oro )inor himself who is 1: ears of age or over oro

The ecretar of ocial 9elfare and =evelopment and the ecretar of Eealthin case of an insane minor who needs to be hospitaliFed 6ec . #) +-+.-+0

2<

• *on-Aesident 9ardo #n relatives, friend or anone interested in the estate of a person liable to be

put under guardianship ma Cle a petition for guardianship over the propert

of such person 6ec ? Aule ;<

o *otice to be published in a newspaper of general circulation in the province

where propert is located"

Ma’am: So take note for minor and incompentent there is no re$uirement of publication, the only publication re$uirement in the guardianship proceeding is

when the ward is a non%resident.

• )arried IncompetentJIncapacitated Persono #rticle 1.: 3amil 2ode

xxxx

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do

not include disposition or encumbrance without authority of thecourt or the written consent of the other spouse. xxx

Ma’am: So going back to the $uestion last time regarding absence, or

nakulong or somebody hiding from the law&fugitive because there is a pending

case against him and then later on was convicted.

'his is the asnwer, what happens if a person is convicted of a crime( )ba may

civil interdiction( "bviously, sino yung incompentent( 'hose who are under civil

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interdiction . ibig sabihin kung sya ay married you use *rticle +- of /, the other

spouse will take care of the administration of the conugal or absolute cummunity

property, the only restriction is on sale or encumbrance of conugal or absolute

community property in which case you need to go to court for authority.

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" uch rules donot appl to cases where the non-consenting spouse is incapacitated or incompetent

to give consent" 6G v 'ardeleFa, $"A" *o" 1+;00>" *ovember .;, .+++<"

Ma’am: in this case this was a comatose married person, and there was a need to

dispose of the property, and the S/ held it should be in the proper guardianship

proceeding, you do not use *rt +- of /.

(. Grounds for 'etition

• )inors 6ec : #)-+-+.-+0-2< 9hen ou petition for minorsK 9hen there isLo =eath, continued absence or incapacit of parentso uspension, deprivation or termination of parental authorito Aemarriage of surviving parent, if the latter be found unsuitable to e(ercise

parental authorito 7est interests of the child so re!uires

• *one provided for incompetents under the Aules

). *uali+cations of Guardians 6are onl found under special rules on guardianship over

minors, there are no !ualiCcation prescribed over guardianship on incompetents<

• 3or )inors 6ec 0 #)-+-+.-+0-2<o )oral character

o Phsical mental and pschological conditiono 3inancial tatuso Aelationship of trust with the minoro #vailabilit to e(ercise powers and duties of a guardian for the full period o the

guardianshipo &ac8 of conMict of interest with the minoro #bilit to manage the propert of the minor

• *o similar provision under the Aules of 2ourt

Who a& be Appointed Guardian

• 3or )inors 6ec ? #)-+-+.-+0-2<o 4rder of preferenceL

urviving grandparent 4ldest brother or sister over .1 ears old, unless unCt or dis!ualiCed #ctual custodian of minor over .1 ears old, unless unCt or dis!ualiCed #n other person who would serve the best interest of the minor

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Ma’am: So take note in the order of preference you dont see the parents here

precisely because parents are already considered as de facto or the legal

guardians of their children without need of court authority.

• *o similar provision under the Aules of 2ourt

• )a non-residents be appointed guardiansKo *o" Nancil v 7elmes, $"A" *o" 1..., Bune 1;, .++1o 2ourts should not appoint persons as guardians who are not within the

'urisdiction of our courts for the will Cnd it di5cult to protect the wards

Ma’am: because once appointed guardians they are deemed to be o0cers of the

court so if they are not within the urisdiction of the court then that would defeat

the rule on guardianship.

,. !ontents of 'etition

• )inors

o Burisdictional factso *ame, age, and residence of prospective ward"o $round rendering the appointment, necessar, or conveniento =eath of minor’s parents or termination, deprivation or suspension of parental

authorito Aemarriage of the minor’s surviving parento *ames, ages and residences of relative within the : th civil degree of minor,

and of persons having him in their care and custodo Probable value, character and location of the propert of the minor, ando *ame, age and residence of the person for whom letters of guardianship are

praed 6ec > #")" *o" +-+.-+0 2<

•

Incompetentso Burisdictional factso Incompetenc rendering the appointment necessar or inconveniento Probable value and character of his estateo *ames, ages and residences of incompetent’s relatives, and of persons having

him in their careo *ame of person for whom letters of guardianship are praed 6ec . Aule ;<

-. orm of 'etition

Petition involving minors is re!uired to be veriCed and accompanied b certiCcation against

non-forum shopping" Eowever, no defect in the petition or veriCcation shall render void the

issuance of letters of guardianship" 6ec > #)-+-+.-+0-2, ec . Aule ; in relation to ec 0

Aule ><

!ase Stud& /eport 6under special rules the court will re!uire case stud of the minor<

• )inors 6ec ; #)-+-+.-+0-2<

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o 2ourt shall re!uire the social wor8er to conduct case stud of the minor and

all the prospective guardianso ocial wor8er shall submit his report and recommendation to the court for its

guidance before the scheduled hearingo ocial wor8er ma intervene on behalf of the minor if he Cnds that the petition

should be denied• )a’amL *o similar provision under the Aules of 2ourt for guardianship of

incompetents, but i have encounter some cases the 2 said even guardianship over

incompetents there was referral of the case to the social wor8er or case stud"

0. otice of earing 6ma’amL after petition, then there would be notice of hearing to be

issued b the court<

• *otice of date and place of hearing to be given to all persons named in the petition

residing in the province, and the minor himself if over 1: or incompetent 6ec D #)-

+-+.-+0-2, ec Aule ;<

• 2reditors not entitled to notice 6#lmari v Pabale, $"A" *o" 101.:, #pril +, .++D<

• Incompetent % publication not re!uired

• )inor % publication not re!uired

• *on-resident % notice of hearing shall be given to the minor or incompetent b

publication or an other means as the court ma deem proper 6ec 1. #)-+-+.-+0-

2, ec ? Aule ;<

13.4pposition to 'etition

• Eow made %in writing 6ec 1+ #)-+-+.-+0-2, ec : Aule ;<

• $roundso )a'orit of alleged minoro 2ompetenc of alleged incompetent oro Gnsuitabilit of the persons for whom letters are praed

• 9ho ma oppose % an interested person 6ec 1+#)-+-+.-+0-2, ec : Aule ;<• Praers-

o Petition be denied oro &etters of guardianship be issued to himself or to an person named in the

opposition

11.earing

• Purposeo =etermine minorit or incompetenc of wardo =etermine who is most !ualiCed to be appointed as his guardian" 6#lmari v

Pabale, supra<

• 9ho must be presento Incompetent if able to attend 6ec 0 Aule ;<o )inor 6ec 11 #)-+-+.-+0-2<

• 9hat to prove 6id<o Ae!uired notice has been giveno Parties respective allegations

• )a be closed to the public and records shall not be released without court approval

6ec 11 #)-+-+.-+0-2 onl<• Proof re!uired 6Incompetent<

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o 2lear, positive and deCnit evidence 64ropesa v 4ropesa, supra citing Nda de

7aluut v &uciano, 1?: Phil" 00, >+ 61;>?<, further citing anco v 23I of )anila,

.; Phil" 1D, 1;+ 61;10<<

lo5chart

Ser6ice of 7udgment

• 2ivil Aegistrar of the place where the minor or incompetent resides or where the

propert is situated shall be served with cop of the 'udgment 6ec 1 #) *o" -+-+.-

+0-2, ec D Aule ;<• In case of minors, 'udgment also served on the Aegister of =eeds of the province or

cit whre the propert or an part thereof is situated and A4= shall annotate the

same in the corresponding title 6ec 1 #) *o" +-+.-+0-2<• 7oth &2A and A4= shall enter the Cnal and e(ecutor 'udgment in the appropriate

boo8s in their o5ces 6ec .? #) *o" +-+.-+0-2<• 7oth o5ces shall report to the 2ourt their compliance within 10 das from receipt of

the order 6ec 11 #) *o" +-+.-+0-2<

12.8ond of Guardians

• #mount to be determined b the court

• To be posted as re!uirement for the instance of letters of guardianship and before an

appointed guardian enters upon the e(ecution of his trust 6ec 1 Aule ;:<• hall be Cled in the 3amil 2ourt and an breach of conditions thereof ma be

prosecuted in the same proceeding for the beneCt of the ward or an other person

legall interested in the propert 6ec 10 #) *o" +-+.-+0-2<

8ond of 'arents as Legal Guardians 9pic (1:

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• )ar8et value of propert or annual income of child e(ceeds P0+,+++

• 2ourt to C( amount of bond but not less than 1+O of the value of such propert or

income• Purpose of bond % to guarantee the performance of the obligations for general

guardians• NeriCed petition for approval of bond to be Cle in the 3amil 2ourt of place where

child resides or, if a non-resident, where propert or an part thereof is situated" The

petition shall be doc8eted as a summar special proceeding in which all incidents and

issues regarding the performance of the obligations of a general guardian shall be

heard and resolved" 6ec 1? #")" *o" +-+.-+0-2<• upersedes 6ec " D Aule ;<

Ma’am: So if under the rules you have summary rules of procedure dito naman merong

summary special proceeding and one instance of that is for the approval of the bond of

the legal guardian. !f is no prior special proceeding for the appointment of the legal

guardian because as we said parang de facto guardian and parent however the law

re$uires them to give a bond if the annual income or the actual market value of the

property of the child e1ceeds 2 34,444 and the petition that you should le in court would be the summary special proceedings by ling a veried petition for approval of

the bond.

So for instance nagkaroon ng plane crash tapos may mga bata na beneciary kasi

parents nila nasali sa crash so they were awarded substantial amount of money so the

remaining spouse was re$uired by the insurance company to show proof of the posting

of guardian’s bond, kailangan mgle sila ng petition sa court for the approval of the

bond, kasi obviously, the proceeds of the insurance e1ceeded 34k.

Art. 22(; amil& !ode

#rt" ..0" The father and the mother shall, 'ointl e(ercise legal guardianship over the

propert of their unemancipated common child without the necessit of a court

appointment" In case of disagreement, the father’s decision shall prevail, unless there is a

'udicial order to the contrar

9here the mar8et value of the propert or the annual income of the child e(ceeds

P0+,+++"++, the parent concerned shall be re!uired to furnish a bond in such amount as the

court ma determine, but not less than ten per centum 61+O< of the value of the propert or

annual income, to guarantee the performance of the obligations prescribed for general

guardians"

# veriCed petition for approval of the bond shall be Cled in the proper court of the place

where the child resides, or, if the child resides in a foreign countr, in the proper court of theplace where the propert or an part thereof is situated

The petition shall be doc8eted as a summar special proceeding in which all incidents and

issues regarding the performance of the obligations referred to in the second paragraph of

this article shall be heard and resolved"

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The ordinar rules on guardianship shall be merel suppletor e(cept when the child is

under substitute parental authorit, or the guardian is a stranger, or a parent has remarried,

in which case the ordinar rules on guardianship shall appl"

)a’amL o the special rule was lifted from #rt" ..0 of the 32"

8ond of Guardians; !onditions

• To ma8e a return to the court, within 1 month, a true and complete inventor of all

the estate, real and personal, of his ward which shall come to his possession or

8nowledge or to the possession or 8nowledge of an other person for him,• To faithfull e(ecute the duties of his trust, to manage and dispose of the estate

according to these rules for the best interest of the ward, and to provide for the

proper care, custod and education of the ward"

• To render a true and 'ust account of all the estate of the ward I his hands, and of all

the management and disposition of the same, at the time designated b these rules

and such other times as the court directs and at the e(piration of his trust to settle

his accounts with the court and deliver and pa over all the estate, eects and

mones remaining in his hands, or due from him on such settlement to the personlawfull entitled thereto

• To perform all orders of the court b him to be performed"

)a’amL these are the same conditions imposed on administrators or e(ecutors, e(cept

that there is no provision here on the settlement of debts because we dont need to settle

debts in guardianship"

e5 8ond /e<uired and 4ld Securities =ischarged

• 9henever deemed necessar, the 2ourt ma re!uire a new bond and ma discharge

the sureties on the old bond for further liabilit, after due notice to interested

persons, when no in'ur can result therefrom to those interested in the estate" 6ec .Aule ;:<

Where to ile 8onds

• 7ond to be Cled in the 45ce of the 2ler8 of 2ourt 6ec Aule ;:<, and in case of

minors in the 3amil 2ourt 6ec 10 #")" *o" +-+.-+0-2<• In case of breach of condition of the bond, ma be proceeded against in the same or

separate proceeding for the use and beneCt of the ward, or an other person legall

interested in the estate"

1".'etition for Lea6e to Sell or >ncumber >state

$rounds

• Income of estate is insu5cient to maintain the ward and his famil, or educate a

minor ward• #ppears that it is for the beneCt of the ward" 6ec 1 Aule ;0 ec 1; #")" *o" +-+.-

+0-2<

=oes this appl& under Art. 12%; amil& !ode?

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G v BardeleFa, supra,

@ven assuming that the rules of summar 'udicial proceedings under the 3amil 2ode

ma appl to the wife’s administration of the con'ugal propert, the law provides that the

wife who assumes sole powers of administration has the same powers and duties as a

guardian under the Aules of 2ourt 6#rt" ?1, 32<

=oes this appl& under Art. 12%; amil& !ode?

G v BardeleFa, supra"

2onse!uentl, a spouse who desires to sell real propert as such administrator of the

con'ugal propert must observe the procedure for the sale of the ward’s estate re!uired of

'udicial guardians under Aule ;0, 1;?: Aevised Aules of 2ourt, not the summar 'udicial

proceedings under the 3amil 2ode"

• Incompetent % sell and encumber real propert or some part thereof re!uires 'udicial

approval" $uardian is clothed with power to sell personal propert of the ward"•

)inors % sell and encumber real and personal propert or an part thereof re!uires 'udicial approval

/e<uirements

• NeriCed petition or motion

• *otice to be given to ne(t of 8in and

• Eearing to show cause wh petition should not be granted"

@& 6 7ardelea

In the case at bar, the trial court did not compl with the procedure under the Aevised Aules

of 2ourt" Indeed, the trial court did not even observe the re!uirements of the summar

'udicial proceedings under the 3amil 2ode" Thus, the trial court did not serve notice of the

petition to the incapacitated spouse it did not re!uire him to show cause wh the petition

should not be granted"

EeldL There was denial of due process

otice

• 2ontentso Petition to sell ward’s real estate will be presented to a named court, at a

named place, on a named date, ando #ll persons interested ma, appear and show cause, if the have an, wh

such petition should not be granted" 6ec . Aule ;0<

9ho are the *e(t of in

This pertains to those relatives who are entitled to share in the estate of the ward

under the &aw of Intestate uccession including those who inherit per stirpes or b right of

representation"

*otice to ne(t of 8in and interested person is 'urisdictional"

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earing

• #t the time and place designated in order to show cause,

• 2ourt shall hear proofs and allegations of petitioner and ne(t of 8in and other persons

interested and witnesses• 2ourt shall grant or refuse praer of petition 6ec Aule ;0<

=iagram

Sho5 !ause

4rder

• 9hen

issuedo

o

o

o

o

o

o

o

o

o

o

If court Cnds that sale J encumbrance is necessar or beneCcial to the ward 6ec.+ #")" *o" +-+.-+0-2<o If it seems probable that the sale J encumbrance is necessar or would be

beneCcial to the ward 6ec . Aule ;0<• Ae!uires ne(t of 8in or persons interested in the propert to appear at a designated

time and place and to show cause wh the petition should not be granted 6ec .+

#")" *o" +-+.-+0-2<

Lindain 6 !A 9G/ o. 0("3( 91002::

ale of ward’s realt b the guardian without authorit from the court is void" Gnder the law,

a parent acting merel as legal administrator of the propert of his J her children, does not

have the power to dispose or alienate the propert of said minor without 'udicial approval"

1%.General 'o5ers and =uties of Guardians 9 /ule 0); /ules of !ourt:

'o5ers of Guardians

2are and custod of his ward’s person and management of estate"

)anagement of estate for non-resident wards" 6ec 1 Aule ;? ec 1> #")" *o" +-+.-+0-2<

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'o5ers of Guardians

2aniFa v 2#, $A" *o" 11+:.> 3ebruar .:, 1;;>

• Is a general guardian authoriFed to Cle action for desahucio involving the estate of

the incompeten

o Qes" If the &etters of $uardianship states guardian over the person andproperties of the incompetent with full authorit to ta8e possession of the

propert of said incompetent in an province or provinces in which it ma be

situated and perform all other acts necessar for the management of her

properties"""

=uties of Guardians

• Pa ward’s 'ust debts using personal estate or income of his real estate, if su5cient,

if not, then using real estate upon obtaining an order for the sale or encumbrance

thereof 6ec . Aule ;?, ec 1> #")" *o" +-+.-+0-2<

• ettle all accounts of ward, demand, sue for and receive all debts due him with courtapproval, compound for debts and discharge debtor upon receipt of fair and 'ust

dividend of estate and eects appear for and represent ward in all actions Jspecial

proceedings when no guardian ad litem is appointed 6ec 1 Aule ;?m ec 1>7 #")"

*o" +-+.-+0-2<• )anage ward’s estate frugall and without waste for the suitable maintenance of the

ward or his famil, if insu5cient for that purpose, the guardian ma sell or encumber

real estate with court authorit, and appl the proceeds 6 ec : Aule ;?, ec 1>2 #")"

*o" +-+.-+0-2<

• 9ith court authorit after notice to relatives of ward and hearing and a careful

investigation as to the necessit and propriet of proposed action, 'oin in an assent to

a partition of real or personal estate held b the ward 'ointl or in common with

others 6ec 0 Aule ;?, ec 1>= #")" *o" +-+.-+0-2<

• ubmit veriCed inventor of ward’s 6appraised< estate within months after

appointment, and annuall thereafter, the rendition of which ma be re!uired upon

the application of an interested person 6ec 1>@ #")" *o" +-+.-+0-2, ec > Aule ;?<

• Aeport an propert 6with appraisal< not included in the inventor discovered, or

succeeded to or ac!uired b the ward within months after such discover,

succession or ac!uisition 6ec 1>3 #")" *o" +-+.-+0-2, ec > Aule ;?<

• Aender accounting for court approval of the propert one ear from appointment andever ear thereafter or as often as ma be re!uired 6ec 1>$ #")" *o" +-+.-+0-2,

ec D Aule ;?<" Aendition of veriCed accounting ma be compelled upon application

of an interested person 6ec > Aule ;?<

Bubeldia 6 Guttiere ermanos ,3 'hil %10

2an the guardian delegate his dutiesK Qes"

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2ompetenc ad'udged upon veriCed petition b the ward or his relative

or friend 6ec 1 Aule ;><o Ae!uires notice to the guardiano *o motion for removal or resignation shall be granted unless the guardian has

submitted the proper accounting of the propert of the ward and the court has

appointed the same 6ec .: #")" *o" +-+.-+0-2<o 4ther grounds 6ec .0 #")" *o" +-+.-+0-2<

=eath of ward 9ard has reached age of ma'orit

• Termination ma be made motu proprio or b veriCed petition of

an person 2onMict of interest 62arbonell v Nda" =e Aibaa 6>: P .0:<

Adoption

AdoptionC A 32D 3)D 32 S!C >Eecti6e August 22; 2332

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I. =omestic Adoption S1D2( A 32D 3)D 32 S!

Adoption; !oncept

The process of ma8ing a child, whether related or not to the adopter, possess in

general the rights accorded to a legitimate child"

It is a 'uridical act, a proceeding in rem which creates between two persons arelationship similar to that which results from legitimate paternit and Cliation" 6In AeL#doption of tephanie #storga, $A" *o" 1:D11 )arch 1, .++0<

The modern trend is to consider adoption not merel as an act to establish arelationship of paternit and Cliation, but also as an act which endows the child with alegitimate status"

G* 2onvention of the Aights of the 2hild, accepted the principle that adoption isimpressed with social and moral responsibilit, and the underling intent is geared tofavor the adopted child"

Aepubli

ct #ct *o" D00. secures these rights and privileges for the adopted as embodied inthe G* 2onvention" 6In AeL #doption of tephanie #storga, $A" *o" 1:D11 )arch 1,.++0<

Who a& 8e Adopted 9S( A 32D 3)D 32 S!:

# child voluntaril committed to the =9= or 'udiciall declared available foradoption"

Ma’am: So yung nasa )S5) or sa bahay ampunan udicially declared available for adoption.

&egitimate child of one spouse b the other spouse" Illegitimate child b a !ualiCed adopter to raise the status of the former to that of

legitimac" Person of legal age regardless of status who has been consistentl considered and

treated b the adopters as their own child since minorit" 2hild whose adoption has been previousl rescinded" 2hild not otherwise dis!ualiCed b law or these rules"

=e+nitions 9S" A 32D 3)D 32 S!:

!hild % # person below 1D ears old" !hild Legall& A6ailable for Adoption D child voluntaril or involuntaril committed

to the =9=, accredited child- caring agenc, freed of parental authoritof hisbiological parents, or in case of rescission of adoption, his guardian or adopters"

#oluntaril& !ommitted !hild % whose parents relin!uished parental authorit overhim in favor of =9="

In6oluntaril& !ommitted !hild % whose parents, 8nown or un8nown, have beenpermanentl and 'udiciall deprived of parental authoritover him due to

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abandonment substantial, continuous or repeated neglect and abuse orincompetence to discharge parental responsibilities"

oundling % =eserted or abandoned infant or child whose parents, guardian orrelatives are un8nown"2hild committed to an orphanage or charitable or similar institution which un8nownfacts of birth and parentage are registered with the 2ivil Aegistrar as a foundling"

Ma’am: So the main concept of foundling is that you dont know who are the parents,like yung iniwan lang sa basurahan or sa bahay ampunan na wlang trace kung sino

yung parents, that can be considered a foundling.

