1.01 TO WHAT CASES DOES HABEAS CORPUS EXTEND?

under Section 1, the writ of habeas corpus shall extend to

all cases of:
A. illegal confinement or detention by which any person is
deprived of his liberty, or
B. By which the rightful custody thereto except as
otherwise expressly provided by law.
1.02 DEFINE WRIT OF HABEAS CORPUS.
it is proceeding which provides for two stages whereby: (1)
any person restrained of his liberty may be released from
any kind of illegal detention: (2) are detained from the
control of those who are entitled to their custody. It
requires the determination of whether his detention or
confinement is illegal or not or whether by his detention,
another person is deprived of his legal custody over him.

bouvier’s law Dictionary defines habeas corpus as a

writ directed to the person detaining another and
commanding him to produce the body of the prisoner at a
certain time and places, with the day and the cause of his
caption and detention, to do and receive whatsoever the
court or judge awarding the writ shall consider in that
behalf.
1.03 WHAT IS THE PURPOSE OF THE WRIT OF HABEAS CORPUS?
The purpose of the writ is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and
relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of such person is
 sufficient.

This is elaborated in the case of MANGUILA V. JUDGE

PANGILINAN where the highest tribunal ruled that the
object of the WRIT OF HABEAS CORPUS is to inquire into
the legality of detention, and if the detention is found to
be illegal, to require the release of the detainee. Equally
well settled, however, is that the writ will not issue where
the person in whose behalf the writ is sought is judged
with jurisdiction or by virtue of a judgment or of a court of
record.
1.04 EXPLAIN THE CONCEPT OF RESTRAINT.
Actual and effective, and not merely nominal or moral,
restraint is required. (Zagala v. ilustre, 48 Phil 282)

However, actual physical restraint is not always required;

any restraint which will prejudice freedom of action is
sufficient; (Moncupa v. Enrile et al. G.R. No. 63345,
January 30,1986)

It is more than mere moral restraint; in fact, the law

requires actual or physical confinement. However, the fact
that no physical force was exerted to keep a person does
not less real the deprivation of his personal freedom which
includes the freedom of movement, freedom to transfer
from one place to another, freedom to choose one’s
residence. Freedom may be lost due to internal moral
compulsion, to founded or groundless fear, to erroneous
belief in the existence of an imaginary power of an
 impostor to cause harm if not blindly obeyed, to any other
psychological element, that may curtail the mental faculty
of choice or the unhampered exercise of the will. If the
actual effect of such psychological spell is to place a
person at the mercy of another, the victim is entitled to
the protection of courts of justice as much as the
individual who is illegally deprived of liberty by duress or
physical coercion. (Caunca v. Salazar and Justo, G.R no. L-
2690, 82Phil. 851)
1.05 HOW SHOULD THE FORMALITIES REQUIRE FOR PETITIONS
FOR HABEAS CORPUS UNDER SECTION3 OF RULE 102 BE
CONSTRUED?

It must be construed liberally. In the case of Martin Gibbs

Fletcher v. The director of bureau of Corrections, July 17,
2009 UDK, The Supreme Court declared that strict
compliance with the technical requirements for a habeas
corpus petition as provided in the Rules of Court may be
dispensed with where the allegation in the application are
sufficient to make out a case for habeas corpus.

Where the restraint of liberty is allegedly authored by the

State, the very entity tasked to ensure the liberty off all
person (citizens and aliens alike) within its jurisdiction,
courts must be vigilant in extending the habeas corpus
writ of liberty to technicalities not only defeats the spirit
that animates the writ but also waters down the precious
right that the writ seeks to protect, the right to liberty. To
dilute the remedy that guarantees protection to the right
 is to negate the right itself. Thus the Court will not unduly
confine the writ of habeas corpus in the prison in the
prison walls of technically. Otherwise, it will betray its
constitutional mandate to promulgate rules concerning
the protection and enforcement of constitutional rights.

RULE 102 Habeas Corpus

1.06 DISCUSS THE NATURE OF THE PETTION FOR HABEAS

CORPUS

Petition for habeas corpus is like a proceeding in rem as it

is an inquisition by the government, at the suggestion and
instance of an individual, most probably, but still in the
name and capacity of the sovereign, it is also constituted
for the purpose of fixing the status of a person. There can
be no judgment entered against anybody since there is no
real plaintiff and defendant (Alimpos v. CA, 106 SCRA 159)

Moreover:
1. It is not in the nature of a writ of error; nor intended as
substitute for the trial court’s function.
2. It cannot take the place of appeal, certiorari or writ of
error.
3. The writ cannot be used to investigate and consider
questions of error that might be raised relating to
procedure or on the merits.

