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R ULE ON C USTODY OF M INORS

AND W R IT OF H ABEAS C ORPUS IN


R EL AT ION T O THE C USTODY OF
M INORS
Who may file the petition: A verified petition for the
rightful custody of a minor may be filed by any
person claiming such right (Sec.2).
Where to file petition: Family Court of the province
or city where the petitioner resides or where the minor
may be found (Sec.3).
The petition may however be filed with the regular
court in the absence of the presiding judge of the
Family Court, provided however that the regular court
shall refer the case to the Family Court as soon as its
presiding judge returns to duty.
The petition may also be filed with the SC, CA, or with
any of its members and, if so granted the writ shall be
enforceable anywhere in the Philippines. The writ
may be made returnable to a Family Court or to any
regular court within the region where the petitioner
resides or where the minor may be found for hearing
and decision on the merits.
Contents of verified petition (P-NOS)
1. The personal circumstances of the petitioner and
respondent;
2. The name, age and present whereabouts of the
minor and his or her relationship to the petitioner
and respondent;
3. The material operative facts constituting deprivation
of custody;
4. Such other matters which are relevant to the
custody of minor (Sec.4).
In Sombong v. Court of Appeals, et al. (G.R. No.
111876, January 31, 1996), the Court laid down the
following requisites in petitions for habeas corpus
involving minors:
1. That the petitioner has the right of custody over the
minor;
2. That the rightful custody of the minor is being
withheld from the petitioner by the respondent; and
3. That it is to the best interest of the minor concerned
to be in the custody of petitioner and not that of the
respondent.

Motion to dismiss is not allowed except on the


ground of lack of jurisdiction over the subject matter
or the parties (Sec.6).
Respondent must file a verified answer within 5 days
from the service of summons and copy of the petition
(Sec.7).
Pre-trial is mandatory (Sec.9).
Effects of failure to appear at the pre-trial
1. If the petitioner fails to appear personally at the pretrial, the case shall be dismissed, unless his
counsel or a duly authorized representative
appears in court and proves a valid excuse for the
non-appearance of the petitioner;
2. If the respondent has filed his answer but fails to
appear at the pre-trial, the petitioner shall be
allowed to present his evidence ex-parte. The court
shall then render judgment on the basis of the
pleadings and the evidence thus presented (Sec.
11).
Failure to file the pre-trial brief or to comply with its
required content shall have the same effect as failure
to appear at the pre-trial (Sec. 10).
Provisional order awarding custody: As far as
practicable, the following order of preference shall be
observed in the award of custody: (BEG BAO)
1. Both parents jointly;
2. Either parent, taking into account all relevant
considerations, especially the choice of the minor
over seven years of age and of sufficient
discernment unless the parent chosen is unfit;
3. The grandparent or if there are several
grandparents, the grandparent chosen by the minor
over seven years of age and of sufficient
discernment, unless the grandparent chosen is unfit
or disqualified;
4. The eldest brother or sister over twenty one (21)
years of age unless he or she is unfit or
disqualified;
5. The actual custodian of the minor over twenty one
(21) years of age, unless the former is unfit or
disqualified; or
6. Any other person or institution the court may deem
suitable to provide proper care and guidance for the
minor (Sec.13).

Temporary visitation rights: The court shall provide


in its order awarding provisional custody appropriate
visitation rights to the non - custodial parent or
parents unless the court finds said parent or parents
unfit or disqualified (Sec.15).
Hold Departure Order: The minor child subject of the
petition shall not be brought out of the country without
prior order from the court while the petition is pending.
The Court, motu proprio or upon application under
oath, may issue an ex parte hold departure order
(Sec.16).
Note: The court may also issue a Protection Order
(Sec.17).
Appeal : Notice of appeal within 15 days from notice
of denial of motion for reconsideration or new trial
(Sec.19).
Note: No appeal shall be allowed unless a motion for
reconsideration or new trial has been filed.
Petition for Writ of Habeas Corpus
Shall be enforceable within its judicial region to which
the Family Court belongs (Sec. 20).

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