Abandoned !hild % 9ithout proper parental care or guardianship or whose parentshave deserted him for a period of at least ? months and, 8nown or un8nown, havebeen permanentl and 'udiciall deprived of parental authorit over him due toabandonment, substantial, continuous or repaeated neglectand abuse orincompetence to discharge parental responsibilities"

=ependent !hild % has no parent, guardian or custodian or whose parents, guardianor custodian for good cause desires to be relieved of his care and custod and is

dependent upon the public for support" eglected !hild % one whose basic needs have been deliberatel not attended to orinade!uatel attended to, phsicall or emotionall, b his parents or guardian"

Who a& Adopt

ilipino !itien 9S%91: A 32D 3)D 32 S!: 9ith full civil capacit and legal rights 4f good moral character *ot convicted of an crime invoving moral turpitude @motionall and pschologicall capable of caring for children #t least 1? ears older than the adoptee unless the biological parent of adoptee or

the spouse of said parent

Ma’am: So the +6 years age gap can be dispensed with if the adopter is the biological parent of the child to be adopted or is the spouse of said biological parent.

In a position to support and care for his children in 8eeping with the means of thefamil

Ma’am: /an an alien adopt( 7es, an alien can adopt in the 2hilippines under )omesticadoption law.

Alien ame !ualiCcation as 3ilipino 2itiFens #dditional re!uirementsL

*ational of a countr with diplomatic relations with the Phils Eas been certiCed b his diplomatic or consular o5ce of an appropriate government

agenc to have legal capacit to adopt in his countr as adopted child ear continuous prior residenc and maintains such residence until adoption decree

is entered @(ceptions to ear continuous residenc

• # former 3ilipino adopting a relative within :th degree of consaguinit ora5nit

• #lien adopting the legitimate child of 3ilipino spouse

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Page | 1D

• )arried to a 3ilipino see8ing to adopt 'ointl with his spouse a relativewithin the :th degree of consaguinit or a5nit of the 3ilipino spouse

a& an alien married to a former ilipino citien adopt the latterFs

&ounger brother and sister?

*4" Ee is not a former 3ilipino citiFen who see8s to adopt a relative bconsaguinit" *or does he see8 to adopt his wife’s legitimate child" #lthoughhe see8s to adopr with his wife her relatives b consaguinit, he is not marriedto a 3ilipino citiFen, for Aosalina was alread a naturaliFed #merican at thetime the petition was Cled, thus, e(cluding him from the coverage of thee(ception"

o5 about a former +lipino citien? a& she adopt her &ounger

siblings?

*4" 4n her own, the wife cannot adopt her brother and sister for the lawmmandates 'oint adoption b husband and wife, sub'ect to e(ceptions" #rticle.; of P= *o" ?+ 62hild and Qouth 9elfare 2ode< retained the 2ivil 2ode

provision that husband and wife ma 'ointl adopt" 6Aepublic N" #larconNergara $A" *o" ;0001 )arch .+, 1;;><

Guardian 9S%9": A 32D 3)D 32 S!: )a adopt ward after termination of the guardianship and clearance of

Cnancial accountabilities"

arried person must jointl& adopt 5ith his her spouse. 9S% A 32D 3)D 32 S!:

@(ceptionsL 4ne pouse see8s to adopt the legitimate child of the other spouse 4ne spouse see8s to adopt his own illegitimate child, provided the other

spouse consents thereto pouses are legall separated from each other

Aeason for )andator Aule The use of the word “shall” in the above-!uoted provision means that 'oint

adoption b the husband and wife is mandator" This is in consonance withthe concept of 'oint parental authorit over the child which is the idealsituation" #s the child to be adopted is elevated to the level of a legitimatechild, it is but natural to re!uire the spouses to adopt 'ointl" The rule alsoinsures harmon between the spouses" 6In AeL Petition for #doption )onina R)ichael &im, $A" *o" 1?D;;.- ; )a .1, .++;<

#enue

- 3amil 2ourt of the province where the prospective adoptive parents reside 6? #) +.- +?-+. 2<

orm of 'etition

NeriCed 9ith certiCcate against forum shopping peciCcall states at the heading of initiator pleading where it includesL

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Page | 1;

o #pplication for change of nameo AectiCcation of simulated birtho Noluntar or involuntar commitment of childreno =eclaration of child as abandoned, dependent or neglected child" 6> #) +.- +?- +.

2<

Ma’am: So these additional reliefs that must be indicated in the caption of the petitionare the other reliefs that you can ask or pray for in the same petition for adoption.

!ontents of 'etition

ilipino !itien 9S,91: A 32D 3)D 32 S!:

Burisdictional 3acts #dopter’s !ualiCcations under : #) +.- +?- +. 2 #dopter has undergone pre-adoption services under :, A# D00., i" e" counselling

sessions, pre-adoption fora and seminars to 61< resolve possible adoptionissues, 6.< to prepare himJ her for eective parenting, and 6< help assesstheir motivation, capacit and readiness to adopt"

Alien Adopter 9S,92: A 32D 3)D 32 S!:

Burisdictional 3acts #dopter !ualiCcations 6:6.< #) +.- +?- +. 2< #dopter has undergone pre-adotion services under :, A# D00., i" e" counselling sessions,

pre-adoption fora and seminars to 61< resolve possible adoption issues, 6.< to preparehimJ her for eective parenting, and 6< help assess their motivation, capacit andreadiness to adopt"

2ountr has diplomatic relations with the Philippines" 2ompliance with residenc re!uirements 2ertiCed to have legal capacit to adopt in his countr and adoptee is allowed to

enter his acountr as such

@(ceptions to the foregoing re!uirementsLo # former 3ilipino adopting a relative within :th degree of consanguinit or a5nito #lien adopting the legitimate child of 3ilipino spouseo )arried to a 3ilipino see8ing to adopt 'ointl with spouse relative within the :th

degree of consanguinit or a5nit of the 3ilipino spouse

Guardian 9S,9": A 32D 3)D 32 S!:

$uardianship has been terminated $uardian has been cleared of his Cnancial accountabilities

arried Adopter 9S,9%: A 32D 3)D 32 S!:

- pouse is co- petitioner unless e(ceptions appl

oundling Adoptee 9S,9(: A 32D 3)D 32 S!:

- #llege entries which should appear in his birth certiCcate , i"e" name, date and birth of child6if 8nown<, se(, name, and citiFenshipof adoptive parents and date and place of marriage

1;



Page | .+

Adoptee is a oundling; Abandoned; =ependent or eglected !hild 9S0 A 32D 3)D32 S!:

3acts showing that the child is a foundling, abandoned, dependent or neglected *ames of the parents if 8nown and their residence" If no 8nown or living parents,

allege name and residence of guardian, if an"

*ame and dul licensed child placement agenc or individual whose care the child isin custod That =9=, child-placement or child- caring agenc is authoriFed to give its consent

!hange of ame

2aption must contain 61+ #) +.- +?- +. 2< Aegistered name of child #liases or other names b which child has been 8nown 3ull name b which the child is to be 8nown

8od& must allege 9S,9): A 32D 3)D 32 S!:

name, surname or names, age and residence of the adoptee as shown b his birth record,baptismal and foundling certiCcate and school records

#doptee is not dis!ualiCed b law to be adopted Probable value and character of adoptee’s estate 3irst name, surname or names b which adoptee is to be 8nown and registered in the 2ivil

Aegistr

Surname of Adoptee

- #rt" 1D;, 3amil 2ode- allows the adoptee as a matter of right and obligation to bear the surname of adopter,upon issuance of the decree of adoption" It is the change of the adoptee’s surname to follow

that of the adopter which is the natural and necessar conse!uence of a grant of adoptionand must speciCcall be contained in the order of the court, in fact, even if not praed for bpetitioner" 6Aep" N" EernandeF, $A" *o" 11>.+;, 3ebruar ?, 1;;?<

irst ame of Adoptee

$iven or proper name, also 8nown as the Crst or 2hristian name, of the adoptee mustremain as it was originall registered in the civil register

The creation of an adoptive relationship does not confer upon the adopter a licenseto change the adoptee’s registered 2hristian or Crst name" The automatic change thereof,premised solel upon the adoption thus granted, is beond the purview of the decree of adoption" *iether is it a mere incident in nor an ad'unct of an adoption proceeding, such

that a praer therefor furtivel inserted in a petition for adoption, as in this case cannotproperl be granted" 6Aep" N" EernandeF, $A" *o" 11>.+;, 3ebruar ?, 1;;?<

Ma’am: this is the precursor, the rule now allows the complete change in the name of theadoptee, meaning you can change also the rst name so long as you put that in the petition.'hat is why in the caption of your petition you must allege the registered name of the child,the aliases, and also the full name of which the child to be know, that allows you to changethe entire name of the child, in response to the ruling of the S/ in 8ep. vs. 9ernande whichonly the surname that can be change by virtue of the decree of adoption.

.+



Page | .1

iddle ame of Adoptee

- # child adopted b the natural father ma bear the surname of the mother as middle name6In AeL #doption of *athalie #storga $A" *o" 1:D1 )arch 1, .++0<

- 4ne of the eects of adoption is that the adopted is deemed to be a legitimate child of theadopter for all intents and purposes" #s such, the adoptee is entitled to all the rightsprovided b law to a legitimate child without discrimination of an 8ind, including the right tobear the surname of her father and her mother"

/ecti+cation of Simulated 8irth 9S- A 32D 3)D 32 S!:

Petitioner is appling for rectiCcation of simulation of birth imulation of birth is made prior to the eectivit of A# D00. on 3eb" .0, 1;;D and

application for rectiCcation is made within 0 ears from said date imulation of birth was made for the best interest of the child #doptee has been consistentl considered and treated b petitioner as his won child

Ma’am: 8ectication of Simulated birth this is no longer applicable because this is only allowed 3 years after the aectivity of 8* ;33 which took eect on eb 3, +<<; so it isonly up to 44=, so no longer applicable.

AnneHes to the 'etition

Attachments 9S11 A 32D 3)D 32 S!:

7irth baptismal or foundling certiCcate and school records showing the name, ageand residence adoptee

#5davit of consent of the followingL

• #doptee who is 1+ ears of age or over

• 7iological parents of the child if 8nown, or the guardian or child placement

agenc, child caring agenc or proper government instrumentalit havinglegal custod of the child

• &egitimate and adopted children of the adopter and of the adoptee if an, whoare 1+ ears old and over

• pouse, if an, of the adopter or adoptee

The 2 said, The general re!uirement of consent and notice to the natural parents isintended to protect the natural parental relationship from unwarranted interferenceb interlopers, and to insure the opportunit to safeguard the best interests of thechild in the manner of the proposed adoption

Written consent of biological parent

Ma’am: the consent be embodied in the in the trial custody report, that was the issue in>andingin vs. 8ep., here in the report of the social worker it states there that the socialworker was able to interview the mother and the mother had given her consent in theadoption, is that enough( 'he S/ held the following:

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Page | .

2aption shall state registered name of adoptee in the birth certiCcate and names bwhich adoptee has been 8nown

Purpose of petition 2omplete name to be used b adoptee if petition is granted =ate and place of hearing to be set within ? months from date of issuance of order

or, if change of name is praed for, after : months after last publication of the notice

or more than + das prior to an election =irective on the publication of the notice in a newspaper of general circulation in the

province or cit where court sits 2ontents

• =irective to the social wor8er of the court, the social service o5ce of the localgovernment unit or na child placing or child caring agenc, or the =9= toprepare amd submit child and home stud reports before the hearing if suchreports had not been attached to the petition due to unavailabilit at the timeof Cling of petition,

• =irective to social wor8er of the court to conduct counseling sessions with thebiological parents on the matter of adoption of the adoptee and submit herreport before the date of hearing

To be furnished onL• 45ce of the olicitor $eneral through the provincial or cit prosecutor,

-)andator if change of name is also praed for =9= 7iological parents of adoptee, if 8nown

/eports of the Social 5orker that need to be submittedJ1" 2hild tud Aeport." Eome tud Aeport

!hild Stud& /eport

tud made b court social wor8er of the child’s legal status, placement histor,

pschological, social, spiritual, medical, ethno-cultural bac8ground famil needed indetermining the most appropriate placement for him 6S oU #) +.-+?-+.-2<

)a’amL It is all about the report on the child to be adopted that is wh is it child studreport"

ocial wor8er shall 6S1 #) +.-+?-+.-2<

• Nerif with the 2ivil Aegistr the real identit and registered name of the adoptee"If not registered, social wor8er shall register the adoptee and secure a certiCcateof foundling of late registration

@stablish that

• 2hild is legall available for adoption

•

upporting documents are valid and authentic• #dopter has sincere intentions

• #doption id for the best interests of the child

ome Stud& /eport

tud made b court social wor8er of the motivation and capacit of the prospectiveadoptive parents to provide a home that meets the needs of a child 6S pU #) +.-+?-+.-2<

.



Page | .:

If adopter is an alien, social wor8er must show 6S1 #) +.-+?-+.-2<

• #dopter’s legal capacit to adopt

• #dopter’s government allows the adoptee to enter his countr as his adoptedchild in the absence of the certiCcation re!uired under ection >6b< of A# D00.

!hild ome Stud& /eports

If after conduct of the case studies, the social wor8er Cnds that there are grounds toden the petition, he shall ma8e the proper recommendation to the court, furnishinga cop thereof to the petitioner" 6S1 #) +.-+?-+.-2<

Ma’am: So the social worker can assess whether the petition should be granted or not and such assessment will be in a form of a recommendation in the court especially if thesocial worker nds su0cient ground to deny the petition.

earing

Proof re!uired 6S1: #) +.-+?-+.-2<

• Publication of order of hearing

• 2ompliance with 'urisdictional re!uirements 9ho should appear 6S1: #) +.-+?-+.-2<

• Petitioner who should testif before the court

• #doptee

• ocial 9or8er who shall verif whether biological parent has been properlcounseled against ma8ing hast decisions caused b strain or an(iet to giveup the child

=ut of the 2ourt

• Nerif from the ocial wor8er and determine whether bioligical parent has

been properl counseled against ma8ing hast decisions caused b strain oran(iet to give up the child• @nsure that all measures to strengthen the famil hace been e(hausted

• #scertain if an prolonged sta of the child in his own home will be inimical tohis welfare and interest

Super6ised $rial !ustod& 6Gnder special rules<

Period of time during which a social wor8er oversees the ad'ustment and emotionalreadiness of both adopters and adoptee in stabiliFing their Clial relationship 6S !U#) +.-+?-+.-2<

To be monitored bu the court social wor8er, =9=, 2=4, child-placement or child-caring agenc which submitted and prepared the case studies 6S 10, id<

#t least ? months % during which temporar parental authorit shall be vested in theadopter 6id<

Trial 2ustod ma be reduced or e(empted b the court muto proprio or upon motionof an part for the best interest of adoptee 6id<

? months % must be completed b an alien adopter e(ceptL

• # former Clipino adopting a relative within :th degree of consanguinit ora5nit

• #lien adopting the legitimate child of 3ilipino spouse

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Page | .?

If adoptee is a foundling, 2ourt shall order the 2ivil Aegistrar of the Place where theadoptee was registered

• to annotate the decree of adoption on the foundling certiCcate

• prepare a new birth certiCcate in accordance with the decree

/e&es 6. SoteroG / o. 1),%3(; ebruar& 1); 233)

The following proofs were presented to prove the fact of adoption

• 1U 2ertiCcation issued b the )unicipal 2ivil Aegistrar reL entries in theAegister of 2ourt =ecrees showing details of Aees’ decree of adoption

• .U 2ertiCcation issued b the 2ler8 of 2ourt reL e(istence of decree of adoption

• U 2op of Budicial 3orm *o" : indicating that the adoption decree was on Clein the $eneral =oc8et of the AT2

EeldL

Proofs are su5cient" 7oth certiCcationd were issued under the seal of the issuing o5ces andwere signed b the proper o5cers" These are thus presumed to have been regularl issuedas part of the o5cial duties that said public o5cers perform" It should be borne in mind thatan adoption decree is a public document re!uired b law to be entered into the publicrecords, the o5cial repositor of which, as well as all other 'udicial pronouncementsaecting the status of individuals, is the local civil registrar’s o5ce as well as the courtwhich renedered the 'udgement"

VL Is there such a thing as 'udicial conCrmation of a de facto adoptionK 6)a’amL li8e8inuha na ang bata or li8e in simulated birth the represented themselves as parent,can the go to court an as8 for 'udicial conCrmation of a de facto adoptionK *o"<

• *o" 42# v" $I*@, #")" *o" ATBW;.WD+. Bul 0, 1;;" The onl proceeding is

under the special rules"

8ook of Adoptions

To be 8ept b the cler8 of court showing

• =ate of issuance of the decree in each case

• 2ompliance b the 2ivil Aegistrar with section 1?67< 6<

• #ll incidents arising after issuance of the decree

!on+dentialit&

Eearings and proceedings shall be conCdential 6after compliance with 'urisdiciton

re!uirements< 6S 1D#m +.W+?W+.W2< Aecords, boo8s and papers relating to the adoption cases 8ept in the Cles of the court,the =9=, or other agenc or institution participating in teh adoption proceedings shallbe 8ept strictl conCdential

/escission of Adoption 102% A 323)32 S!

.?



Page | .>

Who a& ile /escission

#doptee 6S 1; #) +.W+?W+. 2<o 4ver 1D ears of ageo 4ver 1D but incapacitated with the assistance of guardian or counselo )inor but with the assistance of the =9=

#dopter not allowed to rescind adoptee but ma onl disinherit the adoptee forcauses under #rticle ;1; of the 2ivil 2ode

Lahom 6. SibuloG / o. 1%"0-0; 7ul& 1%; 233"

VL )a an adoption made under the old law be rescinded upon the instance of theadopter under the new adoption lawK

#L *o"

EeldL It was months after the eectivit of A"#" *o" D00. that herein petitioner Cled na

action to revo8e the decree of adoption granted in 1;>0" 7 then, the new land, hadalread abrogated and repealed the right of an adopter under the 2ivil 2ode and the3amil 2ode to rescind a decree of adoption" 2onsistent with its earlierpronoucements, the 2ourt should now hold that the action for rescission of theadoption decree, having been initiated b petitioner after A"#" *o" D00. had comeinto force, no longer could be pursued"

orm of 'etition

NeriCed 9ith assistance of guardian, counsel or =9= for minor or incapacitated adoptees 6S

1; #) +.W+?W+. 2<

Where When to ile

Nenue 6S .+ #) +.W+?W+. 2<o 3amil 2ourt where adoptee resides

Time to Cle 6S .1 #) +.W+?W+. 2<o 3or incapacitated adoptee, within 0 ears after reaching ma'orit ageo 3or incompetent adoptee, within 0 ears after recover from such

incompetenc

4rder to Ans5er

Ae!uired adverse part to answer within 10 das from receipt of a cop 6S .. #)

+.W+?W+.W2<

4rder shall be served on the adverse part in such manner as the court ma direct

7udgement

Aescission of adoption if allegations in the petition are true with or without costs 6S .#) +.W+?W+.W2<

.>



Page | .D

If adoptee is still a minor or incapacitatedLo Aestoration of parental authorit of biological parent, if 8nown,o Aestoration of legal custod to the =9=

@(tinguishment of reciprocal rights abd obligations of adopter and adoptee Aeversion of successional rights as of date of 'udgement of 'udicial rescission"

Eowever, rights ac!uired prior to rescission shall be respected

Aeversion of the name of adoptee as appearing in his original birth of foundlingcertiCcate

)a’amL that is the reason wh the original birth cert should be 8ept, that in case of rescission of the decree of adoption"

2ancellation b the 2ivil Aegistrar of the new birth certiCcate and reinstatement of original birth or foundling certiCcate

Ser6ice of 7udgement

Petitioner shall serve upon the 2ivil Aegistrar a certiCed true cop of the 'udgementtogether with a certiCcate if Cnalit issued b the 7ranch 2ler8 of 2ourt within +

das from receipt of certiCcate of Cnalit 2ivil Aegistrar shall enter the rescission decree in the registrer and submit prrof of

compliance to the cler8 of court within + das from the receipt of the decree 2ler8 of court shall enter the compliance in the 7oo8 of #doptions 6S .: #)

+.W+?W+.W2<

II. InterD!ountr& Adoption2)"" A 323)32S!

Applicabilit&

Inter-countr adoption of 3ilipino children b foreign nationals

Inter-countr adoption of 3ilipino children b 3ilipino citiFens permanentl residingabroad 6S.? #) +.W+?W+.W2<

)a’amL this involved 3ilipino children to be adopted b foreign nationals or 3ilipinocitiFens permanentl residing abroad"

'etition $o Adopt

3orm 6S.D #) +.W+?W+.W2<o NeriCed

9ho ma be adopted 6S.D #) +.W+?W+.W2<o 3ilipino child legall available for domestic adoption

9ho ma adopt 6S.D #) +.W+?W+.W2<o 3oreign nationalo 3ilipino permanentl residing abroad

#enue

3amil 2ourt 6S.> #) +.W+?W+.W2<o 4f the place where adoptee resides or ma be found

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Page | .;

)a’amL here in the place of adoptee but in the domestic adoption ou Cled itin the place of the adopter" Eere, precisel because the adopters are notresiding in the Philippines the are foreigners or permanentl residing abroadso it is logical that the petition be Cled in the place where the adoptee resides"

Inter-countr #doption 7oard


#ge 6S+ #) +.W+?W+.W2<o Petitioner must be at least .> ears oldo #doptee must be at least 1? ears ounger at the time of application, e(cept

when iU petitioner is parent of the child or iiU spouse od such parent

2ivil tatus of adoptero If married, spouse must be 'oined as a co-petitioner e(cept when adoptee is

legitimate child of the spouse

#dopter has capacit to act and assume all rights and responsibilit of parentalauthorit under his national laws and has undergone appropriate counseling from anaccredited counselor in his countr

#dopter has not been convicted of a crime involving moral turpitude #dopter is eligible to adopt under his national law #dopter can provide proper care and support and instill the necessar moral values

and e(ample to all his children, including the child to be adopted #dopter agrees to uphold the basic rights of the child and embodied under Philippine

&aws and the G* 2onvention on the Aights of the 2hild, and to abide b the rules andregulations issued to implement the provision of A# *o" D+:

#dopter comes froom a countr with which the Philippines has diplomatic relationsand whose government maintains a similarl authoriFed and accredited agenc andthat adoption of a 3ilipino child is allowed under his national laws

#dopter possesses all the !ualiCcations and none of the dis!ualiCcations provided inthis Aule, in A# *o" D+:

AnneHes to the 'etition

Petitioner’s birth certiCcate 61 #) +.-+?-+. 2< )arriage contract if marriage or divorce decree or 'udgment dissolving marriage, if

applicable worn statement of consent of adopter’s biological children above 1+ ears old Phsical, medical and pschological evaluation of the petitioner certiCed b a dul

licensed phsician and pdchologist Petiitoner’s income ta( return or an authentic document showing the current

Cnancial capabilit of the petitioner Petitioner’s police clearance issued within ? months before the Cling of petition 2haracter reference from the local churchJminister, the petitioner’s emploer and a

member of the immediate communit who have 8nown petitioner for at least 0 ears 3ull bod postcard-siFe pictures of the petitioner and his immediate famil ta8en at

least ? months before the Cling of the petition

.;



Page | +

=ut& of the !ourt

2ourt shall e(amine whether petition is su5cient in form and substance and a propercase for inter-countr adoption 6S1 #) +.-+?-+. 2<

If so, shall immediatel transmit the petition to the Inter-2ountr #doption 7oard for

appropriate action

Ma’am: the court will not determine whether to grant or not to grant the petition it willsimply assess and will forward the petition to the inter%country adoption board. ?umbagamagevaluate lang ang court, it is now up to the !/*@ to grant or not to grant theadoption.