SPECIAL PROCEEDINGS
4. The inquiry in a habeas corpus proceeding is addressed
to the question of whether the proceedings and the
assailed order are, for any reason, null and void.
5. The writ is not ordinarily granted where the law
provides for other remedies in the regular course, and in
the absence of exceptional circumstances.
6. Moreover, habeas corpus should not be granted in
advance of trial.
7. The orderly course of trial must be pursued and the
usual remedies exhausted before resorting to the writ
where exceptional circumstances are extant.
8. Habeas Corpus is a summary remedy. It is analogous to
a proceeding in rem when instituted for the sole purpose
of having the person of restraint presented before the
judge in order that the cause of his detention may be
inquired into and his statements final.
9. The writ of habeas corpus does not upon the prisoner
who seek relief, but upon the person who holds him in
what is alleged to be unlawful authority. Hence, the only
parties before the court are the petitioner (prisoner) and
the person holding the petitioner in custody, and the only
question to be resolved is whether the custodian has
authority to deprive the petitioner of his liberty. The writ
may be denied if the petitioner fails to show facts that he
is entitled thereto ex merito justicias.
10. A writ of habeas corpus, which is regarded as a
“palladium of liberty” is a prerogative writ which does not
issues as a matter of right but in the sound discretion of
 the court of judges. It is, however. A writ of right on
proper formalities being made by proof. Resort to the writ
is to inquire into the criminal act of which a complaint is
made but unto the right of liberty, not withstanding the
act and the immediate purpose to be reserved is relief
from illegal restraint. The primary, if not the only object of
the writ of habeas corpus ad sub-juciendum is to
determine the legality of the restraint under which a
person is held.

1.07 WHAT FACTORS MUST THE COURT CONSIDER IN

GRANTING THE WRIT OF HABEAS CORPUS?

Fundamentally, in order to justify the grant of the writ of

habeas corpus, restraint of liberty must be in the nature of
an illegal and involuntary deprivation of freedom of action.
In general, its purpose is to determine whether or not a
particular person is legally held. A prime specification of an
application for an application for writ of habeas corpus, in
fact, is an actual and effective, and not merely nominal or
moral, illegal restraint of liberty. The writ of habeas corpus
was devised and exist as a speedy and effectual remedy
relieve person from unlawful restraint, and as the best and
only sufficient defense of person freedom. A prime
specification of an application for writ of habeas corpus is
restraint of liberty, the essential object and purpose of the
writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and
to relieve a person therefrom if such restraint is illegal.
 Any restraint which will preclude freedom of action is
sufficient”.

In passing upon a petition for habeas corpus, a court or

judge must first inquire into whether the petitioner is
being restraint of his liberty. If he is not the writ will be
refused. Inquiry into the cause of detention will proceed
only where such restraint exists. If the alleged cause is
thereafter found to be unlawful, then the writ should be
granted and the petitioner discharged. Needless to state, if
otherwise, again the writ will be refused.

While habeas corpus is a writ of right, it will not issues as a

matter of course or as mere perfunctory operation on the
filing of the petition. Judicial discretion is called for in its
issuance and it must be clear to the judge to whom the
petition is presented that, prima facie, the petitioner is
entitled to the writ. It is only if the court is satisfied that a
person is being unlawfully restrained of his liberty will the
petition for habeas corpus be granted. If the respondents
are not detaining or restraining the applicant or the person
in whose behalf the petition is filed, the petition should be
dismissed (In the matter of the petition of habeas corpus of
Eufemia E. Rodriguez v .Villanueva, G.R. No. 169482,
January 29, 2008)

1.08 CITE CASES WHEREIN THE WRIT MAY BE EXTENDED.

The use of habeas corpus, not a petition for mandamus, to
test the legality of an alien’s detetion and proposed
deportation from Philippines is a settled practice because
aside from being thorough and complete, it affords
prompt relief from unlawful imprisonment.(Bisschop v.
Galang, 8 SCRA 244)