/ule on !ommitment of !hildren 9aFamJ We 5ill no longer take that up:A.. o. 32A10S!

/ule on !onstruction

The best interests of the child shall be the paramount consideration in all actions

concerning him" 6S . #) +.-#-1;W2<

+



Page | 1

!AG> 4 A>9/ule 13":

ature of the proceeding

• # special proceeding to establish the status of a person involving his relation toothers

• # proceeding in rem

1



Page | .

Legal basis

• #rticle >? of the 3amil 2ode “*o person can change his name or surname without 'udicial authorit"” The change is not a matter of right but of 'udicial discretion" 6)oore vs"

Aepublic Bune .?, 1;?<• A# ;+:D % 2lerical @rror &aw

3irst name ma now be changed or modiCed without 'udicial authorit"

$A in *22L ou have to go to court before ou can eect the change inour name

'urpose of the /ule

• To prevent fraud

• impl to have, wherever possible, a record of the change of name

• # court to which application is made should normall ma8e its decree recording suchchange of name

o let’s ta8e upX 9hat is a *ameK 9h is a name importantK #s we have stated,A1+ is a proceeding in rem" It is a proceeding that establishes our relationship toothers" o our name is important" Eow ou are called or identiCed in societ isimportant" That is wh ma mga 8aso taong libel" asi ung pangalan mo nasisira")a pinangangalagaan 8ang pangalan sa lipunan" That’s wh name is important"

ame

• =esignation b which a person is 8nown and called in the communit he lives in

• Gsuall has two parts1" The given name or proper name." The surname or famil name

• Aeal name of the person is that given him in the 2ivil Aegister

o hindi ung na8alaga sa baptismal record mo" Qung nasa birth record mo,as registered in the civil registr I our real name"

!haracteristics of ame

• #bsolute, intended to protect individual from being confused with others

• 4bligator in certain respects, nobod can be without a name

• 3i(ed, unchangeable, or immutable, at least at the start, and ma be changed onlfor good cause and b 'udicial proceedings

• 4utside the commerce of man, hence, inalienable and intransmissible b act intervivos or mortis causa

• Imprescriptible 6In AeL Petition for 2hange of *ameJ2orrection of @ntr in 2ivilAegistr of Buan &in 2arulasan 9ang $A *o" 10;;??, )arch +, .++0<

iddle ame9e don’t have laws governing )iddle *ames"

• )iddle names serve to identif the maternal lineage or Cliation of a person

• =istinguish him from others who ma have the same given name and surname as hehas 6In Ae #doption of *athalie #storga $arcia $A *o" 1:D11, )arch 1, .++0<

If ou notice, ou go to the *7I to get a clearance, if our name is so commonli8e Buan =ela 2ruF" #ng dami mong hit" Eindi 8a 8aagan ma8a8a8uha ngclearance" It ta8es two wee8s pa siguro bago ma ascertain" #nd how will the

.



Page |

*7I determine 8ung i8aw ba ung ma 8aso or wanted or criminal nanagtatago or fugitive na nag-hit doon sa *7IK It’s through our middle name" The will chec8" I8aw ba itong Buan =ela 2ruF na wanted for robber or8idnappingK Pag pina8ita mo ang birth record mo and na8alaga doon angmiddle name mo is such and such then ma8iclear 8a 8aagan 8ung ou are thefugitive" o it distinguishes ou from others who ma have the same given

name and surname"• #rticle >0 61< 2ivil 2ode

iddle ame

Ta8e note also that the middle name is important to distinguish a person whether heis legitimate or illegitimate"

• &egitimate child cannot be deprived of a middle name, especiall when the reasongiven is merel for convenience 6In AeL Petition for 2hange of *ameJ2orrection of @ntr in 2ivil Aegistr of Buan &in 2arulasan 9ang $A *o" 10;;??, )arch +, .++0<

This is a petition where the parents wanted to remove the middle name of alegitimate child" The are residing in ingapore and the child is being singledout because he has a middle name as opposed to his classmates na walangmiddle name" o for convenience, para hindi na sia 8antiawan sa school,nag petition sila to remove the middle name of the child in the birth record"#nd the 2 said ou can’t do that" The 2 saidL

• 4ur laws on the use of surnames state that legitimate and legitimated children shallprincipall use the surname of the father" The 3amil 2ode gives legitimate childrenthe right to bear the surnames of the father and the mother, while illegitimatechildren shall use the surname of their mother, unless their father recogniFes theirCliation, in which case the ma bear the father’s surname"

• #n illegitimate child whose Cliation is not recogniFed b the father bears onl a givenname and his mother’s surname, and does not have a middle name" The name of theunrecogniFed child therefore identiCes him as such"

=iba under the 32, pag illegitimate ung bata, automatic it’s the surname of the mother" Gnless, under the Aevilla &aw the father signs in the birth recordand allows his surname to be used b the illegitimate child" In which case,that child becomes a recogniFed illegitimate child" #c8nowledged illegitimatechild" Pero 8apag ang na8alaga lang dian ang pangalan ng nana ang angsurname ng nana ang surname ng bata, it presupposes that the child is anG*A@24$*IY@= I&&@$ITI)#T@ 2EI&=" aa wala siang middle name" o pag

tinanggalan mo ng middle name ang legitmate child, it is no longer for thebest interest of the child" 7ecause ou are downgrading the status of thechild from a legitimate child to an unrecogniFed illegitimate child" aa sabing 2, hindi pwepwede an" 9e cannot allow that because it is not for thebest interest of the child" It is merel for convenience 8asi 8ina8anchawansia sa school" That is not a reason to cancel or remove the middle name of alegitimate child"



Page | :

• #ccordingl, the registration in the civil registr of the birth of such individualsre!uires that the middle name be indicated in the certiCcate" The registered name of the legitimate, legitimated and recogniFed illegitimate child contains a given orproper name, a middle name and a surname"Pag wala 8ang middle name, automatic ou are an unrecogniFed illegitimatechild"

ame of a arried Woman

=o ou reall have to change our surname once ou get marriedK The *22 doesnot re!uire ou to do that"

• Gse of husband’s name is optional, not obligator, citing #rticle >+, 2ivil 2ode 67ar

)atter *o 1?.0, Bul 1D, .++?< *ow supposing naghiwala 8ao ng asawa mo" Qou have that in the hari’a &aw where divorce is allowed" =o ou have topetition the court for a change of name for ou to revert to our maidennameK *4"

• *ot re!uired to see8 'udicial name change upon termination of marriage 6Qasin vs"

haria =istrict 2ourt, .:1 2A# ?+?, 1;;0< Qour birth record is never aected

when ou get married" Qour birth record was registered upon our birth notupon our marriage so 8ung ano na8alaga sa birth record mo, as is anregardless 8ung ano ung marriage contract na ine(ecute mo" o as far asthe determination of our marriage is concerned, ou onl have to show thedecree of divorceJannulment in order to 'ustif our reversion to our maidenname as appearing in our birth record" ung nagpa8asal 8a, hindi automaticnabubura ang pangalan mo sa birth certiCcate mo" #s is lang un" aa It’sabsurd to go to court and have a name change b reason of the terminationof marriage" Pero para walang gulo, wag mo na palitan ang pangalan mo")arried or unmarried, as is na"

Eow about in the passportK•

2annot revert bac8 to her maiden name in her replacement passport while hermarriage subsists 6Aemo vs" ec" 4f 3oreign #airs, $A *o" 1?;.+., )arch 0, .+1+<

# married woman petitioned for the reversion of her name from married toher maiden name in her passport" Eindi ito brith record" $usto na sapassport na, mabali8 ang pangalan nia sa maiden name" 2 saidL

• ince petitionerZs marriage to her husband subsists, placing her case outside of thepurview of ection 06d< of A# D.; 6as to the instances when a married woman marevert to the use of her maiden name<, she ma not resume her maiden name in thereplacement passport"

• The conMict between #rticle >+ of the 2ivil 2ode and ection 06d< of A# D.; is moreimagined than real" A# D.;, including its implementing rules and regulations, doesnot prohibit a married woman from using her maiden name in her passport" In fact, inrecognition of this right, the =3# allows a married woman who applies for a passportfor the Crst time to use her maiden name" uch an applicant is not re!uired to adopther husbandZs surname"

• In the case of renewal of passport, a married woman ma either adopt her husbandZssurname or continuousl use her maiden name" If she chooses to adopt herhusbandZs surname in her new passport, the =3# additionall re!uires the submissionof an authenticated cop of the marriage certiCcate" 4therwise, if she prefers to

:



Page | 0

continue using her maiden name, she ma still do so" The =3# will not prohibit herfrom continuousl using her maiden name"

• Eowever, once a married woman opted to adopt her husbandZs surname in herpassport, she ma not revert to the use of her maiden name, e(cept in the casesenumerated in ection 06d< of A# D.;" These instances areL 61< death of husband,

6.< divorce, 6< annulment, or 6:< nullit of marriage"

Gnder this provision, ou can onl revert to our maiden name in ourpassport if the instances enumerated under the law are present" )eaning tosa, ou have a 'udicial decree showing the dissolution of our marriage thenthat’s the time ou can revert to our maiden name"

4nce ou have opted to use our married name in our passport, hindi 8a nabasta-bastang mag revert because there is a speciCc law that governs theissuance of the passport and what are the contents of the passport" 7ecausethe passport is not a private document that ou own" It is a public documentowned b the state so it is governed b A# D.; so ou have to show the

e(istence of the dissolution or termination of our marriage for ou to revertto our maiden name"

Eowever, if after ou are married ou appl for a passport and still use ourmaiden name pursuant to #rt" >+ of the 22 that is optional for ou to usethe surname of our husband, pwede rin[ #ng sinasabi lang ng 2 is that pagpinili mo na gamitin ang surname ng asawa mo, hindi mo na basta.mababawi" &i8e in m case I have obtained m passport when I was stillsingle then I got married and applied for a G Nisa, hindi a8o nagpa amend8asi di pa e(pired a8ing passport" o pagappl naming ng visa, 1+ earsung, na8alaga sa G Nisa, maiden name" o when the time comes na8ailangan 8o i-renew ang a8ong passport, I can’t use the married name 8asi

masaang a8ing 1+-ear G visa" o I have to continue using m maidenname" 4 lang[ The will not force ou to change our name in the passporteven after ou’re married because it’s our option under #rt" >+ whetherou use our husband’s surname"

ame of !hildren

• &egitimate 2hildren

• Illegitimate children

Legitimate !hildren

• $eneral AuleL &egitimate children shall principall use the surname of their father6#rticle .?:, 2ivil 2ode<

If there is a name changeX let’s sa namata ang tata, nag-asawa ulit angnana" The mother wants the stepfather’s name to be used b the child" Qoucan’t do that through a petition for change of name" 2 saidL

• 2hange of name not allowed if it gives false impression of famil relationship toanother where none actuall e(ists 6Aepublic vs" )arcos, 1D. 2A# ..<

• 4ur laws do not authoriFe legitimate children to adopt the surname of a person nottheir father, for to allow them to adopt the surname of their mother’s husband, who is

0



Page | ?

not their father can result in the confusion of their paternit" 6Aepublic vs" )arcossupra, Aepublic vs" Nicencio, $A *o" DD.+., =ecember 1:, 1;DD<

o if it creates confusion, di sia pwede" It reminds me of a case here" Therewas a petitioner who is in his :+’s" Ee was put in the witness stand and hewas made to testif" It was a petition for correction of entr in the birth

record" Ee wanted to change the name of his mother in the birth recordbecause he wanted to put there the name of the woman who raised him"6)a’am Tiu suggested that the best remed is adoption"< 7ecause if he wantsto appear in his birth record a new set of parents, then it should be a petitionfor adoption" *ot a petition for a change of name" If ou want to change acomplete set of parents, ou can do that" &et the adoptive mother, the onewho raised him, adopt him and that would be the best solution" )a bago nasiang birth record at ang lalabas na nana is ung ano" Eindi correction of entr" Eow can ou correct something that reall happenedK 2orrection ngaeh, to reMect the true state of things, rightK Eow can ou correct the name of our mother who reall gave birth to ouK

Illegitimate !hildren• #rticle 1>? of the 3amil 2ode provides that “illegitimate children shall use the

surname and shall be under the parental authorit of their mother, and shall beentitled to support in conformit with this 2ode" “ This is the rule regardless of whether or not the father admits paternit" 6)ossesgeld vs" 2#, $A *o" 111:00,1.J.J;D, &eonardo vs" 2#, $A *o" 1.0.;, eptember 1+, .++<"

7efore the Aevilla &aw, the rule on the use of the mother’s surname for anillegitimate child has been strictl applied, regardless of whether the fatherac8nowledges the child" ahit na gusto mo ipagamit ang surname mo saillegitimate child mo, hindi allowed because the 32 is ver clear na dapatgamitin ang surname ng mother"EoweverL

• A# ;.00, #n #ct #llowing Illegitimate 2hildren To Gse The urname 4f Their 3ather #pplies to ac8nowledged illegitimate children Proof of ac8nowledgment

1" Aecord of birth 6#rt 1>., 1>0 32< signed b the father." #dmission in a public document or private handwritten document and

signed b the parent concerned

- ignature is strictl re!uired if there is onl one private handwritteninstrument

- ignature not re!uired if private handwritten instrument isaccompanied b other relevant and competent evidencecorroborative evidence 6=ela 2ruF vs" $racia, $A *o" 1>>>.D, Bul

1, .++;<

The parents were not married but before the child was born, the father died" o the child

was illegitimate because hindi 8asal ang parents and hindi sia magiging legitimate later

precisel because pata na ang tata habang nasa womb pa sia ng nana" 9hat surname

will the child useK The parents of the dead father wanted the child to use the surname of the

father" #llowedK Q@" 7ecause the father somehow made a memoir or autobio where he did

state there na un ang ana8 na" I thin8 in this case, ung ginawang biograph ng tata,

?



Page | >

there was no signature but there were other corroborative evidence" #nd the 2 said pwede

na"

Allo5ed name !hange

• Those made pursuant to #rt 1>?, 32

Aeversion of an unac8nowledged illegitimate child’s surname from that of his fatherto that of his mother

Aepublic vs" 2apote, $A *o" 10>+:, 3ebruar ., .++> - The child used thesurname of the father although his parents were not married" $usto ng nanairevert sa 8anang maiden name to reMect the fact na hindi sia 8asal satata at ang bata a illegitimate" If ou go b the previous decisions of the2, that would not have been allowed because that is not for the best interestof the child" 3rom a legitimate status, gagawin mong illegitimate" 7ut the 2granted it in this case"

• # change of name will erase the impression that he was ever recogniFed b his father

• It is also to his best interest as it will facilitate his mother’s intended petition to havehim to 'oin her in the Gnited tates" This 2ourt will not stand in the wa of thereuniCcation of mother and son" 6Aepublic vs" 2apote, $A *o" 10>+:, 3ebruar .,.++>< o the main purpose is for the mother to petition him to 'oin her to theG and she can onl do that if the child’s surname is reverted to hersurname" Ta8e note, this is an e(ception to the usual ruling of the 2"

• Those made pursuant to A# ;.00A# ;.00 was made to appl to allow an illegitimate child to use the surname of thedeceased father 6=ela 2ruF vs" $racia, $A *o" 1>>>.D, Bul 1, .++;<

=isallo5ed ame !hange

• 2hange surname to reMect the name of non-adopting step-father 6)oore vs" Aepublic,D 2A# .D.<

• )a result to the confusion to his real paternit

@speciall in the case of a stepfather na hindi naman inadopt ung bata" =imo pwede ipagamit ang surname ng stepfather to the child as it results inconfusion as to his real paternit"

'etition or !hange of ame

• 9ho ma CleK 6ec ., Aule 1+<

- #ll natural persons regardless of status, including aliens 6Qu vs" Aepublic $A &-.+D>:, )a .0, 1;??<

- Temporar resident alien not covered 64ngEuantin vs" Aepublic $A *o" .+;;>,

#pril .>, 1;?><

#enue 9Sec 1; /ule 13":

• Aegional trial 2ourt of the province where petitioner resides

Eow to determine residencL ears bona Cde residenc of petitioner in theprovince where the petition is Cled

!ontents of the 'etition

• ears bona Cde residenc of petitioner in the province where the petition is Cled

>



Page | D

• The cause for the change of name and

• *ame as8ed for 6ec ., Aule 1+<

- 3ailure to include the name sought to be adopted in the title of the petition,nor in the title or in the title or caption of the notices published in thenewspaper renders the court without 'urisdiction to hear and decide thepetition" 6Aepublic vs" Aees, Bune +, 1;>.<

• 4ther names and aliases must also appear in the caption of the petition- 4mission to indicate said names and aliases is fatal 6$o 2hiu vs" Aepublic, :?

2A# ?1>, Aepublic vs" oFa, 1?. 2A# .;., Aepublic vs" )arcos, 3ebruar 1,

1;;+< It is also re!uired that whatever names or aliases ou have mustalso appear in the caption of the petition" o if ou omit to indicate theother aliases or names, that is fatal and the proceedings will becomevoid"

orm of 'etition

• igned and veriCed b petitioner or some other person on his behalf # minor ma verif his own petition for name change with the assistance of his

parents 6Tse vs" Aepublic, #ugust 1, 1;?><

*on-veriCcation not fatall defective, ma be correct 64shito vs" Aepublic, )arch1, 1;?><

• )ust bear certiCcation against forum shopping 6ec ., Aule 1+<

Grounds for ame !hange

• 9hen the name is ridiculous, dishonorable, or e(tremel di5cult to write orpronounce"

• 2hange will avoid confusion

• 2ontinuous use since childhood of a 3ilipino name and was unaware of alienparentage

• 2hange is based on a sincere desire to adopt a 3ilipino name to erase signs of formeralienage, all in good faith and without pre'udice to anbod, and

• urname causes embarrassment and there is no showing that the desired changewas for a fraudulent purpose or that the change of name would pre'udice publicinterest 6Aepublic vs" EernandeF, 3ebruar ;, 1;;?<

ot Grounds for ame !hange

• eparation of spouses % automatic naman 8apag nag8aroon 8a ng decree of

legal separation, ou can revert to our own maiden name• *o proof of pre'udice b use of o5cial name

• )ere use and 8nown b dierent name

• *o proof that true name evo8es derisive laughter

• Gse of baptismal name" # name given to a person in the church records or elsewhere

or b which he is 8nown in the communit, when at variance with that entered into

the civil register, is uno5cial and cannot be recogniFed as his real name 6Aepublic vs"

EernandeF, 3ebruar ;, 1;;?<

4rder of earing

• 3i( date and place for hearing =ate shall not be within + das prior to an election nor within : months after

the last publication of the notice• Published for three 6< successive wee8s in some newspaper of general circulation

D



Page | ;

To apprise the public of the pendenc of the petition so that those who ma

8now of an legal ob'ection to it might come forward with the information in

order to determine the Ctness of petitioner"

atal discrepanc& bet5een petition and published order

• In the published order, the name of petitioner was spelled Baime " Tan while the

veriCed petition spelled his name as Bame " Tan “&a Prensa” publisher’s a5davitcontains the name Baime " Tan"

• =efect in the petition and the order, as to petitioner’s name spelling is substantial

because it did not correctl identif the part to the said proceedings• Petitioner has not complied strictl with the legal re!uirement regarding publication,

thereb rendering the entire proceeding had in the court below null and void 6In AeL

Baime Tan, &-1?D:, #pril .?, 1;D."<

)oral lessonL If ou are the lawer for a change of name petition, our 'ob

does not end in the Cling of the petition and in appearing in court" Qour 'ob is

to see to it that the publication of the order is correct and that once the

notice of the order of hearing comes out, ou have to chec8 if tama ba 8asipag ma tpo an at an ang napublish, saing ang iong pinaghirapan

because the proceedings become void"

earing

• #n interested person ma appear at the hearing and oppose the petition

• The olicitor $eneral or the proper individual or cit Cscal shall appear on behalf of

$overnment of the Aepublic 6ec :, Aule 1+<• Proof re!uired 6ec :, Aule 1+<

Publication of notice #llegations of the petition are true

ature of the proceeding• #dversarial 6Aepublic vs" 2apote, $A *o" 10>+:, 3ebruar ., .++><

# proceeding is adversarial where the part see8ing relief has given legal

warning to the other part and aording an opportunit to contest it" @ven if

no person comes forward and actuall contests it" )ere opportunit

once given alread renders the proceeding adversarial" Eow made

- Publication

- *otice to 4$ b serving cop on it

Ad6erse part&

• #n person interested who appear in the hearing and oppose the petition

• The olicitor $eneral shall appear in behalf of the government" The government, as

an agenc of the people, represents the Aepublic and therefore, the olicitor $eneral

represents in behalf of the public"

7udgment

• If proper and reasonable cause appears for changing the name of the petitioner,

court shall issue a 'udgment that such name be changed in accordance with the

praer of the petition"

;



Page | :1

&ast ear I assigned one group to prepare a petition for correction under

A1+D" Pag ginamit 8o un, madeden ang a8ing petition because the did not

implead all the necessar parties" It was for the correction of the citiFenship

of the parents" If nagappear na citiFenship doon, if puro pino automatic ang

ana8 pino" *a8alaga doon pino when in realit 2hinese ang parents so

gusto nila ipacorrect" Problem is the didn’t implead the parents whosecitiFenship are the ones being corrected in the birth record of the child" A1+D

sas the must be impleaded because sila ang pina8a aected b the

correction of their citiFenship"

9hen ou implead, ou don’t have to ma8e the persons impleaded as

respondents" Pwede mo siang i-implead as co-petitioner meaning the are

'oining the correction of erroneous entr in the birth record" 7asta nandoon

lang ang names nila, nagparticipate na sila o8a na un" Eindi 8ailangang

gawing respondents"

Who should be impleaded?

• ubstantial or contentious alterations ma be allowed onl in adversarial

proceedings, in which all interested parties are impleaded and due process is

properl observed• #ll possible indispensable parties must be impleaded

• 9hat is the eect of failure to implead indispensable partiesK

Indispensable parties is one where no complete relief can be had in the case if

wala ang indispensable parties"

Laba&oD/o5e 6s. /epublic

1)- S!/A 20% 9100-:

• In a petition aecting civil status and Cliation % Budgment is void"

#side from the 45ce of the olicitor $eneral, all other indispensable parties shouldhave been made respondents" The include not onl the declared father of the childbut the child as well, together with the paternal grandparents, if an, as theirhereditar rights would be adversel aected thereb" #ll other persons who ma beaected b the change should be notiCed or represented" The truth is bestascertained under as adversar sstem of 'ustice"

/epublic 6s. 8arcoG/ o. 123(-,; 7anuar& 23; 233%

• *adina, with the written conformit of #rmando, petitioned for the correction of thebirth record of her daughter Bune to change her surname from )aravilla to $ustilo Bune’s father from 3rancisco )aravilla to #rmando $ustilo" 7arco, mother of #rmando’s other illegitimate daughter, )ar Bo, was not impleaded"

• Is 7arco an indispensable partK

:1



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• 7arco is among the parties referred to in ec , Aule 1+" Eer interest was aected bthe petition for correction as an 'udicial determination that Bune was daughter of #rmando would aect her ward’s share in the estate of her father"

• Is *adina’s failure to implead 7arco fatalK

• The defect is cured b compliance with ection :, Aule 1+D, which re!uires notice bpublicationX

• The purpose precisel of ection :, Aule 1+D is to bind the whole world to thesubse!uent 'udgment on the petition" The sweep of the decision would cover evenparties who should have been impleaded under ection , Aule 1+D, but wereinadvertentl left out"

• It cannot be established whether *adina 8new of )ar Bo’s e(istence at the time sheCled the petition for correction" The fact that *adina amended her petition to include3rancisco and $ustilo indicates earnest eorts on her part to compl with ection "

That was in .++:" Ta8e note that in &abao-Aowe vs" Aepublic 61;DD<, failure toimplead is fatal" In 7arco 6.++:< the failure was cured b publication" Pagdatingnaman sa 2eruila vs =elantarL

!eruila 6s. =elantarG/ o. 1%3"3(; =ecember 0; 233(

3actsL )aria Aosln Telin =elantar was the child victim in the rape case involving Aomeo Balos'os" #fter she was involuntaril committed to the care and custod of the =9=, apetition for the cancellation of her simulated birth certiCcate was Cled b spouses Platon and&ibrada 2eruila, without impleading her or =9=" Publication was made and summons wassent to the 2ivil Aegistrar but not to Aosiln" The published order states “an person who isinterested in the petition ma interpose hisJher comment or opposition thereto on or beforethe scheduled hearing" NalidK

=id the publication cure the failure to implead and serve notice on AosilnK *4

EeldL Indeed, not onl the civil registrar but also all persons who have or claim an interestwhich would be aected b a proceeding concerning the cancellation or correction of anentr in the civil register must be made parties thereto" #s enunciated in Aepublic v"7enemerito, unless all possible indispensable parties were dul notiCed of the proceedings,the same shall be considered as falling much too short of the re!uirements of the rules"Eere, it is clear that no part could be more interested in the cancellation of AosilnZs birthcertiCcate than Aosiln herself" Eer Cliation, legitimac, and date of birth are at sta8e"

/epublic 6s. KhoG/ o. 1,3"%3; 7une 20; 233,

• 7irth certiCcates of minor children were sought to be corrected to, among others,correct the mother’s name from )aribel to )arivel and the date of marriage"&i8ewise, birth records of ho siblings were also sought to be corrected to change thecitiFenship of their mother 6@pifania< from 2hinese to 3ilipino and to delete the word“married"” @pifania as well as )arivel were not impleaded nor served notice"

• EeldL Publication of the order of hearing under ection : of Aule 1+D cured the failureto implead an indispensable part" 67arco vs" 2#, :?0 Phil ;, ?1 6.++:<<"

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• There is no dispute that the trial courtZs 4rder setting the petition for hearing anddirecting an person or entit having interest in the petition to oppose it was postedas well as published for the re!uired period that notices of hearings were dul servedon the olicitor $eneral, the cit prosecutor of 7utuan and the local civil registrarand that trial was conducted on Banuar 1, .++. during which the public prosecutor,

acting in behalf of the 4$, activel participated b cross-e(amining 2arlito and@pifania"

• It ma not be amiss to mention, however, that during the hearing on Banuar 1,.++., the cit prosecutor who was acting as representative of the 4$ did not raisean ob'ection to the non-inclusion of )arivel and 2arlitoZs parents as parties to theproceeding"

• Parentheticall, it seems highl improbable that )arivel was unaware of theproceedings to correct the entries in her childrenZs birth certiCcates, especiall sincethe notices, orders and decision of the trial courtwere all sent to the residence sheshared with 2arlito and the children"

• =ate of marriage of 2arlito and )arivel, their certiCcate of marriage.0 shows thatindeed the were married on Banuar .1, .+++, not on #pril .>, 1;D;" @(plaining theerror, 2arlito declared that the date \#pril .>, 1;D;\ was supplied b his helper,adding that he was not married to )arivel at the time his sons were born because hisprevious marriage was annulled onl in 1;;;".? $iven the evidence presented brespondents, the 2# observed that the minors were illegitimate at birth, hence, thecorrection would bring about no change at all in the nature of their Cliation"

• 2arlitoZs mother, it bears noting that she declared at the witness stand that she wasnot married to Buan ho who died in 1;0;" #gain, that testimon was not challengedb the cit prosecutor"

/epublic 6s. Lusagna&D@&G/ o. 103313; August 12; 231"

actsJ Aespondent’s birth record shows that her full name is #nita , that she is a 2hinesecitiFen and a legitimate child of Ton and 4tera&usagna" he Cled a petition forcorrection of her Crst name and surname, her status from legitimate to illegitimate and hercitiFenship from 2hinese to 3ilipino" he, however, onl impleaded and notiCed the &ocal2ivil Aegistrar and failed to implead and notif her parents and siblings"

eldJ The fact that the notice of hearing was published in a newspaper of generalcirculation and notice thereof was served upon the tate will not change the nature of theproceedings ta8en" # reading of ections : and 0, Aule 1+D of the Aules of 2ourt shows thatthe Aules mandate two sets of notices to dierent potential oppositorsL one given to the

persons named in the petition and another given to other persons who are not named in thepetition but nonetheless ma be considered interested or aected parties" ummons must,therefore, be served not for the purpose of vesting the courts with 'urisdiction but to complwith the re!uirements of fair pla and due process to aord the person concerned theopportunit to protect his interest if he so chooses"

It is clear from the foregoing discussion that when a petition for cancellation or correction of an entr in the civil register involves substantial and controversial alterations, includingthose on citiFenship, legitimac of paternit or Cliation, or legitimac of marriage, a strictcompliance with the re!uirements of Aule 1+D ofthe Aules of 2ourt is mandated" If the

:



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entries in the civil register could be corrected or changed through mere summarproceedings and not through appropriate action wherein all parties who ma be aected bthe entries are notiCed or represented, the door to fraud or other mischief would be setopen, the conse!uence of which might be detrimental and far reaching"

!ases 5here the failure to implead and notif& the aEected or interested parties

ma& be cured b& the publication of the notice of hearingJ1. earnest eEorts 5ere made b& petitioners in bringing to court all possible

interested partiesC 9!ase of 8arco:2. 5here the interested parties themsel6es initiated the corrections

proceedingsC". 5hen there is no actual or presumpti6e a5areness of the eHistence of the

interested partiesC or 9!ase of 8arco:%. 5hen a part& is inad6ertentl& left out.

It is clear from the foregoing discussion that when a petition for cancellation or correction of

an entr in the civil register involves substantial and controversial alterations, including

those on citiFenship, legitimac of paternit or Cliation, or legitimac of marriage, a strict

compliance with the re!uirements of Aule 1+D of the Aules of 2ourt is mandated" If theentries in the civil register could be corrected or changed through mere summar

proceedings and not through appropriate action wherein all parties who ma be aected b

the entries are notiCed or represented, the door to fraud or other mischief would be set

open, the conse!uence of which might be detrimental and far reaching"

o ta8e noteL If the correction is substantial in nature such as one aecting

citiFenship, legitimac of paternitJa5liationJmarriage, strict compliance of the

re!uirements of A1+D is mandated" Qou have to implead"

3orm of the petitionL NeriCed

#enue

• AT2 of the province where the corresponding civil registr is located

Qou Cle it in the place where our birth record or entr is 8ept in the &2A" o if

ou’re in =avao and our record is registered in 2ebu, ou Cle it in the AT2 of

2ebu because ou need to implead the &2A"#s opposed to a change of name under A1+, 8ahit ang records mo nasa Bolo

at dito 8a resident sa =avao, pwede mo iCle sa =avao"

ature of the proceeding

• ummar 3or correction of clerical or innocuous errors

#s earl as 1;0+’s, the 2 decided in the case of T ong Tin vs" Aepublic$A &-0?+; that the nature of the correction of clerical or innocuous errorsunder A1+D is summar in nature" 2lerical, tpographical errors lang"

• #dversarial 3or correction of substantial errors aecting civil status, citiFenship or

nationalit of a part

7ut in 1;D? in the decided case of Aepublic vs" Nalencia $A &-.1D1, it isno longer summar but adversarial if the correction sought is substantialerrors"

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Page | :0

Eowever, with the advent of A# ;+:D as well as A# 1+1>., 2ongress had ta8en outthe ummar Proceeding from A1+D because tpographical or clerical error is nowremoved from 'udicial proceedings under A1+D and is now vested in the &2A underthe administrative correction of clerical errors"

What ma& be changed or corrected

• #rticle :+> 2ivil 2ode #cts, events and 'udicial decrees concerning the civil status of persons shall

be recorded in the civil register"• #ct :+D 2ivil 2ode

61< 7irths 6.< marriages 6< deaths 6:< legal separations 60< annulments of

marriage 6?< 'udgments declaring marriages void from the beginning 6><

legitimations 6D< adoptions 6;< ac8nowledgments of natural children 61+<

naturaliFation 611< loss, or 61.< recover of citiFenship 61< civil interdiction

61:< 'udicial determination of Cliation 610< voluntar emancipation of a minor

and 61?< changes of name"

$an !o 6s. !i6il /egister of anila;G/ o. 1"-%0); ebruar& 2"; 233%

• )a birth records be corrected on the basis of the father’s naturaliFation obtainedafter registration of the children’s birthK

Qes" The petitioner’s recourse to Aule 1+D of the Aules of 2ourt, as amended, isappropriate" Gnder #rticle :1. of the *ew 2ivil 2ode, no entr in a civil register shallbe changed or corrected without a 'udicial order" The law does not provide for aspeciCc procedure of law to be followed" 7ut the 2ourt approved Aule 1+D of the

Aules of 2ourt to provide for a procedure to implement the law" The entries envisagedin #rticle :1. of the *ew 2ivil 2ode are those provided in #rticles :+> and :+D of the*ew 2ivil 2ode"

• peciCc matters covered b the said provision include not onl status but alsonationalit" The acts, events or factual errors envisaged in #rticle :+> of the *ew 2ivil2ode include even those that occur after the birth of the petitioner" Eowever, in suchcases, the entries in the certiCcates of birth will not be corrected or changed" Thedecision of the court granting the petition shall be annotated in the certiCcates of birth and shall form part of the civil register in the 45ce of the &ocal 2ivil Aegistrar"

• To correct simpl means to ma8e or set aright to remove the faults or error from" Tochange means to replace something with something else of the same 8ind or withsomething that serves as a substitute" #rticle :1. of the *ew 2ivil 2ode does not!ualif as to the 8ind of entr to be changed or corrected or distinguished on thebasis of the eect that the correction or change ma be"1 uch entries include notonl those clerical in nature but also substantial errors" #fter all, the role of the 2ourtunder Aule 1+D of the Aules of 2ourt is to ascertain the truths about the factsrecorded therein"

/epublic 6s. !agandahan

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Page | :?

G/ o. 1))),); September 12; 233-

• =oes Aule 1+D allow change of se( or gender in the birth certiCcate b reason of 2ongenital #drenal Eperplasia 62#E< which is a condition where persons thusaHicted posses both male and female characteristicsK

Qes" Gnder Aep" #ct *o" ;+:D, a correction in the civil registr involving the change of se( is not a mere clerical or tpographical error" It is a substantial change for whichthe applicable procedure is Aule 1+D of the Aules of 2ourt"

• Gltimatel, we are of the view that where the person is biologicall or naturallinterse( the determining factor in his gender classiCcation would be what theindividual, li8e respondent, having reached the age of ma'orit, with good reasonthin8s of hisJher se(" Aespondent here thin8s of himself as a male and consideringthat his bod produces high levels of male hormones 6androgen< there ispreponderant biological support for considering him as being male" e(ualdevelopment in cases of interse( persons ma8es the gender classiCcation at birthinconclusive" It is at maturit that the gender of such persons, li8e respondent, isC(ed"

This was before A# 1+1>. that too8 eect last Banuar .+1 which now allowschanging the se( provided there is no se( reassignment" In this case, thepetitioner is a hermaphrodite" It 'ust so happens that as he grew up, ung nagmanifest na dominant se( nia iba doon sa naregister sa 8anang birthrecord" 2 said that is allowed for correction because there was noreassignment" 7ut had 2agandahan petition for his birth record after theenactment of A# 1+1>., then that would have been entertained 8asi walanamang se( reassignment"

8raa 6s. !it& !i6il /egistrarG/ o. 1-11,%; =ecember %; 2330

• 'etition for !orrection of >ntries pra&s as follo5sJ

61< the correction of the entries in Patric8Zs birth record with respect to hislegitimation, the name of the father and his ac8nowledgment, and the use of the lastname \7raFa\.< a directive to &eon, 2ecilia and &ucille, all surnamed Titular, as guardians of theminor Patric8, to submit Paric8 to =*# testing to determine his paternit and Cliationand < the declaration of nullit of the legitimation of Patric8 as stated in his birthcertiCcate and, for this purpose, the declaration of the marriage of &ucille and Pabloas bigamous"

• In a special proceeding for correction of entr under Aule 1+D 62ancellation or2orrection of @ntries in the 4riginal Aegistr<, the trial court has no 'urisdiction tonullif marriages and rule on legitimac and Cliation"

• Aule 1+D of the Aules of 2ourt vis a vis #rticle :1. of the 2ivil 2ode10 charts theprocedure b which an entr in the civil registr ma be cancelled or corrected" Theproceeding contemplated therein ma generall be used onl to correct clerical,spelling, tpographical and other innocuous errors in the civil registr" # clerical erroris one which is visible to the ees or obvious to the understanding an error made ba cler8 or a transcriber a mista8e in coping or writing, or a harmless change such asa correction of name that is clearl misspelled or of a misstatement of the occupation

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Page | :>

of the parent" ubstantial or contentious alterations ma be allowed onl inadversarial proceedings, in which all interested parties are impleaded and dueprocess is properl observed"

• It is well to emphasiFe that, doctrinall, validit of marriages as well as legitimac of and Cliation can be !uestioned onl in direct action seasonabl Cled b the proper

part, and not through collateral attac8 such as the petition Cled before the court a!uo"

@(act opposite happened in the case ofL

!oncepcion 6s. !AG/ o. 12"%(3; August "1; 233(

• divorce e(tend to the cancellation entr 6of marriage< in the &ocal 2ivil AegistrK

*o" # petition for recognition of a foreign 'udgment is not the proper proceeding,contemplated under the Aules of 2ourt, for the cancellation of entries in the civilregistr"

• )ust separate proceedings be instituted for recognition of foreign of foreign divorcedecree and for cancellation of entr under Aule 1+DK

*o" 9e hasten to point out, however, that this ruling should not be construed as

re!uiring two separate proceedings for the registration of a foreign divorce decree inthe civil registr - one for recognition of the foreign decree and another speciCcallfor cancellation of the entr under Aule 1+D of the Aules of 2ourt"

• 3oreign divorce decree ma be 'udiciall recogniFed under Aule 1+D"

• Provided the basic 'urisdictional re!uirements under Aue 1+D of the Aules of 2ourt arecomplied with, i" e, veriCed petition Cled with the AT2 of the province where thecorresponding civil registr is located, the civil registrar and all persons who have orclaim an interest are made parties to the proceeding, and publication of the timeand place for hearing in a newspaper of general circulation"

• The recognition of the foreign divorce decree ma be made in a Aule 1+D proceeding

itself, as the ob'ect of special proceedings 6such as that in Aule 1+D of the Aules of 2ourt< is precisel to establish the status or right of a part or a particular fact")oreover, Aule 1+D of the Aules of 2ourt can serve as the appropriate adversarialproceeding b which the applicabilit of the foreign 'udgment can be measured andtested in terms of 'urisdictional inCrmities, want of notice to the part, collusion,fraud, or clear mista8e of law or fact"

If our ultimate goal is to cancel the marriage certiCcate b virtue of the foreigndivorce decree, ou Cle a petition under A1+D with a praer for the court to

:>



Page | :;

Eow about the fact that she being the mother of the child is entitled to noticeKhe was impleaded" Gnli8e 7arco na hindi talaga naimplead ung nana ngillegitimate child 8asi hindi nia alam" In this case, na implead ung nana, hindilang tama ung address" o was the failure to serve notice fatalK

• The service of the order at *o" :1D #r!uiFa t", @rmita, )anila and the publication

thereof in a newspaper of general circulation in )anila, su5cientl complied with there!uirement of due process, the essence of which is an opportunit to be heard" aidaddress appeared in the birth certiCcate of petitioner minor as the residence of #rmi"2onsidering that the 2ertiCcate of 7irth bears her signature, the entries appearingtherein are presumed to have been entered with her approval" )oreover, thepublication of the order is a notice to all indispensable parties, including #rmi andpetitioner minor, which binds the whole world to the 'udgment that ma be renderedin the petition"

o do not confuse this with &usagna-G and the case of 7arco whereinindispensable parties were not impleaded" In this case, failure to serve noticeon an impleaded part is not fatal because that was cured b the publicationof the notice"

• #n in rem proceeding is validated essentiall through publication"The absence of personal service of the order to #rmi was therefore cured b the trial court’scompliance with ection :, Aule 1+D"

• The purpose precisel of ection :, Aule 1+D is to bind the whole world to thesubse!uent 'udgment on the petition" The sweep of the decision would cover evenparties who should have been impleaded under ection , Aule 1+D, but wereinadvertentl left out"

!eruila 6s. =elantarG/ o. 1%3"3(; =ecember 0; 233(

2an ou argue in this case that the publication of the notice cured the defect of thefailure to serve a cop of the petition on AosilnK

• It is not enough that Aosiln’s name was included in the caption of the petition, shemust also be served notice of the petition"

• Publication of the order of the trial court setting the case for hearing did not cure thenon-service to Aosiln" ummons must still be served, not for the purpose of vestingthe courts with 'urisdiction, but to compl with the re!uirements of fair pla and dueprocess" This is but proper, to aord the person concerned the opportunit to protecther interest if she so chooses"

• Indeed, there were instances when we ruled that even though an interested part

was not impleaded in the petition, such defect was cured b compliance with ec" :,Aule 1+D on publication" In said cases, however, earnest eorts were made b thepetitioners in bringing to court all possible interested parties"

• uch is not the case at bar" Aosiln was never made a part at all to the proceedingssee8ing the cancellation of her birth certiCcate" *either did petitioners ma8e aneort to summon the olicitor $eneral"

:;



Page | 0+

Ta8e note, Aosiln and her guardian =9= were never impleaded that’s whpublication did not cure the defect"

#nd this one does not fall under the e(ceptions, ung earnest eorts etc" etcX

4pposition

• 9ho ma opposeK 2ivil Aegistrar #n person having or claiming an interest in the entr sought to be

cancelled or corrected• 9hen to opposeK

9ithin 10 das from notice of petition or from the last date of publication

6ec0, Aule 1+D<

$5o potential oppositors 2 distinguished the two potential oppositors under A1+Dand the 8inds of notices that must be given on these categories of oppositors"

• To persons named in the petition *ot served personall

Eas 10 das from notice to Cle opposition 6ec 0<• To other persons who are not named in the petition but nonetheless ma be

considered interested or aected parties, such as creditors *otice served b publication Eas 10 das from last publication to Cle opposition 6Aepublic vs" 2oseteng-

)agpao, $A *o" 1D;:>?, 3ebruar ., .+11<

Eow do ou 8now that a person is an indispensable partK upposing that an

indispensable part was not mentioned in the petition therefore that part cannot

be served personall" 9ill that notice on the non-impleaded indispensable part be

cured b publicationK 7ecause the are not named in the petition" &et’s go bac8 to

&usagna-G" If the correction is substantial in nature 6citiFenship, legitimac of paternit or marriage, etc< failure to implead and failure to serve notice personall

is fatal" That is wh publication will not cure"

Eow do ou determine now whether a person must be personall served notice and

is considered an indispensable partK Tignan mo ano ang correction nanK ung

ang correction is citiFenship of the parents, sino ang pina8a aected, edi an parents"

The are now indispensable parties" ung an parents na an ma mga ana8 at

aected sila sa ano na an, the are also indispensable parties" o lahat ilaga mo

so that there will be no issue on the failure to implead an indispensable part which

ma not be cured b publication and which ma cause or 'eopardiFe the petition

later and render the proceedings void"

!ourt actions

• @(pedite proceedings 6ecD, Aule 1+D<

• $rant preliminar in'unction to preserve parties’ rights pending the proceeding 6Id<

• =ismiss or grant the petition, furnishing a certiCed true cop of the 4rder to the 2ivil

Aegistrar who shall annotate the order in his record 6ec >, Aule 1+D<

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Page | 0.