The writ of habeas corpus extend also to all case by which

the rightful custody of a person is withheld from the
person entitled thereto. It is proper legal remedy to enable
parents to regain the custody of a minor child even if the
latter be in the custody of a third person of his own free
will. It may even be said that in custody cases involving
minors, the question of illegal and involuntary restraint of
liberty is not the underlying rationale for the availability of
the writ as a remedy. Rather it is prosecuted for the
purpose of determining the right of custody over a child.
(Tijing v. CA, 354 SCRA 663[1996]) Habeas Corpus may be
resorted to in case where rightful custody is withheld from
a person entitled thereto. Under Article 211 of the family
Code, respondent and petitioner have joint parental
authority over their child and consequently joint custody.
Further, although the couple is separated de facto, the
issue of custody has yet to be adjudicated by the court. In
the absence of a judicial grant of custody to one parent,
both parents are still entitled to the custody of their child.
In the present case, private respondent’s cause of action is
the deprivation of his right to see his child as alleged in his
petition. Hence the remedy of habeas corpus is available
to him. (Marie Antonette Abigail C. Salientes, et.al. v.
Loran S.D Abanilla, et.al G.R. No. 162734, August 29, 2006)
1.09 WHEN THE RELEASE OF THE PERSONS IN WHOSE BEHALF
THE APPLICATION FOR A WRIT OF HABEAS CORPUS WAS
FILED IS EFFECTED, WILL IT RENDER THE PETITION MOOT
AND ACADEMIC?

Yes when the release of the person in whose behalf the

application for a Writ of Habeas Corpus was filed effect,
the petition for the issuance of the writ becomes moot
and academic. Courts of justice constituted to pass upon
substantial rights will not consider question where no
actual interests are involved. Thus, the well settled rule
that courts will not determine a moot question. Where the
issues have become moot and academic, there cease to be
any justiciable controversy, thus rendering the resolution
of the same of no practical value. The Court will, therefore,
abstain from expressing its opinion in a case where no
legal relief is needed or called for. (In the matter of the
petition for Habeas Corpus of Cezari Gonzales and Julius
Mesa Roberto Rafael Pulido v. Gen. Abu, et al,. G.R. No.
170924, July 4, 2007)

1.10 IS THERE AN EXCEPTION?

Yes the court may not dismiss a petition for writ of habeas
corpus on the ground that the minor had already been
produced in court. Such fact will not render the petition
moot and academic. Section 1. Rule 102 of the Rules of
court states that the writ of habeas corpus shall extend to
all case where the rightful custody of any person is
withheld from the person entitled thereto. In case
involving minors, the purpose of a petition for habeas
corpus is not limited to the petition for habeas corpus is to
determine who has the rightful custody over the child. In
Tijing v. Court of Appeals, the Court held that;

The writ habeas corpus extends to all cases of illegal

confinement or detention by which any person is deprived
of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto. Thus
it is the proper legal remedy to enable parents to regain
the custody of a minor child even if the latter be in the
custody of a third person of his own free will. It may even
be said that in custody case involving minors, the question
of illegal and involuntary restraint of liberty is not the
underlying rationale for the availability of the writ as a
remedy. Rather, it is prosecuted for the purpose of
determining the right of custody over a child.( Emphasis
supplied)

In case, the RTC erred when it hastily dismissed the action

for having become moot after Maryl Joy was produced
before the trial court. It should have conduct a trial to
determine who had the rightful custody over Maryl Joy. In
petition for habeas corpus and awarded the custodyof
Maryl Joy to the spouse Gallardo without sufficient basis.
(Noel B, Bagtas v. Hon. Ruth C. Santos, Presiding judge of
Regional Trial Court, Branch 72, Antipolo City, and Antonio
 and Rosita Gallardo, G.R. No.166682, November 27,2009)

2.01 DOES THE COURT OF APPEALS HAVE JURISDICTION TO

ISSUE WRIT OF HABEAS CORPUS IN CASE INVOLVING CUSTODY
OF MINORS IN THE LIGHT OF THE PROVISION OF R.A. NO. 8369
GIVING FAMILY COURTS EXCLUSIVE ORIGINAL JURISDICTION
OVER SUCH PRTITIONS?

Yes R.A. No.8369 did not divest the Court of Appeals and the
Supreme Court of their jurisdiction over Habeas Corpus case
involving the custody of minors. In any case, whatever
uncertainty there may be, it has been settled with the adoption
of A.M No.03-03-04 SC Re: Rule on Custody of Minors and Writ
of Habeas Corpus in Relation to Custody of Minors. Section 20
of the Rule provides that the petition may likewise be filed with
the Supreme Court, Court of Appeals, or with any of its
members and, if so granted, the writ shall be enforceable
anywhere in the Philippines. (In the Matter of Application for
Writ of Habeas Corpus Richard Brian Thornton v. Adelfa
Francisco Thornton, G.R. No. 154598, August 16, 2004)

2.02 MAY A WIFE SECURE A WRIT OF HABEAS CORPUS TO

COMPEL HER HUSBAND TO LIVE WITH HER IN CONJUGAL BLISS?

No, marital rights including coverture and living in conjugal

dwelling may not be enforced by the extraordinary writ of
habeas corpus. A writ of habeas corpus extend to all case of
illegal confinement or detention, or by which the rightful
custody of a person is withheld from the one entitled thereto.
No. court is empowered as a judicial authority to compel a
husband to live with his wife. Coverture cannot be enforced by
compulsion of writ of habeas corpus carried out by sheriffs or
any other process. This is matter beyond judicial authority and
is best left to the man and woman’s free choice.( Ilusorio v.
Bildner, G.R. No.139789,332 SCRA 169, MAY, 12 200)

No. court is empowered as a judicial authority to compel a

husband to live with his wife. Coverture cannot be enforced by
compulsion of writ of habeas corpus carried out by sheriffs or
any other process. This is a matter beyond judicial authority and
is best left to the man and woman’s free choice. (Ilusorio v.
Blinder, G.R. No.139789,332 SCRA 169, MAY 12,2000)

To justify the grant of the petition, the restraint of Liberty must

be an illegal and involuntary deprevation of freedom of action.
The illegal restraint of liberty must be actual and effective, not
merely nominal or moral. (Erlinda K. Ilusorio v. Erlinda I. Bildner
and Sylvia K. Ilusorio G.R. No. 139808, MAY 12, 2000)

2.03 MAY A HUSBAND REFUSE TO SEE HIS WIFE WITH OUT

THREAT OF ANY PENALTY ATTACHED TO THE EXERCISE OF HIS
RIGHT?

Yes in case the husband refuse to see his wife for private
reasons, he is at liberty to do so without threat of any penalty
attached to the exercise of his right.
When the court ordered the grant of visitation rights, it also
emphasized that the same shall be enforced under the penalty
of contempt in case of violation or refusal to comply. Such
assertion of raw, naked power is unnecessary. In the case at
bar, the court of Appeals missed the fact that the case did not
involve the right of a parent to visit minor child but the right of
a wife to visit a husband. In case the husband refuse to see his
wife for private reason, he is at liberty to do so without threat
of any penalty attached to the exercise of his right. (Ilusorio v.
Blinder, G.R. No. 139789,332 SCRA 169, MAY, 12, 2000)

2.04 MAY A WRIT OF HABEAS CORPUS BE ISSUED IF THE

DETENTION IS BY VIRTUE OF VALID JUDGEMENT?

No, the ultimate purpose of the Writ of Habeas Corpus is to

relieve a person from unlawful restraint. The writ exist as a
speedy and effectual remedy to relieve person from unlawful
restraint and as an effective defense of personal freedom. It is
issued only for the lone purpose of obtaining relief for those
illegally confined or imprisoned without sufficient legal basis. It
is not issued when the person is in custody because of a judicial
process or a valid judgment (Adonis v. Superintendent Teroso,
G.R. No. 182855, June 5, 2013)

In De Joya v. The Jail Warden of Batangas City, 417 SCRA 636

the Supreme Court ruled that the writ may not be availed of
when the person in custody is under a judicial process or by
virtue of a valid judgment. The rule is that if a person alleged to
be restrained of his liberty is in custody of an officer under
process issued by a court or judge or by virtue of a judgment or
order of a court of record, the writ of habeas corpus will not be
allowed.