2lerical or tpographical error or mista8e in the entr

- In the da and month in the date of birth If it involves the ear itself,8asi ung age mo aected na, hindi na pwede" Qou have to go tocourt" That is not covered b A# 1+1>."

- e( or gender of a person 6ec 1< 2lerical error must be patentl clear

2an ou consider an error pertaining to nationalit, age, status, or se( as merelclericalJtpoK *ot anmore under A# ;+:D" 7ut under A# 1+1>., pwede ang se("

Scope of corrections

• A# ;+:D now governs the change of Crst name" It vests the power and authorit toentertain petitions for change of Crst name to the cit or municipal civil registrar orconsul general concerned" Gnder the law, therefore, 'urisdiction over applications forchange of Crst name is now primaril lodged with the aforementioned administrativeo5cers"

The intent and eect of the law is to e(clude the change of Crst name from thecoverage of Aules 1+ 62hange of *ame< and 1+D 62ancellation or 2orrection of @ntries in the 2ivil Aegistr< of the Aules of 2ourt, until and unless an administrativepetition for change of name is Crst Cled and subse!uentl denied" It li8ewise lasdown the corresponding venue,1? form1> and procedure" In sum, the remed andthe proceedings regulating change of Crst name are primaril administrative innature, not 'udicial" 6ilverio vs" Aepublic<

• It ma be ver well said that Aepublic #ct *o" ;+:D is 2ongressZ response to theconfusion wrought b the failure to delineate as to what e(actl is that so-calledsummar procedure for changes or corrections of a harmless or innocuous nature asdistinguished from that appropriate adversar proceeding for changes or correctionsof a substantial 8ind" 3or we must admit that though we have constantl referred toan appropriate adversar proceeding, we have failed to categoricall state 'ust whatthat procedure is" Aepublic #ct *o" ;+:D now embodies that summar procedurewhile Aule 1+D is that appropriate adversar proceeding" 7e that as it ma, the caseat bar cannot be decided on the basis of Aepublic #ct *o" ;+:D which has prospectiveapplication" Eence, the necessit for the preceding treatise" 6&ee vs" 2#<

!hange of +rst name

• Grounds!onditions 9Sec %; /A 03%-:

61< The petitioner Cnds the Crst name or nic8name to be ridiculous, tainted withdishonor or e(tremel di5cult to write or pronounce"

6.< The new Crst name or nic8name has been habituall and continuousl used bthe petitioner and he has been publicl 8nown b that b that Crst name or nic8namein the communitL or

6< The change will avoid confusion.

• SeH reassignment N in6alid ground

Petitioner’s basis in praing for the change of his Crst name was his se(reassignment" Ee intended to ma8e his Crst name compatible with the se( hethought he transformed himself into through surger" Eowever, a change of name does not alter one’s legal capacit or civil status" A# ;+:D does not

0.



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sanction a change of Crst name on the ground of se( reassignment" Aatherthan avoiding confusion, changing petitioner’s Crst name for his declaredpurpose ma onl create grave complications in the civil registr and thepublic interest" 6ilverio vs" Aepublic<

2 said in this case that our se( is actuall part of our status and it is

determined at birth and the one who declares what our se( is is the onewho assisted in our deliver" Qung mga doctor, comadrona na nagpaana8sa nana mo, ung ang re!uired b law to declare ano ung se( mo" #nd if the stated our se( is male and later on ou underwent se(reassignment at gusto mo ng papalitan ng female, 2 said di pwede" #ngmagpreprevail is the one declared b the person re!uired to declare atour birth as to what our se( is" #nd for matters of public polic, 2 saidthat if ou allow a change of name or change of se( in the birth record bvirtue of se( reassignment, that is a precursor to allowing same se(marriage" asi regardless of what surgical procedure to change our se(,the fact remains that ou were born male" #nd if later on ou caused thecorrection, naging female 8a na, para mo na ring inallow ang same se(

marriage" #nd there is still no law allowing same se( marriage"

Who ma& +le

• 2hange of name, clerical error in da and month of birth, other clerical errors #n person having direct and personal interest in the correction of a clerical or

tpographical error in an entr andJor change of Crst name or nic8name in thecivil register ma Cle the petition 6ec , A# ;+:D, Aule IAA<

9hen a person is a minor or phsicall and mentall incapacitated, thepetition ma be Cled on his behalf b his spouse, or an of his children,parents, brothers, sisters, grandparents, guardians or persons dul authoriFedb law"

“Person having direct and personal interest”

- 4wner of the record or

-4wner’s spouse, children, parents, brothers, sisters, grandparents,guardians or persons dul authoriFed b law or

- 4wner of the document sought to be corrected" 6ec , A# ;+:D Aule, IAA<

- Person aected b the error 6Aule ". IAA< Eindi pwede ang spouse,ana8, relative, grandparents, etc"

orm of the petition

• in the form of an a5davit,

• subscribed and sworn to before an person authoriFed b the law to administeroaths"

• set forth facts necessar to establish the merits of the petition and shall show

a5rmativel that the petitioner is competent to testif to the matters stated"• state the particular erroneous entr or entries, which are sought to be corrected

andJor the change sought to be made" 6ec 0, A# ;+:D Aule D, IAA<

anner of +ling

• Personal Cling 6ec , A# ;+:D Aule D IAA<

=ocket fees

• 2ivil Aegistrar

0



Page | 0:

P1,+++ for correction of clerical error P,+++ for change of Crst name, correction of se(, correction of da and

month of birth• 2onsul $eneral

0+ for correction of clerical or tpographical error 10+ for correction of Crst name, correction of se(, correction of da and

month of birth• #n indigent person shall be e(empt from the pament of the Cling fees

Ser6ice fees

• Petition Aeceiving 2ivil Aegistrar 6PA2A< P0++ for correction of clerical or tpographical error P1,+++ for change of Crst name, correction of se(, correction of da and

month of birth

Where to +le

• 2hange of Crst name, error in da and month of birth Aesident petitioner

9ith the &2A4 of the cit or municipalit or with the 45ce of the 2ler8 of theharia 2ourt, as the case ma be, where the record is registered 6ec , A#;+:D Aule :, IAA<

)igrant petitioner9ith the petition receiving civil registrar of the palce where the migrantpetitioner is residing or domiciled"

*on-resident petitioner9ith the nearest Philippine 2onsulate for persons whose civil registr recordwas registered in the Philippines, or in an Philippine @mbass

• @rror in se( 9ith the 2J)2A of the cit or municipalit or the Philippine 2onsulate, as the

case ma be, where the record is registered 6Aule :". IAA<

Attachments to the petition• 2ertiCed machine cop of the certiCcate containing the alleged erroneous entr or

entries• *ot less than . public or private documents upon which the correction shall be based

• *otice and 2ertiCcate of Posting

• 2ertiCed machine cop of 45cial Aeceipt of the Cling fee

• 4ther documents as ma be re!uired b the 2itJ)unicipal 2ivil Aegistrar 62J)2A<6ec 0, A# ;+:D, Aule D, IAA<

• #dditional attachments for petition for change of name 6A# ;+:D, Aule D, D". IAA< 2learance or certiCcation that owner of document has no pending

administrative, civil or criminal case, or no criminal record, b the followingL

- @mploer, if emploed

-

*ational 7ureau of Investigation- Philippine *ational Police

#5davit of publication from the publisher and a cop of the newspaperclipping

o ta8e noteL In petition for change of 3irst *ame, publication innewspaper of general circulation is re!uired" In other cases, posting inconspicuous public places is re!uired"

#dditional attachments under A# 1+1>.L )edical records

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7aptismal certiCcate or other documents issued b religious authorities 3or correction of se( % 2ertiCcation b a government phsician attesting to the

fact of non-se( transplant or non-se( change

!opies of the petition

• copies to be distributed as followsL

To the concerned cit or municipal civil registrar or consul general To 45ce of the 2ivil Aegistrar $eneral To the petitioner

• The 2J)2A, 2$ or =J2A shall not accept a petition unless all re!uirements andsupporting documents are complied with

'osting and publication

• Posting Aesident petitioner

- In a conspicuous place provided for that purpose

- 3or 1+ consecutive das after favorable assessment )igrant petitioner

-

45ce of the PA2A for 1+ consecutive das- 45ce of the A2A for another 1+ das

*on-resident petitioner

- 9here petition is Cled and where record is 8ept

• Publication #dditional re!uirement for the change of Crst name Aesident petitioner

- 4nce a wee8 for . successive wee8s in newspaper of generalcirculation

)igrant petitioner

- Publication is made in a national newspaper *on-resident petitioner

-

9here petition is Cled and where record is 8ept

=uties of !i6il /egistrar

• @(amine the petition and conduct investigation

• Post petition in a conspicuous place for 1+ consecutive das after Cnding it and itssupporting documents su5cient in form and substance

• #ct on the petition and render decision not later than 0 wor8ing das aftercompletion of posting andJor publication re!uirement

• Transmit cop of decision together with records the proceedings to the 42A$ within 0wor8ing das after the date of decision

• Perform such other duties and functions as ma be necessar to carr out theprovisions of A# ;+:D 6ec ?, A# ;+:D Aule 1+, IAA<

=ecision

• 7ecomes Cnal and e(ecutor if not impugned b the 2ivil Aegistrar $eneral

• 2hange shall be reMected in the birth certiCcate b wa of marginal annotation

• 3inal decision approving change of Crst name su5cient basis in changing the Crstname of the same person in his other aected records without need for Cling asimilar petition

00



Page | 0?

o if the Crst name has been changed in the birth record of that petitionerand it so happened na ma iba pang birth record, ung petitioner na un maiba pang mga ana8 at na8arecord din, ung decision na on will be enoughbasis to change the Crst name of that person in the other records" *o need toCle a separate petition to cause the correction of the other records"

• Petitioner needs onl to Cle a re!uest with the concerned civil registrar to ma8e such

marginal annotation attaching thereto a cop of the decision 6Aule 1. IAA<

=enial of the 'etitionC Grounds

• The supporting documents are not authentic and genuine"

• The 2J)2A has personal 8nowledge that a similar petition is Cled or pending in courtor in an other &2A4"

• The petition involves the same entr in the same document, which was previouslcorrected or changed under this 4rder"

• The petition involves the change of the status, se(, age or nationalit of thepetitioner or of an person named in the document"

• uch other grounds as the 2J)2A ma deem not proper for correction"

• In the case of petition for change of Crst name or nic8name, an of the grounds

provided in ec : of Aa ;+:D are not present in addition to the above-mentioned6Aule 0, 0"D IAA<

=enial of the 'etitionC /emedies

• appeal the decision to the 2A$ within ten 61+< wor8ing das from the receipt of thedecision on the following groundsL

*ewl discovered evidence which shall materiall aect, alter, modif orreverse the decision of the 2J)2A

denial of the 2J)2A is erroneous or not supported with evidence denial of the 2J)2A is done with grave abuse of authorit or discretion 2A$ shall render a decision within + calendar das after receipt of the appeal

and shall furnish the 2J)2A, 2$ or =J2A a cop of the decision not later than

1+ wor8ing date after date of decision• 3ile the appropriate petition with the proper court

)a be Cled even beond period to appeal 6Aule 1 and 1: IAA<

9e said earlier that the civil registrar will forward the decision to the 2ivil Aegister

$eneral within 0 das" 9hat will he do upon the forwarding of the decisionK Ee can

impugn it"

When decision impugned

• 9ho ma impugnK 6Aule 10 IAA< 2A$

• 9hen to impugnK 6Aule 10 IAA< 9ithin 1+ wor8ing das from receipt of decision granting decision

o the impugning presupposes that the decision was granted" If the petition hasbeen denied, the remed is to appeal to the 2A$ within 1+ wor8ing das" 7ut ifgranted, that decision is forwarded to the 2A$ and he has the right to impugn thedecision of the &2A within 1+ wor8ing das"

• @ect of failure to impugn decision 6Aule 1? IAA< 3ile )A within 10 wor8ing das from receipt of decision on the ground of newl

discovered evidence

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Page | 0>

- 2A$ shall resolve the )A within + wor8ing das, thereafter thedecision becomes Cnal and e(ecutor

3ile separate petition in court

/etroacti6it& of the la5

• Aules shall have retroactive eect in so far as it does not pre'udice or impair vestedor ac!uired rights in accordance with the 2ivil 2ode and other laws 6Aule .1 IAA<

In /eJ 7udicial Audit /$! ),A o 3)D,D%1%D/$!; 4ctober 10; 233,

Eere the court applied the provisions of A# ;+:D for petitions for change of name orcorrection of entries Celd before the court without hearing and publication" hinortcut na because he followed A# ;+:D"

• )a the court appl A# ;+:D for petitions for name change or correction of entries,without hearing and publication re!uirementsK

• *o" ince A"#" *o" ;+:D refers speciCcall to the administrative summar proceedingbefore the local civil registrar it would be inappropriate to appl the same procedureto petitions for the correction of entries in the civil registr before the courts" Inother words, ou do not appl the procedure under A# ;+:D for proceedingsunder A1+D 8asi 'udicial un eh" )ag8aiba ang 8anilang procedure" Qoucannot use A# ;+:D procedure under a petition for correction under A1+D" The promulgation of rules of procedure for courts of 'ustice is the e(clusive domain of the upreme 2ourt"

• Thus, there should be recourse to the procedure prescribed for the courts as if A"#"*o" ;+:D were not enacted at all" In other words, the procedure provided in the

Aevised Aules of 2ourt for such petitions remains binding and should be followed bthe courts" The procedural re!uirements laid down in Aules 1+ and 1+D still have tobe complied with"

0>



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0D



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/@L> 0- $/@S$>>S

inds of Trustee Gnder Aule ;D

• Trustee under will 6ec" 1 R .<

• Trustee under written instrument 6ec <

• Trustee appointed abroad 6ec :<

Trustee under will

@(ampleL 9here b the provision of the will, a certain propert shall be 8ept togetherundisposed during a C(ed period and for a stated purpose" 6&orenFo v" Posadas<

when the will provides for that, in eect there is a trust created"

9ho ma Petition

• @(ecutor

• #dministrator

• Person appointed as trustee under a will

o ta8e note that if the will creates a trust or trustee under will then the one whowill administer the trust is not necessaril the e(ecutor" 7ecause there is a need topetition the court for the appointment of the trustee unless the will itself speciCcallnames the e(ecutor as the trustee"

9ho ma #ppointK

• Probate 2ourt that allowed a will

• AT2 of place where propert or a portion thereof is located

9hen allowedK

• Testator omits to appoint a trustee in the Philippines

0;



Page | ?+

• 9hen it is necessar to carr into eect the provisions of a will

Procedure

• 3iling of Petition

• *otice to all persons interested

•

#ppointment of Trustee

Powers of trustee

• same rights, powers, and duties, and

• in whom the estate shall vest,

• as if he had been appointed b the testator

• Trustee’s e(ecutor or administrator when named as successor to the trust is notre!uired to accept such trust"

Trustee under written instrument

• #ppointed or named in a written instrument creating a trust

• 9ritten instrument ma be in a form of an inoperative will

Qou can still petition for the appointment of a trustee" Gnder written instrument, theinoperative will"

9hen 2ourt ma #ppointK

• 9hen a trustee under a written instrument declines, resigns, dies, or is removed

• before the ob'ects of the trust are not et accomplished, and

• no ade!uate provision is made in such instrument for suppling the vacanc 6ec ,Aule ;D<

Procedure

• 3iling of petition


• #ppointment of new trustee 6ec , rule ;D<

AightsJ=uties of *ew trustee

• shall have and e(ercise the same powers, rights, and duties as if he had beenoriginall appointed

• trust estate shall vest in him

• right to conveance of propert in trust from the former trustee or his representativeor b the remaining trustees as ma be ordered b the court 6ec , Aule ;D<

o he can have possession of the propert sub'ect of the trust, from the previous orrepresentative"

Trustee #ppointed #broad

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Page | ?1

• Trustee derives his authorit from without the Philippines concerning land located inthe Philippines in trust for Philippine residents"

• Ae!uires 'udicial appointment from the court before he can e(ecute the trust

It contemplates a situation where the trustee is appointed abroad" )a propertdito, in trust for philippine residents, the onl foreign element here is the

appointment of trustee abroad"

Procedure

• 3iling of petition in the AT2 where land is located


• 2ourt orders the trustee to appl to the court for appointment as trustee

• In case of non-compliance, court shall declare the trust vacant and shall appoint anew trustee

o it doesnt follow that 'ust because the trustee appointed abroad had failed toappl then the petition would be rendered moot and academic or nugator becausethe court can alwas apoint a new trustee"

Provisions 2ommon to all

Trustees 7ond

• 3i(ed b the court

• *on %Cling of the bond has the eect of declining or resigning the trusto @(ceptionL 9hen testator e(empts the trustee form Cling a bond in the will

and all person s beneCciall interested in the trust, being of full age, re!uestthe e(emption"

o @(emption ma be cancelled b the court antime"

2onditions of 7ond^basicall the same as those administrator"

• True inventor of all the real and personal estate belonging to him as trustee, whichat the time of the ma8ing of such inventor shall have come to his possession or8nowledge

o @(ceptionL uccessor Trustee

• )anagement and disposition of all such estate, and faithful discharge of trust

• True accounting at least once a ear, unless e(empted b the court

• ettlement of accounts in court and pa over and deliver all the estate remaining inhis hands upon e(piration of his trust

#ppraisal of @state

• )a be ordered b the court upon return of the inventor and with the assistance of inheritance ta( appraisers

The court can order the valuation the propert sub'ect of the trust with the aid of appraisers, and this happens upon submission of the inventor"

2ompensation 6ec ><

• =etermined from the instrument creating the trust, how much is thecompensation provided"

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Page | ?.

• 4therwise, to be C(ed b the court

Aemoval of Trustee

Procedure

• 3iling of petition b parties beneCciall interested

• *otice to the trustee

• Eearing

• 4rder removing the trustee 6ec D<

$rounds

• Trustee’s removal appears essential in the interests of the petitioners 6&7P vs 2#<

• Trustee is insane

• Trustee is incapable of discharging his trust

• Trustee is unsuitable

Aesignation of Trustee

• ub'ect to court approval

• #cceptance of resignation is not a matter of course, due regard must be had for theinterest of the parties aected and there must be some ground for discharge otherthan the mere wish of the trustee to be relieved

o the trusteee cannot simpl resign without an valid cause, there has to be aserious ground for the discharge other than the mere wish of the trustee"

ale or @ncumbrance of @state

Procedure 6hall conform as nearl as ma be to provisions concerning sale or encumbranceb guardians of propert of minors or other wards<


• *otice

• Eearing

• 4rder allowing the sale or encumbrance and the reinvestment and application of theproceeds in such manner as will best eect the ob'ects of the trust 6ec ;<

$rounds for ale or @ncumbrance

• 9henever necessar or e(pedient

/@L> 13, A8S>$>>S

Aemedies #vailable

• #ppointment of representative

• =eclaration of absence R appointment of trustee or administrator

#ppointment of representative 6ec 1<

Ae!uisites

?.



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• =isappearance from domicile

• Gn8nown whereabouts

• Propert left without agent to administer or the power to administer has e(pired

9ho ma CleK

• Interested part

• Aelative

• 3riend

9here to CleK

• AT2 of the place where absentee last resided

Ta8e note, that the disappearance from the domicile and there is an un8nownelement as to the whereabouts of the person"9hat relief ou can have is merel for the appointment of a representative withrespect to the propert left b the person"

=eclaration of absence R appointment of trustee or administrator 6ec .<

9ho ma CleK

6a< The spouse present6b< The heirs instituted in a will, who ma present an authentic cop of the same6c< The relatives who would succeed b the law of intestac and6d< Those who have over the propert of the absentee some right subordinated to the

condition of his death"

9hen to CleK

•

#fter the lapse of two 6.< ears from his disappearance and without an news aboutthe absentee or since the receipt of the last news,

• #fter the lapse of Cve 60< ears in case the absentee has left a person in charge of the administration of his propert

o one instance, the person left the domicile, whereabouts are un8nown and hasproperties" If the disappearance is less than . earsK =o ou declare for absenceK Qou cannot do that et"

Qou petition for the appointment of a representative, 8asi less than . ears eh"

=eclaration of #bsence

9hen necessar 6Aees vs #le'andro<

• 9hen absentee has properties which have to be ta8en care of or administered b arepresentative appointed b the court 6#rt D: 22<

• #bsentee’s spouse is as8ing for separation of propert 6#rt 1;1, 22<

• #bsentee’s wife is as8ing the court that the administration of all classes of propert inthe marriage be transferred to her 6#rt 1;?, 22, now #rt 1+1, 1.D 32<

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2ommon Provisions

2ontents of Petition

6a< The 'urisdictional facts6b< The names, ages, and residences

a" of the heirs instituted in the will, cop of which shall be presented, and

b" of the relatives who would succeed b the law of intestac6c< The names and residences of creditors and others who ma have an adverse

interest over the propert of the absentee6d< The probable value, location and character of the propert belonging to the

absentee"

Procedure


• Issuance of notice of date and place of hearing

• ervice of notice of hearing

• 9ritten opposition % served on petitioner and other interested parties before hearingdate

• Eearing

• 4rder

*otice how servedK

Ta8e note that the notice re!uirement here is similar to notice re!uirement underrule >? sections and : where ou have to do personal service and ou also haveto resort to publication"

•

Personall upon 8nown heirs, legatees, devisees, creditors and other interestedpersons, at least ten 61+< das before the da of the hearing

• 7 publication once a wee8 for three 6< consecutive wee8s prior to the timedesignated for the hearing, in a newspaper of general circulation in the province orcit where the absentee resides, as the court shall deem best

Proof at hearing

• 2ompliance with notice re!uirements and ade!uatel prove"• Presentation of proof of allegations in the petition

4rder

• 2ourt shallLo ta8e the necessar measures to safeguard the rights and interests of the

absentee ando shall specif the powers, obligations and remuneration of his representative,

trustee or administrator, regulating them b the rules concerning guardians"• 4rder declaring the absentee’s absence shall not ta8e eect until si( 6?< months after

its publication in a newspaper of general circulation designated b the court and inthe 45cial $aFette"

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Page | ?0

It is not onl the notice hearing that needs to be published, but also the ordergranting the petition" #nd the rec8oning period for the eectivit of that order willbe ? months from the publication"

Preference in the #ppointment 6ec ><

1" the spouse present shall be preferred when there is no legal separationo @(ceptionsL *o spouse, spouse is a minor or incompetent

." an competent person

Termination of #dministration 6ec D<

• 2ourt shall issue an order of termination on the following groundsL6a< 9hen the absentee appears personall or b means of an agent6b< 9hen the death of the absentee is proved and his testate or intestate heirs

appear6c< 9hen a third person appears, showing b a proper document that he has

ac!uired the absenteeZs propert b purchase or other title"

2ross-referenceL 3amil 2ode Provisions 6#rt 1+1, 1.D<

#rt" 1+1" If a spouse without 'ust cause abandons the other or fails to compl with his or herobligations to the famil, the aggrieved spouse ma petition the court for receivership, for 'udicial separation of propert or for authorit to be the sole administrator of the absolutecommunit, sub'ect to such precautionar conditions as the court ma impose"

The obligations to the famil mentioned in the preceding paragraph refer to marital, parentalor propert relations"

# spouse is deemed to have abandoned the other when her or she has left the con'ugaldwelling without intention of returning" The spouse who has left the con'ugal dwelling for aperiod of three months or has failed within the same period to give an information as to his

or her whereabouts shall be prima facie presumed to have no intention of returning to thecon'ugal dwelling"

#rt" 1.D" If a spouse without 'ust cause abandons the other or fails to compl with his or herobligation to the famil, the aggrieved spouse ma petition the court for receivership, for 'udicial separation of propert, or for authorit to be the sole administrator of the con'ugalpartnership propert, sub'ect to such precautionar conditions as the court ma impose"

The obligations to the famil mentioned in the preceding paragraph refer to marital, parentalor propert relations"

# spouse is deemed to have abandoned the other when he or she has left the con'ugaldwelling without intention of returning" The spouse who has left the con'ugal dwelling for aperiod of three months or has failed within the same period to give an information as to his

or her whereabouts shall be prima facie presumed to have no intention of returning to thecon'ugal dwelling"_

If a spouse fails to compl with his obligation to the famil, ou have the remed of petitioning the court for receivership, for 'udicial separation of propert or forauthorit to be the sole administrator of the absolute communit or con'ugalpropert"

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• Gnlawful or illegal restraint of libert

• Aestraint must be illegal and involuntar deprivation of freedom of action

• Aestraint of libert must be actual and eective, and not merel nominal or moral6Illusorio vs 7ildner<

• *ot limited to restraint in locomotion or movement

• Aestraint which precludes freedom of action is su5cient

Instances of Gnlawful Aestraint

• 3orcible ta8ing of women from )anila b cit o5cials and depositing them in distantplaces without mone or personal belongings prevented them from e(ercising thelibert of when and where the pleased 6Nillavicencio vs &u8ban<

• Aestrictions attached to the temporar release that limit freedom of movement6)oncupa vs @nrile<

9hen is writ properK

• There is deprivation of constitutional right resulting in the restraint of a person

• The court has no 'urisdiction to impose the sentence or

• #n e(cessive penalt has been imposed, such sentence is void as to the e(cess6#ndal vs People<

Niolation of 2onstitutional Aight

The denial of the accused’s constitutional right ma result in the hearing tribunal’s loss of 'urisdiction to conduct further proceedings" Eabeas corpus would lie to obtain the release of the accused" 6$umabon vs =irector<

@(cessive Penalt

# subse!uent law providing for a lower penalt ma be retroactivel applied to a personserving sentence and, after having served the ma(imum sentence under the new law, saidperson’s release ma be secured through habeas corpus proceedings 6In the matter of #lfredo $" &amen<

9ho ma grant writK

• upreme 2ourt or an member thereof % enforceable anwhere in the Philippines

The issuance of the writ need not be b the collegiate bod, it could be anmember thereof"• 2ourt of appeals or an member thereof in the instance authoriFed b law %

enforceable anwhere in the Philippines

• Aegional Trial 2ourt % enforceable onl within the 'udicial district 6ec .<

7efore whom returnableK

• 2 or 2# % before itself or the AT2o when the 2# issues writ returnable before itself, it must hear and resolve the

case on the merits 64rda vs 2#<

• AT2 % before itself onl 6ec .<

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Page | ?D

7ecause in a petition for habeas corpus, its li8e issue now e(plaim later" 4nce thereis merit in the petition, then the writ will issue, the (planation for the detention willcome in the form of return" #nd that is wh to whom the writ is made returnable"

9ho ma Cle petitionK

•

Person for whose relief the petition is intended, or• ome person on his behalf 6ec <

o )eans an person who has a legall 'ustiCed interest in the freedom of theperson whose libert is restrained or who shows some authoriFation to ma8ethe application

o )a include common-law spouse 6Nelasco vs 2#<

VL )a a guardian Cle petition to gain custod of an incompetent alleged to be abducted bthe latter’s siblingsK

#L Qes, a guardian is entitled to the custod of the ward and so if the ward has been illegalldetained"

EernandeF vs an Buan 6#ugust >, .++;< I*4 I &G&GK[ Eaha

# writ of habeas corpus e(tends to all cases of illegal conCnement or detention or b whichthe rightful custod of person is withheld from the one entitled thereto" Aespondent, as the 'udicial guardian of &ulu, was dut-bound to care for and protect her ward" 3or her to performher obligation, respondent must have custod of &ulu" Thus, she was entitled to a writ of habeas corpus after she was undul deprived of the custod of her ward"

3orm of #pplication

• In the form of petition

• )ust be signed and veriCed 6ec <

#llegationsJ2ontents of Petition

6a< That the person in whose behalf the application is made is imprisoned or restrained of his libert

6b< The o5cer or name of the person b whom he is so imprisoned or restrained or, if both are un8nown or uncertain, such o5cer or person ma be described b anassumed appellation, and the person who is served with the writ shall be deemed theperson intended

6c< The place where he is so imprisoned or restrained, if 8nown6d< # cop of the commitment or cause of detention of such person, if it can be procured

without impairing the e5cienc of the remed or, if the imprisonment or restraint iswithout an legal authorit, such fact shall appear"

9hen writ not allowed

• If detention or restraint of libert b an o5cer is under a process issued b a court or 'udge having 'urisdiction to issue the process or

o e"g" contempt 62amara vs" Pagaatan<

• If detention or restraint is b virtue of a 'udgment or order of a court of record having 'urisdiction to render the 'udgment or ma8e the order 6ec :<

• “2ourt” under ec :L

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Page | >+

9ho ma issue

• cler8 of the court shall issue the writ under the seal of the court or

• the 'udge ma issue the writ under his own hand and depute an o5cer or person toserve it 6in case of emergenc<

Aefusal to issue writ

# cler8 of a court who refuses to issue the writ after allowance thereof and demand thereforshall forfeit to the part aggrieved the sum of one thousand pesos 6P1,+++<, to be recoveredin a proper action, and ma also be punished b the court or 'udge as for contempt" 6ec 1?<

2ontents of writ

1" # directive to an o5cer 6ec ?<L• to have the bod of the person restrained of his libert before the court or 'udge

designated in the writ at the time and place therein speciCed• to ta8e and have the bod of the person restrained of his libert before the court or

'udge designated in the writ at the time and place therein speciCed, and to summonthe person b whom he is restrained then and there to appear before said court or 'udge to show the cause of the imprisonment or restraint"

." *ame or description of person to be produced 6ec ><

upposing the writ itself contains formal defects such formal defects are notgrounds provided that the following can be clearl ascertained from the writ itself"

3ormal defects of writ

•*ot ground to disobe writ provided the following su5cientl appearsL

o in whose custod or under whose restraint the part imprisoned or restrainedis held and

o the court or 'udge before whom he is to be brought 6ec ;<

ervice of writ

7 whomK

• 7 the sheri

• Proper o5cer, or

• 7 a person deputed b the court or 'udge 6ec ><

EowK

• 7 leaving the original with the person to whom it is directed and preserving a copon which to ma8e return of service"

• If that person cannot be found, or has not the prisoner in his custod, then theservice shall be made on an other person having or e(ercising such custod" 6ec ><

If the main respondent the writ will have to be served on the person who hasactual custod of that person maintaining custod"

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Page | >1

Eow writ e(ecutedK

The o5cer to whom the writ is directed shall conve the person so imprisoned or restrained,and named in the writ, before the 'udge allowing the writ on the da speciCed in the writ"

@(ceptionsL

• Budge allowing the writ is absent or suers from disabilito before some other 'udge of the same court

• Person directed to be produced suers from sic8ness or inCrmit and cannot bebrought before the court or 'udge without danger

45cer shall ma8e due return of the writ, together with the da and the cause of the captionand restraint of such person according to the command thereof" 6ec D<

2ontents of Aeturn

9hether the o5cer or private person has in his custod or power, or under restraint thepart concerned

If es,

• the authorit and the true and whole cause thereof, set forth at large, with a cop of the writ, order, e(ecution, or other process, if an, upon which the part is held

If it is in the custod of an arresting o5cer, then that o5cer will have to state in thereturn, a cop of the warrant of arrest will have to be attached"

• but the part cannot be produced, particularl the nature and gravit of the sic8nessor inCrmit

• 7ut has transferred such custod or restraint to another, particularl to whom, atwhat time, for what cause, and b what authorit such transfer was made" 6ec 1+<

It doesnt follow that the writ of habeas corpus is onl proper against an o5cer of the republic"

3orm of Aeturn

• )ust be signed b the person who ma8es it

• ust be s5ornoath D if the prisoner is not produced

• In all other cases unless the return is made and signed b a sworn public o5cer in hiso5cial capacit" 6ec 11<

• It must be in writing

*on-@(ecution of 9rit

Aemember that when ou sa e(ecution of the writ, there are two things that mustbe madeL

production of the bod, .nd is the ma8ing of the return"

>1



Page | >.

If no return and no bod without reason, there are conse!uences"

1" Pament of P1,+++ to the part aggrieved, to be recovered in a proper action, andJor." 2ontempt when heL

• neglects or refuses to obe the wirt

• neglects or refuses to ma8e return of the same according to the command thereof

•ma8es false return

• Aefuses to deliver to the person demanding, within si( 6?< hours after the demandtherefor, a true cop of the warrant or order of commitment 6ec 1?<

Ta8e note that if the respondent have in his custod the person sought, the ma8ingof the return re!uires also the attachment of the detention order, if he fails to attacha cop of the commitment order, he can be sited for contempt"

Eearing on Aeturn

• The court or 'udge before whom the writ is returned or ad'ourned must immediatelproceed to hear and e(amine the return, and such other matters as are properlsubmitted for consideration

• In case of ad'ournment, the court or 'udge shall ma8e such order for the safe8eepingof the person imprisoned or restrained as the nature of the case re!uires"

• If the person imprisoned or restrained is not produced due to sic8ness or inCrmit,the court or 'udge must be satisCed that it is so grave that such person cannot beproduced without danger, before proceeding to hear and dispose of the matter"

The court has to determine during the hearing as to the gravit of the condition of the person that would 'ustif his non appearance in court"

• 3orm and technicalities in respect to an warrant or order of commitment shall bedisregarded b the court" 6ec 1.<

Gses of Aeturn 6ec 1<

1< Prima facie evidence of the cause of restraint• If person is in custod under a warrant of commitment in pursuance of law

• Petitioner has burden to show that restraint is illegal 6Pac!uing vs 2#<

• AeasonL presumption that o5cial dut has been regularl performed 64$ vs=e 2astro<

.< plea of the facts set forth therein

• in case restraint of libert is b a private person

The return is not a prima facie evidence rather it is a mere plea of facts set"

The use of the return will matter depending who is the respondent" If an o5cer whohas custod of the person b virtue of a valid commitment order then that becomes

a prima facie evidence of the cause of the detention"

If it is a private person, then the return is merel a plea of facts" There ispresumption of regularit of performance of dut"

• to be proven b the part claiming custod

=enial of 9rit

>.



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$roundL Prisoner was lawfull committed

Possible dispositions of person detainedL

• If plainl and speciCcall charged with a capital oense % no release, discharge, orbail

• 3or non-capital oense % recommitment or admission to bail at the court’s discretion

• If admitted to bailo 3ile bond 6otherwise, person will be recommitted<o 2ourt shall forthwith certif the proceeding, together with the bond to the

proper court 6ec 1:<

$rant of 9rit

$roundL Gnlawful imprisonmentJrestraint

4rder shall include discharge of person

=ischarge is eective upon service thereof on the o5cer or private person and no appeal ismade within :D hours from receipt of the order 6ec 10<

o upon the service 8elangann maghinta ng :D hours that will be the time frameframe within which the other part can Cle an appeal" #fter :D hours, the personcan be discharged , once discharged he cannot again imprisoned for the sameoense unless under lawful order of the court"

Person discharged shall not be again imprisoned for the same oense unless b the lawfulorder or process of a court having 'urisdiction of the cause or oense 6ec 1><

Invalid Aecommitment of person discharged

Penalties to be imposed in proper actionL

•

Pament of P1,+++ in favor of the aggrieved part, and• 2ontempt 6ec 1><

$rounds

1" Aecommitment, imprisonment, or caused to be committed or imprisoned of sameperson, for the same oense, or pretended oense

." #iding or assisting na person to set at libert notwithstanding an colorablepretense or variation in the warrant of commitment 6ec 1><

Transfer of =etained Person

# person committed to prison, or in custod of an o5cer, for an criminal matter, shall notbe removed therefrom into the custod of another o5cer

@(ceptionsL

1" legal process,." =eliver to an inferior o5cer to carr to 'ail," 4rdered b proper court or 'udge to be removed from one place to another within the

Philippines for trial:" In case of Cre, epidemic, insurrection, or other necessit or public calamit 6ec 1D<

>



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Ta8e note in the case of olanda in tacloban, dibna, binitiwan nila ung mga presodoon because of the tphoon so can ou sa na mahuhulog an ditoK Pwede" 48aou have to let them go in the interest of safet"

Invalid Transfer

Penalt

• forfeiture to the part aggrieved P1,+++, to be recovered in a proper action"

Person liable

• #n person who ma8es, signs, or countersigns an order for removal contrar to theforegoing provisions 6ec 1D<

Aecord R 2osts of Proceedings

Aecording done b the cler8 of court

2ostsL

• ta(ed against AP if person conCned under color of proceedings in a criminal case isdischarged

• ta(ed against the person discharged, or against the petitioner, or both, as if personunder custod b virtue or under color of proceedings in a civil case is discharged6ec 1;<

2 #")" *o" +-+:-+:-2AG&@ 4* 2GT4=Q 43 )I*4A #*= 9AIT 43 E#7@# 24APG I* A@&#TI4* T4 2GT4=Q 43

)I*4A

2ontents of Petition

6a< The personal

circumstances of the petitioner and of the respondent6b< The name, age and present whereabouts of the minor and his or her relationship to

the petitioner and the respondent6c< The material operative facts constituting deprivation of custod and6d< uch other matters which are relevant to the custod of the minor"6e< )ust be veriCed and shall be accompanied b a certiCcate against forum shopping

6ec :<

9ho ma be partiesK

>:



Page | >0

• Petitioner % an person claiming rightful custod of a minor

• Aespondent - The part against whom action ma be Cled 6ec .<

The hearings on custod of minors ma, at the discretion of the court, be closed to thepublic and the records of the case shall not be released to non-parties without its approval"6ec .1<

Burisdiction

• 3amil 2ourt of the province or cit where the petitioner resides or where the minorma be found 6ec <

ummons

• Issued b the cler8 of court upon the court’s order

• erved together with a cop of the petition personall on the respondent" 6ec 0<

#nswer

• )ust be personall veriCed b respondent

• )ust be Cled within Cve das after service of summons and a cop of the petition6ec ><

• )a contain grounds for dismissal of the petition as a5rmative defenses e(cept thegrounds of lac8 of 'urisdiction over the sub'ect matter or over the parties whichconstitute as e(clusive grounds for a motion ot dismiss 6ec ?<

2ase tud

• )ade b the ocial 9or8er as ma be re!uired b the court upon Ming of the veriCedanswer

• In the form or a report which includes recommendations

• ub'ectsL )inor and the parties

• 9hen submittedL #t least das before the scheduled pre-trial 6ec D<

Pre-Trial

*otice of pre-trial

• Issued within 10 das form Cling of answer or e(piration thereof separatel served on theparties and their respective counsels

• C( date for the pre-trial conference

• =irect respondent to present the minor before the court

• =irect the parties to Cle and serve their respective pre-trial briefs at least three dasbefore the date of pre-trial and 6ec ;<

*on-Cling of brief or *on-#ppearance at pre-trial or *on-compliance with contents of brief

7 Petitioner

• Petition shall be dismissed, unless his counsel or a dul authoriFed representativeappears in court and proves a valid e(cuse for the non-appearance of the petitioner"

7 Aespondent

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• Presentation of evidence e( parte, the court shall then render 'udgment on the basisof the pleadings and the evidence thus presented 6ec 11<

Pre-trial 2onference

• The parties ma agree on the custod of the minor"

•

If the parties fail to agree, the court ma refer the matter to a mediator• If the issue is not settled through mediation, the court shall proceed with the pre-trial

conference• 2ourt shall consider such other matters as ma aid in the prompt disposition of the

petition 6ec 1.<

Provisional 4rders

1" Temporar 2ustod 6ec 1<." Temporar Nisitation Aights 6ec 10<" Eold =eparture 4rder 6ec 1?<:" Protection 4rder 6ec 1><0" upport pendent lite 6Aule ?, ec 1<

Temporar 2ustod

4rder of Preference

6a< 7oth parents 'ointl6b< @ither parent, ta8ing into account all relevant considerations, especiall the choice of

the minor over seven ears of age and of su5cient discernment, unless the parentchosen is unCt

6c< The grandparent, or if there are several grandparents, the grandparent chosen b theminor over seven ears of age and of su5cient discernment, unless the grandparentchosen is unCt or dis!ualiCed

6d< The eldest brother or sister over twent-one ears of age, unless he or she is unCt ordis!ualiCed

6e< The actual custodian of the minor over twent-one ears of age, unless the former isunCt or dis!ualiCed or

6f< #n other person or institution the court ma deem suitable to provide proper careand guidance for the minor" 6ec 1<

3actors to 2onsider

• 7est interests of the minoro the totalit of the circumstances and conditions as are most congenial to the

survival, protection, and feelings of securit of the minor encouraging to hisphsical, pschological and emotional development"

o the least detrimental available alternative for safeguarding the growth anddevelopment of the minor" 6sec 1:<

• material and moral welfare 6ec 1:<

4ther factorsL

6a< #n e(tra'udicial agreement which the parties ma have bound themselves tocompl with respecting the rights of the minor to maintain direct contact with the noncustodial parent on a regular basis

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• @(ceptionL e(istence of threat or danger of phsical, mental, se(ual or emotionalviolence which endangers the safet and best interests of the minor

6b< The desire and abilit of one parent to foster an open and loving relationship betweenthe minor and the other parent

6c< The health, safet and welfare of the minor6d< #n histor of child or spousal abuse b the person see8ing custod or who has had

an Clial relationship with the minor, including anone courting the parent6e< The nature and fre!uenc of contact with both parents6f< Eabitual use of alcohol, dangerous drugs or regulated substances6g< )arital misconduct6h< The most suitable phsical, emotional, spiritual, pschological and educational

environment for the holistic development and growth of the minor and6i< The preference of the minor over seven ears of age and of su5cient discernment,

unless the parent chosen is unCt" 6ec 1:<

Nisitational Aights

The court shall provide in its order awarding provisional custod appropriate visitation rightsto the non-custodial parent or parents, unless the court Cnds said parent or parents unCt ordis!ualiCed"

The temporar custodian shall give the court and non custodial parent or parents at leastCve dasZ notice of an plan to change the residence of the minor or ta8e him out of hisresidence for more than three das provided it does not pre'udice the visitation rights of thenon-custodial parent or parents" 6ec 10<

Eold =eparture 4rder

• $ranted motu proprio or upon veriCed application

• @( parteo addressed to the 7ureau of Immigration and =eportation, directing it not to allow the

departure of the minor from the Philippines without the permission of the court, copfurnish the =epartment of 3oreign #airs and the 7ureau of Immigration and

=eportation of the =epartment of Bustice a cop of the hold departure order withintwent-four hours from its issuance and through the fastest available means of transmittal"

o )a be recalled motu proprio, or upon veriCed motion of an of the parties aftersummar hearing, sub'ect to such terms and conditions as ma be necessar for thebest interests of the minor" 6ec 1?<

Protection 4rder

Ae!uire an personL

6a< To sta awa from the home, school, business, or place of emploment of the minor,other parent or an other part, or from an other speciCc place designated b the court

6b< To cease and desist from harassing, intimidating, or threatening such minor or the otherparent or an person to whom custod of the minor is awarded6c< To refrain from acts of commission or omission that create an unreasonable ris8 to the

health, safet, or welfare of the minor6d< To permit a parent, or a part entitled to visitation b a court order or a separation

agreement, to visit the minor at stated periods6e< To permit a designated part to enter the residence during a speciCed period of time in

order to ta8e personal belongings not contested in a proceeding pending with the 3amil2ourt and

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6f< To compl with such other orders as are necessar for the protection of the minor" 6ec1><

o these are the conditions that ma be attached"

Budgment

1" #ward the custod of the minor to the proper part considering the best interests of the minor"• If it appears that both parties are unCt to have the care and custod of the minor,

the court ma designate either the paternal or maternal grandparent of theminor, or his oldest brother or sister, or an reputable person to ta8e charge of such minor, or commit him to an suitable home for children"

." support, maintenance and education of the minor" visitation rights, if appropriate 6ec 1D<

3actors in #warding upport

The court ma order either or both parents to give an amount necessar for the support,maintenance and education of the minor, irrespective of who ma be its custodian" In

determining the amount of support, the court ma consider the following factorsL

61< the Cnancial resources of the custodial and non-custodial parent and those of the minor6.< the phsical and emotional health, special needs, and aptitude of the minor6< the standard of living the minor has been accustomed to and6:< the non-monetar contributions that the parents would ma8e toward the care and well-

being of the minor" 6ec 1D<

Ma’am 'iu: !n Manalo’s case, he was saying, bakit siya lang ang magsusuporta( 9iwalay silang asawa niya, so why is he the only one pressured to give support( !f you look at the rules,ang sinasabi lang naman dito is either or both parents to give an amount necessary for thesupport, and you have to consider the nancial resources of the custodia, the noncustodian

parent, and those of the minor. So kung ang custodian, may kaya, so it doesn’t follow na thenoncustodian parent should be burdened for support. !t’s a case to case basis. 'here might be merit in Manalo’s case wherein he is saying bakit siya lang ang pinipiga na magbigay ngsuporta, well in fact the wife is gainfully employed.

#ppeal

• *ot allowed unless a motion for reconsideration or new trial was Cled within Cfteen dasfrom notice of 'udgment"

• *otice of #ppeal within Cfteen das from notice of the denial of the motion forreconsideration or new trial and serving a cop thereof on the adverse parties"

Eabeas 2orpus 6In relation to 2ustod of )inors<

Ma’am 'iu: !bang set of rules ito than that under 8ule +4. 'his is governed by the specialrules because it concerns minors.

9here to Cle

• 3amil 2ourt

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• Aegular 2ourtso In the absence of the presiding 'udge of the 3amil 2ourt 6refer case to 32 as

soon as presiding 'udge returns to dut<o 9here there are no 3amil 2ourts

• upreme 2ourt or 2ourt of #ppealso 9rit issued is enforceable anwhere in the Philippines

o 9rit ma be made returnable to 32 or to Aegular 2ourt of the place wherepetitioner resides or minor is found for hearing and decision"

Ma’am 'iu: !n other words, it is not only the amily /ourts to hear habeas corpus cases over minors.

)adrinan vs )adrinan 6$A 10;>:, Bul 1., .++><

• 3amil courts % vested with original e(clusive 'urisdiction in custod cases, not in habeascorpus cases, under A# D?; 63amil 2ourts #ct of 1;;><

Ma’am 'iu: So you distinguish between the two remedies, if it is custody, original urisdictionniyan belongs to the amily /ourts, you cannot go directly to the /* or S/. @ut if it is

9abeas /orpus, you can go either to the /, /*, or S/.

• 2# and 2 % not divested of their 'urisdiction over habeas corpus cases involving custodof minors

The provisions of A# D?; reveal no manifest intent to revo8e the 'urisdiction of the 2ourt of #ppeals and upreme 2ourt to issue writs of habeas corpus relating to the custod of minors" 3urther, it cannot be said that the provisions of A# D?;, A# >+;. #n #ct @(pandingthe Burisdiction of the 2ourt of #ppealsU and 7P 1.; The Budiciar AeorganiFation #ct of 1;D+U are absolutel incompatible since A# D?; does not prohibit the 2ourt of #ppeals andthe upreme 2ourt from issuing writs of habeas corpus in cases involving the custod of minors" Thus, the provisions of A# D?; must be read in harmon with A# >+.; and 7P 1.; %that famil courts have concurrent 'urisdiction with the 2ourt of #ppeals and the upreme2ourt in petitions for habeas corpus where the custod of minors is at issue"D 6emphasessupplied<

The 'urisdiction of the 2ourt of #ppeals over petitions for habeas corpus was further a5rmedb #")" *o" +-+-+:-2 6#pril .., .++:< in AeL Aule on 2ustod of )inors and 9rit of Eabeas2orpus in Aelation to 2ustod of )inorsL

A# D?; did not divest the 2ourt of #ppeals and the upreme 2ourt of their 'urisdiction overhabeas corpus cases involving the custod of minors"

Thus, if a minor is being transferred from one place to another, which seems to be the casehere, the petitioner in a habeas corpus case will be left without legal remed" This lac8 of recourse could not have been the intention of the lawma8ers when the passed the 3amil2ourts #ct of 1;;> A# D?;U"

=ecision

• Gpon return of the writ, the court shall decide the issue on custod of minors"

Ma’am 'iu: !n a habeas corpus case, the court can also decide who is entitled custody over minors. 2ero iba naman yung proceedings for custody of minors. 'hat involves a situationwhere only custody of minors is the main issue. 2ag habeas corpus kasi, ibig sabihin, one

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parent is already awarded custody over the minor "8 under the law, the minor is supposedto be under the custody of one parent. >ike in the case of a mother having custody of achild below A years old at it so happened na tinakas ng noncustodian parent ang bata fromthe rightful custodian. !n this case, you resort to habeas corpus cases, because there is noan illegal deprivation of custody of a minor by one person against the rightful custodian of the minor.

• The appellate court, or the member thereof, issuing the writ shall be furnished a copof the decision"

=oes )ediation #pplK

• Qeso P)2 also covers habeas corpus cases involving custod of minors,o 9ith consent of partieso Provided the minor is not detained for commission of a criminal oense"

Is Prior 7aranga 2onciliation Ae!uiredK

• *oo 2 #) 1:-; 6Bul 10, 1;;<o @(ceptionL =isputes where urgent legal action is necessar to prevent in'ustice from

being committed or further continued e"g" petitions for habeas corpus b a person illegall deprived of his rightful

custod over another"

Amparo rule (transcribed by Renan Lasala !owerpoint provided by "en #rallo$

Promulgated b 2 on 4ctober .> .++> in the Crst e(ercise of its e(panded power topromulgate rules to protect constitutional rights provided for the Crst time b the 1;D>consti6art NIII s00U+<

Intended to address problems of e(tra legal 8illings and enforced disappearances or threatsthereof"

>Htra legal killings - 8illings committed without due process of law without legal

safeguards or without 'udicial proceedings

Ma’am 'iu: So you have three basic instances wherein *mparo cases are applicable: +#B1traudicial killingsC and #Bnforced disapperancesC or =# 'hreats threats of either + or .

5hen you issue a shoot to kill order, is that an order contemplated under e1traudicialkilling( ?asi di dumadaan sa udicial proceeding. 'his is very interesting. !n several

urisdictions all over the world, shoot to kill is >BD*>. 'here is an *tty%Deneral in *merica, he ustied a shoot to kill order, and he said, E'he /onstitution does not re$uire a udicial proceeding, it only re$uires )ue process.F *nd due process is not always determined

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through a udicial proceeding. 5hen ling a case in court will defeat the very purpose of theevil sought to be prevented G!.e. there is a terroristH !t is impractical to le a case in court rst ust to have him arrested because it will be too lateH#. 7ung riding in tandem, yan yungBI'8*JK)!/!*> ?!>>!LDS. 7ang ))S na yan. ?asi talagang walang due process.

@nforced =isappearancesL

/aon 6ersus $agitis 6$A 1D.:;D =ec .++; ?+? 0;D<

$he elements of enforced disapperances areJ

1< #rrest, detention abduction or an other form of deprivation of libert

.< b agents of the state or b persons or group of persons acting with the authoriFation,support or ac!uiescence of the tate

< The refusal of the tate toL

a< #c8nowledge the deprivation of libert which place the person outside theprotection of the law

b< =isclose the fate or whereabouts of the disappeared persons"

Ma’am 'iu: So when you speak of Bnforced disapperances, there is that element of State/omplicity. May kinalaman ang gobyerno. So, take note of that.

/A 0-(1 sec "9g: =ecember 11 2330

>nforced or in6oluntar& disappearance of persons

- #rrest , detention, or abduction of persons- 7 or with the authoriFation, support or ac!uiescence of a state or a political

organiFation

Ma’am 'iu: !to nagbroaden na, hindi lang by the state, sinama na ang political organiation.

- 3ollowed b refusal to ac8nowledge that deprivation of freedom or to giveinformation on the fate or whereabouts of those persons

- 9ith the intention of removing from the protection of the law for a prolongedperiod of time"

/ubrico 6ersus acapagalDArro&o G/ 1-"-,1 )1"s22" Arturo 8rion SeparateopinionJ

The rule on the writ of #mparo is now a procedural law anchored not onl on theconstitutional rights to life, libert and securit but on a concrete statutor deCnition as well

of what an “enforced or involuntar disappearance is"

=io 6ersus 'ardico 9G/ 1-%%),C 7une 10 2312:

-The #mparo Aule’s reference to enforced disappearances should be construed to mean theenforced or involuntar disappearances of persons contemplated in ec g Aa ;D01

>lements 9enforced =isappearances:

-#rrest, detention, abduction or an form of deprivation of libert

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- 2arried out b or with authoriFation of the state or a political organiFation

-3ollowed b the stat or political organiFation’s refusal to ac8nowledge thewhereabouts of the person sub'ect of the #mparo petition

-intention of such refusal is to remove sub'ect person of the protection of the law 6=iov Pardico<

-tate ParticipationL this hallmar8 of state participation dierentiates an enforceddisappearance case from an ordinar case of a missing person 6=io v Pardico<

Ma’am 'iu: S" pagnawawala lang yung tao, without the allegation of state complicity or state participation, then it cannot $ualify as enforced disapperance. Simply, missing langsiya. *nd if one is missing, what is the remedy then( 2B'!'!"L "8 * )B/>*8*'!"L "

*@SBL/B or 8B28BSBL'*'!B. @ut the moment you allege state complicity or participation,then you have the remedy of *mparo.

A'A/4

-4riginated in )e(ico and literall means “protection” in panish"

- # hbrid writ of the common and civil law traditions

-7orne out of the &atin and Philippine e(perience of human rights abuses"

-Provides rapid 'udicial relief

-parta8es of a summar proceeding that re!uires onl substantial evidence

Ma’am 'iu: Lormally, substantial evidence is only re$uired in administrative proceedings.Low, in a writ of amparo, the proceedings are e1pedited because only substantial evidenceis re$uired.

-erves preventive and curative roles in addressing problems of e(tralegal 8illings andenforced disappearances or threats thereof

- PreventiveL brea8s e(pectanc of impunit in the commission of these oenses and

-2urativeL 3acilitates subse!uent punishment of perpetrators, inevitabl ield leads tosubse!uent investigation and action"

S'>!I>S 4 A'A/4 W/I$

a< #mparo &iberal- protection of personal freedom, e!uivalent to habeas corpus writ

b< #mparo 2ontra &ees- Budicial review of constitutionalit of statutesc< #mparo 2asacion- Budicial review of constitutionalit and legalit of a 'udicial decisiond< #mparo #dministrativo- Budicial review of administrative actionse< #mparo #grario- protection of peasant’s rights derived from the agrarian reform

process"

A$@/> 4 A'A/4 /@L>

AaFon v" Tagitis 6=ec ;, .++;<

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-The rule on the writ of amparo issued b the court is uni!ue" The #mparo rule should beread, too, as a wor8 in progress, as its directions and Cner points remain to revolve throughtime and 'urisprudence and through the substantive laws that 2ongress ma promulgate"

-Aemed available to an person whose right to life, libert and securit has been violated oris threatened with violation b an unlawful act or omission of public o5cial or emploee or of a private individual or entit" It covers e(tralegal 8illings and enforced disappearances andthreats thereof 6ec1<

A$@/> 4 $> W/I$J

-# protective remed against violations or threats of violation against the rights to life libertand securit 6AaFon v Tagitis<

-=oes not determine guilt nor pinpoint criminal culpabilit for the disappearance rather, itdetermines responsibilit or at least accountabilit, for the enforced disappearance for thepurpose of imposing the appropriate remedies to address the disappearance"

-Aesponsibilit- refers to the e(tent the actors have been established b substantialevidence to have participated in whatever wa, b action, or omission, in an enforced

disappearance , as a measure of the remedies this court shall craft, among them, thedirective to Cle the appropriate criminal and civil cases against the responsible parties in theproper courts"

- In all these cases, the issuance of the writ of amparo is 'ustiCed b the primar goal of addressing the disappearance, so that the life of the victim is preserved and his libert andsecurit restored"

Thus the uni!ue situations that call for the issuance of the writ as well as the considerationsand measures necessar to address these situations, ma not at all be the same as thestandard measures and procedures in ordinar court actions and proceedings"

W4 AM IL>J

-#ggrieved part

-#n immediate famil member i"e" the spouse, children and parents of aggrieved part

-#n ascendant, descendant or collateral relative of aggrieved part within the : th civildegree of a5nit or consanguinit, in default of those mentioned in the precedingparagraph or

-#n concerned citiFen, organiFation association or institution, if there is no 8nown memberof the immediate famil or relative of the aggrieved part"

-3iling of petition b aggrieved part suspends the right of all other authoriFed parties to Clesimilar petitions" 3iling of petition b an authoriFed part on behalf of the aggrieved partsuspends all others observing the order established herein 6sec.<

W> A= W>/> $4 IL>

9henL #n da and at an time

9hereL AT2 of the place where the threat, act of omission was committed or an of itselements occurred

-sandiganbaan

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-2ourt of #ppeals

-2 or an 'ustice of such courts" The writ shall be enforceable anwhere in the Philippines"6ec <

W>/> W/I$ />$@/A8L>?

AT2- 7efore itself

2# or 7-before itself or an 'ustice thereof

-7efore AT2

2- 7efore itself or an 'ustice thereof

-7efore 2# or 7

-7efore %AT2

=4!K>$ 4/ ILIG >>SD 4>

-the court, 'ustice or 'udge shall doc8et the petition and act upon it immediatel 6sec:<

!4$>$S 4 '>$I$I4

-Pet" Personal circumstances 60a<

-*ame and personal circumstances or assumed appellation of person responsible for thethreat, act or omission" 60b<

-The right to life libert and securit of the aggrieved part violated and how such threat orviolation is committed with the attendant circumstances detailed in supporting a5davits60c<

Ma’am 'iu:So it is important to state kung ano yung naviolate oor how it was done. 'he

$uestion is, are these mandatory( )o you really have to specify how the violation wascommittedN 'ake note, it is not the aggrieved party who les this case, chances are it’s hisrelatives, kasi nga nawawala ang kamaganak nila, and they suspect that dinukot or pinatay ng gobyerno. So, how would you supply the attendant circumstances that should be detailedin the a0davits( 'his is now answered in 8aon vs 'agitis.

The framers of the #mparo rule never intended ec 0c to be complete in ever detail instating the threatened or actual violation of a victim’s rights"

#s in other initiator pleading, the pleader must of course state the ultimate factsconstituting the cause of action, omitting the evidentiar details"

This re!uirement must be read in light of the nature and purpose of the proceeding which

addresses a situation of uncertaint how the victim e(actl disappeared or who actuallacted to 8idnap abduct or arrest him or her or where the victim is detained, because theseinformation ma be purposel hidden or covered up b those who caused thedisappearance" 6AaFon v Tagitis<

In this tpe of situation, to re!uire the level of speciCcit, detail and precision is to ma8ethis rule a to8en gesture of 'udicial concern for violations of the consti rights to life libertand securit"

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The test in reading the petition should be determine whether it contains the detailsavailable to the petitioner under the circumstances while presenting a cause of actionshowing a violation of the victim’s rights to life, libert and securit through state or privatepart action 6AaFon vs Tagitis<

>nforced disappearances 9 =io 6 'erdico:

-)ust allege all elements of @nforced =isapperances

-Qou must Implead or implicate agents, o5cers, or emploees of the tate as responsibleor accountable persons

-If the person sought to be held accountable or responsible in an amparo petition is aprivate individual or entit, ie, securit guards, still govt involvement in the disappearanceremains an indispensible element"

=etails needed in supporting 60c<

-=ue to the summar nature of proceedings for the writ and to facilitate the resolution of thepetition, the amparo rule incorporated the re!uirement for supporting a5davits with the

annotation that these can be used as the a5ants’ direct testimon

-This re!uirement should not be read as an absolute one that necessaril leads to thedismissal of the petition if not strictl followed"

-NeriCed petition su5cientl detailing the facts relied upon-ubstantial compliance

-3ailure to attach re!uired a5davits will be full cured when respondent and her witnesstestiCed at the hearing to attest the allegations in the petition"

!4$>$S 4 '>$I$I4J

The investigation conducted, if an,-specif names, personal circumstances, and addresses of investigating authorit or

individuals"

-specif the manner and conduct of investigation, together with an report" 60d<

*ctions and recourses taken by petitioner to determine the fate or whereabouts of aggrieved party and identity of the person responsible for the threat, act or omission 60e<

ee8s to establish at the earliest opportunit the level of diligence the public authoritiesundertoo8 in relation with the reported disappearance"

presupposes that reports have been made to the police authorities and thatinvestigations should have followed"

The failure to state the manner and results of the investigation, but rather general

statement on the inaction of the police, their failure to perform their dut to investigate or atthe ver least, their reported failed eorts, su5cient compliance

To re!uire the respondent to elaboratel specif the names, personal circumstances, andaddresses of the investigating authorit, as well the manner and conduct of the investigationis an overl strict interpretation of ection 0d, given the respondent’s frustrations insecuring an investigation with meaningful results"

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Ma’am 'iu: So, in other words, you are not re$uired to state in detail the what specicactions were taken by the police authorities, it is enough that you state in the petition that specic recourse has been made and that the police did not conduct any investigation. So it can be a general averment of the actions taken by the petitioner. *ll you have to do is ust allege.

OActions and resources taken b& petitioner 9(e:

-ection 0e is in the amparo rule to prevent the use of a petition-that otherwise is notsupported b su5cient allegations to constitute a proper cause of action-as a means to Cshfor evidence"

-ec 0e merel re!uires that the amparo petitioner 6the respondent in the present case<allege “the actions and recourses ta8en to determine the fate or whereabouts of theaggrieved part and the identit of the person responsible for the threat, act or omission"”

'he relief prayed for the petition may include a general prayer for other ust and e$uitablereliefs G3f#

G/4@=S 4 '>$I$I4

3or enforced disappearancesL

-It is not enough that the sub'ect of the petition is missing

- Petitioner must allege all elements of enforced disappearance 6=io v Pardico<

Invalid $roundsL

-Trespass to propert 6violation of propert rights<

-lac8 of coercion to accept invitation

- )ere anticipation of harassment suits and possible violence 6Pador v #rcaan $r

1D:?+ )arch 1. .+1<

-amorphous or uncertain grounds

-threat has ceased to e(ist 6&oFada vs $)# $A 1D:>; #pril .: .+1.<

Ma’am 'iu: So, these are cases wherein the S/ held that the writ of amparo cannot beissued. Low take note also in >oada, this is the case wherein aside from an amparo writ

petition, a writ of habeas corpus petition was also led. So, pwede palaH @oth petitions wereentertained. 'he ling of a habeas corpus petition does not preclude the ling of an amparo

petition. ?asi nga, if you look at the rules, magkaiba ang grounds ng dalawa.

ISS@A!> 4 W/I$J

Gpon Cling of the petition

-the court, 'ustice or 'udge shall immediatel order the issuance of the writ if on itsface is ought to issue

-Eearing not re!uired for writ to issue 6de lima v" $atdula $A.+:0.D 3ebruar 1;.+1<

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-3iling of answer is contrar to the intention of the court to provide a speed remedto those whose right to life, libert, securit are violated or are threatened to be violated6 =e lima v" $atdula<

Aesponsive pleading re!uired b #mparo Aule

-2annot be substituted b the Cling of memorandum which is a prohibited pleading

under #mparo rule"

)ust be Cled before a hearing, not after, because It allows respondent to frame the issuessub'ect to the hearing 6=e &ima vs" $astrula<

!4$>$S 4 />$@/J

1< &awful defenses showing that respondent did not violate or threaten to violate the right tolife, libert, and securit of the aggrieved part, through an act or omission"

.< #ll relevant information is respondent’s possession pertaining to the threat, act oromission against the aggrieved part 6sec ;<

< If respondent is a public o5cial or emploee, the return shall further the actions that havebeen or will still be ta8enL

- To verif the identit of the aggrieved part

- To recover and preserve evidence related to the death or disappearance whichma aid in the prosecution of the person or persons responsible

-To identif witnesses and obtain statements from them concerning the death ordisappearance"

:"< If respondent is a public o5cial or emploee, the return shall state the actions that havebeen or will still be ta8enL

-to determine the cause, manner , location and time of death or disappearance aswell as an pattern or practice that ma have brought about the death or disappearance"

-To identif and apprehend the person or persons involved in the death ordisappearance and

-to bring the suspected oenders before a competent court"

Ma’am 'iu: 5hatever action that has been taken must be stated in the return.

0"< 4ther matters relevant to the investigation, its resolution and prosecution of the case

Ta8e note that general denial of allegations in the petition is not allowed

=efenses not raised deemed waived 6ec1+<

AIL@/> $4 IL> />$@/

The court, 'ustice or 'udge shall proceed to hear the petition e( parte or even without theappearance of the respondent 6sec 1.<

Aefusal to ma8e return, ma8e false return, or disobes or resists a lawful process or courtorder shall be punished for contempt"

DD



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A$@/> 4 '/4!>>=IGJ

2ourt, 'ustice or 'udge ma call for a preliminar conference to simplif the issues anddetermine possibilit of obtaining stipulations and admissions from the parties"

Ma’am 'iu: !t is a semi%civil case or a semi%administrative case. !t is a hybrid proceeding."nce the issues are determined by conducting preliminary conference, then only those

unstipulated facts will be the subect of the hearing until completed.

Eearing shall be from da to da until completed and given the same priorit as petitionsfor habeas corpus 6s1<

9hat is the nature of the proceedingK

-=ue to the delicate and urgent nature of these controversies, the procedure wasdevised to aord swift but decisive relief"

- pecial Proceeding- To establish a status, a right or a particular fact"

- Aule on summar procedure does not appl to amparo petitions because it onlapplies onl to certain criminal or civil cases before mtcJmtccJmctc 6delima vs $atdula<

'/4I8I$>= 'L>A=IGSJ

!rohibited !leadings and %otions. % The following pleadings and motions are prohibitedL

a" )otion to dismissb" )otion for e(tension of time to Cle return, opposition, a5davit, position paper and

other pleadings

c" =ilator motion for postponement

d" )otion for a bill of particulars

e" 2ounterclaim or cross-claim

f" Third-part complaint

g" Aepl

h" )otion to declare respondent in default

i" Intervention

'" )emorandum

8" )otion for reconsideration of interlocutor orders or interim relief orders and

l" Petition for certiorari, mandamus or prohibition against an interlocutor order"

I$>/I />LI>S

)a be granted upon Cling of petition but before Cnal 'udgment is rendered" 6=elima v$atdula<

D;



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-Temporar Protection 4rder 61:a<

-Inspection 4rder 61:b<

-Production 4rder 61:c<

9itness protection 61:d<

$>'4/A/M '/4$>!$I4 4/=>/

Issued motu proprio or upon motion

@(tends to pet" #ggrieved part an member of immediate famil or o5cers concerned 6if pet" Is an organiFation association or institution<

protection of be provided b the govt agenc, accredited person or private institutioncapable of 8eeping and securing their safet"

IS'>!$I4 4/=>/J

Gpon veriCed motion and hearing

Ma’am 'iu: 'ake note, hindi siya pwede motu propioH

-)otion shall state in detail the placeJs to be inspected to be supported b a5davitsor testimonies of witnesses

-Eearing ma be done in chambers if motion is opposed on the grounds of nationalsecurit or privileged information"

-Issued to an person in possession or control of a designated land or propert

-2overs entr into propert, inspection, measurement surve photograph of thepropert of an relevant ob'ect or operation

-)a be !uestioned on certiorari under rule ?0

-e(pires in 0 das from issue unless e(tended for 'ustiCable reasons

-)ust specif personJpersons authoriFed to conduct inspection and the date, time,place and manner of inspection

- ma prescribe other conditions to protect the consti rights of the parties"

'/4=@!$I4 4/=>/

Gpon veriCed motion and hearing

Ma’am 'iu: So, dalawa lang ang upon veried motion and hearing, inspection order and production order.

-hearing can be done in chambers if opposed on grounds of national securit orprivileged information

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-Issued against an person in possession, custod or control of an designateddocuments, papers, boo8s, accounts, letters, photographs, ob'ect or tangible things orob'ects in digitiFed or electronic form which constitute or contain evidence relevant topetition or the return

Purpose- to produce or permit inspection, coping or photographing b or on behalf of themovant"

)a prescribe other conditions to protect the consti rights all parties"

=oes it parta8e of the nature of a search warrantK

- *o, the consti provision on search warrants is a protection of the people from theunreasonable intrusion of the govt not the protection of the govt from the demand of thepeople" Instead the amparo production order ma be li8ened to the production of documentsor things under rule .> sec 1 of civil procedure" 6ec of =efense v )analo $A1D+;+? 4ct >,.++D<

WI$>SS '/4$>!$I4 4/=>/

Issued )otu Proprio or upon motion

2overs

-Aeferral of witnesses to other govt agencies or to accredited persons or privateinstitutions capable of 8eeping or securing their safet"

9ho ma avail of the interim reliefsK

-Petitioner

-Aespondent" 7ut for respondent, it is onl limited to Inspection and production ordersupon veriCed motion supported b a5davits or testimonies of witnesses having personal8nowledge of respondent’s defenses and after due hearing"

*@A$@ 4 '/44- ubstantial evidence- such evidence as a reasonable mind mightaccept as ade!uate to support a conclusion 6ec1><

Ma’am 'iu: 'he amparo rule is a uni$ue rule on its own because it only re$uires substantialevidence. Knlike the other rules, the re$uirement is here is lower, only substantial evidence.'his is the $uantum of proof re$uired in administrative cases.

8@/=> 4 '/44J

Aespondent

a< if it is a Private individual or entit % must prove observance of ordinar diligencepar as re!uired b applicable laws, rules and regulations in the performance of dut

b< if it is a Public o5cial or emploee- must prove observance or e(traordinardiligence as re!uired b applicable laws, rules and regulations in performance of dut

-presumption of regular performance of o5cial dut cannot be invo8ed to evaderesponsibilit or liabilit"

Ma’am 'iu: So there us a basic dierence of the application of Eregular performance of dutyF in habeas corpus petition and in an amparo petition. !n *mparo petitions, the

presumption does not apply.

;1



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*lso, take note that the burden of proof placed on respondent is only as to the e1ercise of e1traordinary diligence in the performance of his duties. !nsofar as the rest of theallegations in the complaint, then it is the petitioner who has the burden of proof.

Loada 6s GA 6.+1.<- 3ailure of respondent public o5cial or emploee to proveobservance of e(traordinar diligence will not shift the burden of proof on petitioner topresent substantial evidence to support his claim"

=io 6s 'ardico

@nforced disappearances

-Petitioner in amparo petition has the burden of proving b substantial evidence theindispensible element of govt participation

-proof of disappearance is not enough there must also be allegation and proof of state complicit"

'>/I4= $4 =>!I=>

9ithin 1+ das from the time the petition is submitted for decision

If allegations in the petition are proven b substantial evidence, the court shall grant theprivilege of the writ and such reliefs as ma be proper and appropriate"

4therwise, the privilege shall be denied" 6sec1D<

Ma’am 'iu: So, we have distinguished earlier the privilege of the writ of amparo and the writ of amparo itself. 'he writ of amparo is issued upon the ling of the petition. 'here is anorder allowing the issuance of the writ of amparo. @ut, at the end of the case, once theamparo writ has been issued, return has been made, and hearings had been conducted, at the end the court will now decide whether the $uantum of proof re$uired has been met. !f !t is, then the 28!!>BDB of a writ of amparo. So, ito na nga, the privilege of the writ is issuedafter hearings had been conducted, whereas the writ of amparo is issued even before

hearing was done. !to nga yung !SSKB L"5, 9B*8 >*'B8.

So; it is that order granting or den&ing the '/I#IL>G> of the 5rit of amparo thatcan be subject to appeal under /ule %(. indi &ung issuance of the 5rit; kasiinterlocutor& order lang &un.

7@=G>$J

3or the PAINI&@$@ of the writ to be enforceable or appealable, 'udgment must-

-contain measures which the 'udge views as essential for the continued protection of petitioner

-such measures must be detailed enough so the 'udge ma verif and modif the

actions ta8en b respondents 6 delima v gatdula<

hould detail the re!uired acts from the respondents what will mitigate if not totalleradicate the violation of or threat to pet" &ife libert or securit

# 'udgment which simpl grants the privilege of the writ cannot be e(ecuted" It istantamount to a failure of the 'udge to intervene and grant 'udicial succor to the petitioner"6delima vs $atdula<

A''>AL

;.



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9ho ma appealK

-#n part ma appeal from the Cnal 'udgment or order to the 2 under rule :0 on!uestions on fact or law or both"

Ma’am 'iu: So you see here a certain incongruity. Mas swifter ang relief ng writ of amparokaysa sa writ of habeas corpus. 7et, when it comes to appeal, mas mabilis ang habeas

corpus kasi -;hrs lang, dito naman 3. Sa 9abeas corpus, appeal is with the /*, dito naman,derecho sa S/. 7ou have to distinguish between the two, ok(

9hen to appeal

- 0 wor8ing das from the date of notice of the adverse 'udgment" The appeal shallbe given the same priorit as in habeas corpus cases 6s1;<

A/!I#>; />#I#AL A= =ISISSAL

#rchiving of petitions

-2ourt determines the petition cannot proceed for a valid cause" I"e", failure of witnesses to appear due to threats to their lives sub'ect to periodic review

Aevival of Petition

-)otu proprio or upon motion b an part when read for further proceedings"

=ismissal of Petition with Pre'udice

-#fter the lapse of . ears from notice to petitioner of the order archiving the case"6ec.+<

4$>/ A!$I4S

eparate criminal civil or admin actions 6sec.1<-not precluded

AeasonL #mparo writ is a prerogative writ, not a criminal, civil, or admin suit"

Aules that should be observedL

1< if the 2riminal action is commenced Crst 6sec..<

- *o separate petition for the writ shall be Cled,

-#mparo reliefs available b motion in criminal case

-#mparo rule shall govern the disposition of reliefs available under the writ of amparo

2riminal actionL refers to actual case Cled in court 6Aees v $onFales dec .++;<and not with the =4B or 4)7 6&oFada v $)# .+1.< pending preliminar investigation"

.< if the writ of #mparo petition is commenced Crst6s..<

-To be consolidated with the subse!uent criminal action

-#fter consolidation, amparo shall continue to appl to the disposition of reliefs inamparo petition"

Provisions of the rules of court not inconsistent with the present rules appl suppletoril"

;



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/>$/4A!$I#> >>!$

#ppl to pending cases involving e(tralegal 8illings and enforced disappearances or threatsthereof in the trial or appellate courts 6sec .?< 6ec" of *ational =efense vs" )analo .++D<

@2 43 *#TI4*#& =@3@*@ N )#*#&4 42T > .++D

3#2TL 7rothers Aamond and Aenaldo )analo were abducted from their home on 3eb" 1:.++?, tortured and held in detention b govt agents in several places" The were able toescape on #ug 1 .++>" 4n aug ., .++> the Cled for a pet" 3or prohibition" In'unction and TA4 with the 2 to stop petitioners and Jor their o5cers and agents from depriving them of their rights to libert and other basic rights"

The petition see8s ancillar remedies such as protective custod orders and all other legaland e!uitable reliefs under #rt NIII sec0 60< of the 1;D> 2onstitution and rule 10 sec ? of the rules of court"

9ith the eectivit of the amparo rule on 4ct .: .++>, the petition was converted into anamparo petition with the admission of supporting a5davits upon motion of thereinpetitioners" Thus c issued #mparo writ in $A 1>;+;0 returnable to the 2# within 0das

from receipt of the order and remanding the petition to the 2# to conduct summar hearing"

2# granted privilege of #mparo writ and re!uired #3P 24 toL

- 3urnish petitioners and the 2a all o5cial and uno5cial reports of investigation underta8enin connection with their case e(cept those alread on Cle"

-To conCrm in writing the present places of assignment of Eilario and 2aigas"

-To produce all medical reports and charts, reports on an treatment givenJrecommendedand medicines prescribed if an to the petitioners, list of medical personnel who attended tothem 3eb 1: to #ug 1. .++>

c upheld the 2a Cndings based on the a5davit of Aamond )analo as his “account is

dotted with countless candid details of respondents harrowing e(perience and tenacious willto escape captured through his dierent senses and etched in his memor"

Aamond’s a5davit was corroborated b Aenaldo’s a5davit, reports prepared b forensicspecialist =r )olino and the pictures of scars left b the phsical in'uries inMicted on them"62 cited 4rtiF vs" $uatemala Interamerican 61;;><

9ith the secret nature of the enforced disappearance and the torture perpetrated on thevictim during detention, it logicall holds that much of the information and evidence of theordeal will come from the victims themselves and the veracit of their account will dependon the credibilit and candidness in their written and oral statements " Their statements canbe corroborated b other evidence such as phsical evidence left b the torture thesuered or landmar8s the can identif in the places where the were detained where

powerful militar o5cers are implicated, the hesitation of witnesses to testif against themcomes to no surprise"

Permutations of the Aight to ecurit of Person

- 3reedom from fear 6in the amparo conte(t the right to securit is “freedom from threat”

-$uarantee of bodil and pschological integrit or securit

-$uarantee of protection of one’s rights b the govt"

;:



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Is amparo writ available despite freedom form captivit and lac8 of restraintK

-Qes

&egal basisL

-#rtIII s. of consti which protects the privac and securit of the person himself

The right to securit of person is a guarantee of the secure !ualit of life" It includesthe right to e(ist and the right to en'oment of life while e(isting, and it is invaded not onlb a deprivation of life but also of those things which are necessar to the en'oment of lifeaccording to nature, temperament and lawful desires of the individual"

Is there a violation of freedom from threatK

-Qes, the manalos were freed from captivit not b virtue of a lawful order or voluntaril freedb their abductors" The possibilit of being e(ecuted stared them right in the ee while thewere in detention" 9ith their escape this continuing threat to their life is apparent, more sonow that the have surfaced and implicated speciCc o5cers in the militar not onl in theirown abduction and torture but also in those other persons 8nown to have disappeared"

ince their escape, respondents have been under concealment and protection bprivate citiFens because of the threat to their life, libert and securit" The threatvitiates their free will as the are forced to limit their movements or activities

Precisel because respondents are being shielded from the perpetrators of theirabduction, the cannot be e(pected to show evidence of overt acts of threat suchas face-to-face intimidation or written threats to their life, libert andsecurit" *onetheless, the circumstances of respondents’ abduction, detention,torture and escape reasonabl support a conclusion that there is an apparent threatthat the will again be abducted, tortured, and this time, even e(ecuted" Theseconstitute threats to their libert, securit, and life, actionable through a petition fora writ of amparo"

Is there a violation of the right to securit as protection b the govtK

-Qes, #part from the failure of militar elements to provide protection to respondentsb themselves perpetrating the abduction, detention, and torture, thealso miserabl failed in conducting an eective investigation of respondents’abduction as revealed b the testimon and investigation report of petitioners’ ownwitness, &t" 2ol" Auben BimeneF, Provost )arshall of the > th Infantr =ivision"


-ecretar of *ational =efense attested that in a )emorandum =irective dated4ctober 1, .++>, he issued a polic directive addressed to the #3P 2hief of ta,that the #3P should adopt rules of action in the event the writ of amparo is issuedb a competent court against an members of the #3P, which should essentiallinclude veriCcation of the identit of the aggrieved part recover and preservationof relevant evidence identiCcation of witnesses and securing statements fromthem determination of the cause, manner, location and time of death ordisappearance identiCcation and apprehension of the person or persons involved inthe death or disappearance and bringing of the suspected oenders before acompetent court

;0



Page | ;?


-however, almost a ear after the polic directive was issued b petitioner ecretarof *ational =efense on 4ctober 1, .++>, respondents have not been furnished theresults of the investigation which the now see8 through the instant petition for awrit of amparo"

Gnder these circumstances, there is substantial evidence to warrant theconclusion that there is a violation of respondents’ right to securit as a guaranteeof protection b the government"

W/I$ 4 A8>AS =A$A 9AD3-D1D1)DS!: 7anuar& 22; 233-C eb 2 233-

=e+nition and purposeJ

- To have data

- =esigned to protect the image or privac, honor information, self- determination

and freedom of information of a person"

-a procedure to safeguard individual freedom in the information age

Application of = rule

-Aight to privac, life libert or securit is violated or threatened 6s1<

-=oes not appl to purel propert or commercial concerns6)eralco v =eto 4ct 0.+1+<

Who ma& +le?

#ggrieved part

3or @B and @=

-an immediate famil member, i"e" the spouse, children, and parents of aggrievedpart

-#n ascendant, descendant or collateral relative of aggrieved part within the : th

civil degree of consanguinit or a5nit in default of those mentioned in the precedingparagraph

9here to Cle

-AT2 %Place where respondent or petitioner resides

-having 'urisdiction where data is gathered collected or stored"

7, 2#, 2 %when action concerns public data Cle of govt o5ces 6s<

Where Writ /eturnable?

AT2- before itself

2# or 7- 7efore itself or an 'ustice thereof 7efore AT2

;?



Page | ;>

2-7efore itself or an 'ustice thereof before 2# or 7 before AT2" 6sec:<

9here enforceableK - #nwhere in the PEI& 6s:<

=ocket or +ling fees

-Indigent Petitioner

e(empt

The petition shall be acted upon immediatel without pre'udice to the subse!uentsubmission of proof of indigence not later than 10 das from Cling of petition 6sec0<


-Parties personal circumstance 6?a<

-)anner the right to privac is violated or threatened and how it aects the right to life,libert, securit of the aggrieved part 6?b<

-#ctions and recourses ta8en b petitioner to secure data or information 6?c<

-&ocation of Cles, registers, or databases, the govt o5ce and the person in charge inpossession or in control of the date, information, if 8nown" 6? d<

Aeliefs praed for

-)a include rectiCcation, suppression or destruction of the database or informationor Cle 8ept b respondent 6?e<

-Threats, include praer for in'unction

-4ther relevant reliefs as are 'ust and e!uitable" 6?f<

Issuance of Writ 9s,:

- The court, 'ustice or 'udge shall immediatel order the issuance of the writ if on its face itought to issue"

OWho ma& issue?

- 2ler8 of 2ourt under the seal of the court

-In case of urgent necessit, the 'ustice of the 'udge ma issue writ under his or her ownhand and ma deputiFe an o5cer or person to serve it"

!ontents of WritC

-et the date and time for summar hearing of the petition which shall not be later than 1+

wor8ing das from the date of its issuance"

/efusal to issue or ser6e 5rit

PenaltL-2ontempt without pre'udice to other disciplinar actions 6sD<

Ser6ice or 5rit

-4n whom- the respondent

;>



Page | ;D

-7 whom- b a 'udicial o5cer or b a person deputiFed b the court, 'ustice or 'udge whoshall retain a cop on which to ma8e a return of service"

/eturn

-3orm- NeriCed with supporting a5davits

9hen made- 9ithin 0 wor8ing das after service of the writ, e(tendible for 'ustiCablereasons

!ontents of return 9s13:

&awful defenses

-*ational ecurit,

-tate secrets

-privileged communication

-conCdentialit of source of information or media or others

If respondent is in charge, in possession or in control of the said data or information,sub'ect to the petition-

-# disclosure of the data or information about the petitioner, the nature of such dataor information and the purpose for its collection

-steps or action ta8en b the respondent to ensure the securit and conCdentialit of the data or information

other relevant allegations pertaining to the resolution of the proceeding

$eneral denial of allegations in the petition not allowed

!ontempt 9s11:

3alse return

Aefusal to ma8e return

=isobedience or resistance to lawful process or order of the court"

ailure to make return 9s1%:

@( parte hearing

Aeliefs granted as the petition ma warrant unless court re!uires petitioner to submitevidence"

3ailure to Cle within the period allowed

-@( parte hearing ma follow

-Aeliefs ma be immediatel granted

earing in !hambers 9s12:

#llowed where respondent invo8es the following defensesL

;D



Page | ;;

-Aelease of data or information in !uestion shall compromise national securit orstate secrets or

-when the information cannot be divulged to the public to the due to its nature orprivileged character

Preliminar 2onference ma be restored to simplif issues and determine possibilit of

obtaining admissions or stipulations from the parties

'rohibited 'leadingsJ

Prohibited Pleadings and )otions" - The following pleadings and motions are prohibitedL

6a< )otion to dismiss

6b< )otion for e(tension of time to Cle return, opposition, a5davit, position paper andother pleadings

6c< =ilator motion for postponement

6d< )otion for a bill of particulars

6e< 2ounterclaim or cross-claim

6f< Third-part complaint

6g< Aepl

6h< )otion to declare respondent in default

6i< Intervention

6'< )emorandum

68< )otion for reconsideration of interlocutor orders or interim relief orders and

6l< Petition for certiorari, mandamus or prohibition against an interlocutor order"

Period to =ecide

9ithin ten das from the time the petition is submitted for decision"

If allegations in the petition are proven b substantial evidence, the court shall en'oin theact complained of or order the deletion, destruction or rectiCcation of the erroneous data orinformation and grant other relevant reliefs as ma be 'ust and e!uitable"

4therwise, the privilege shall be denied 6sec 1?<

Budgment

Gpon its Cnalit shall be enforced b sheri or an lawful o5cer as ma be designated bthe court within 0 wor8ing das 6sec1?<

@(ecuting o5cer shall ma8e a return within das from enforcement 6s1><

;;



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Aeturn on 'udgment

Ma’am 'iu: So, take note dalawa ang return dito sa writ of habeas data.

Aeturn shall stateL 3ull statement of proceedings under the writ

2omplete inventor of databases or information or document and article inspected,

updated rectiCed or deleted"

2opies served on the petitioner and the respondent 6s1><

#ppeal

9ho ma appealK %#n part ma appeal from the Cnal 'udgment or order to the 2 underAule :0 on !uestions of fact or law or both

9hen to appealK 0das from date of notice of the adverse 'udgment" The appeal shall begiven the same priorit as habeas corpus or ampere cases 6s1;<

4ther #ctions

E= Petition Aule does not preclude Cling of separate criminal civil or administrative actions6sec.+<

2riminal action commenced Crst 6s.1<

-no separate petition for the writ shall be Cled"

-E= reliefs available b motion in the criminal case

-E= rule shall govern the disposition of reliefs available under the E= rule

E= petition Cled Crst 6..<

-E= petition to be consolidated with the subse!uent criminal action"

-#fter consolidation, E= rule shall continue to appl to the disposition of the reliefs inthe E= petitions

specpro for 2nd exam (final)

Documents