Corollary to this, the Rules of court under Rule 102 expressly

provides:

Sec. 4 When writ not allowed or discharge authorized.- If it

appears that the person alleged to be restrained of his liberty
is in the custody of an officer under process issued by a court
or judge or by virtue of a judgment or order of a court of
record, and that the judge had Jurisdiction to issue the
process, render the judgment, or make the order, the writ
shall not be allowed; or if the jurisdiction appears after the writ
is allowed, the person shall not be discharge by reason of any
informality or defect in the process, judgment, or order. Nor
shall anything in this rule be held to authorize the discharge of
a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under
lawful judgment. (Emphasis supplied)

JEANY –VI G. KIANI v, THE BID

G.R. No. 160922, February 27, 2006

SUPREME COURT’S RULING: In this case, when petitioner filed

her Petition for habeas corpus with the RTC in behalf of her
violation of section 37(a)(7) and Section 45 of the Philippine
Immigration Act of 1940, as amended. The filing of the Charge
Sheet before the BSI cured whatever irregularities or infirmities
were attendant to his arrest. The remedy of petitioner was to
file a motion for the dismissal of the Charge Sheet and the
Mission Order of the Immigration Commissioner, not a petition
for a writ of Habeas Corpus before the RTC. The RTC had no
authority to nullify the mission Order issued by the Immigration
Commission, much less set aside the arrest of Javed Kiani.

Once a person detained is duly charged in court, he may longer

question his detention through a petition for issuance of a writ
of habeas corpus. His remedy would be to quash the
information and/or the warrant of arrest duly issued. The Writ
of Habeas Corpus should not be allowed after the party sought
to be released had been charged before any court.

2.05 ARE THERE INSTANCES A WHERE A WRIT OF HABEAS

CORPUS MAY BE ISSUED EVEN IF THE DETENTION IS BY VIRTUE
OF A JUDGMENT?

Yes, the rule that habeas corpus may not be availed of if the
detention is by of a valid judgment is not absolute.
The writ may be allowed as a post-conviction remedy when the
proceeding leading to the conviction were attended by any of
the following exceptional circumstances:

1. There was a deprivation of a constitutional right resulting

in the restraint of a person:
2. The court had no jurisdiction to impose the sentence;
 3. The imposed penalty was excessive, thus voiding the
sentence as to such excess. ( Samuel Barredo y Golani v.
No. 168782, August 2, 2007)

2.06 BAR Q. [2005]

Mariano was convicted by the regional Trial Court for raping
Victoria and meted the penalty of reclusion perpetua. While
serving sentence at the National Penitentiary, Mariano and
Victoria were married. Mariano filed a motion in said court for
his release from the penitentiary on his claim that under R.A.
No. 8353, his, marriage to Victoria extinguished the criminal
action against him rape, as well as the penalty imposed on
him. However, the court denied the motion on the ground
that it had lost jurisdiction over the case after its decision had
become final and executory.

a. SUGGESTED ANSWER:
No. The court can never lose jurisdiction so long as its
decision has not yet been fully implemented and satisfied.
Family of a judgment cannot operate to divest a court of
its jurisdiction. The court retains an interest in seeing the
proper execution and implementation of its judgments,
and to that extent, may issue such orders necessary and
appropriate for these purpose.
b. What remedy/remedies should the counsel of Mariano
take to secure his proper and most expeditious release
from National Penitentiary? Explain.

SUGESTED ANSWER:
To secure the proper and most expeditious release of
Mariano from the National Penitentiary, his counsel
should file (a) a petition for habeas corpus for the illegal
confinement of Mariano (Rule 102), or (b) a motion in the
court which convicted him, to nullify the execution of his
sentence or the order of his commitment on the ground
that a supervening development had occurred despite the
finality of the judgment.

2.07 MAY HABEAS CORPUS BE GRANTED IF THE OF HIS

INDETERMINATE SENTENCE?

No. Petition for habeas corpus cannot be granted if the

accused has only served the minimum of his sentence as
he must serve his sentence up to its maximum term.(
Office of the Administrator v. Judge Perello. A.M No. RTJ –
05-1953, December 24, 2004)

3.00 MAY HABEAS CORPUS BE RESORTED TO WHERE

RIGHTFUL CUSTODY IS WITH HELD FROM A PERSON
ENTITLED THERETO?

Yes, as stated earlier, the writ of habeas corpus shall

extend to all case of illegal confinement or detention
by which any person is deprived of his liberty, or by
which the rightful custody of any person is with held
from the person entitled thereto except as otherwise
expressly provided by law.
 Thus in the case of Marie Antonette Abigail, et.al v.
Abanilla, G.R. No. 162734, August 29, the Supreme
Court explained that habeas corpus may be resorted
to in case where rightful custody is withheld from a
person entitled thereto under Article 211 of the
Family Code.

In the above – stated case respondent Loran and

petitioner Marie Antonette have joint parental authority
over their son and consequently joint custody. Further,
although the couple is separated de facto, the issue of
custody has yet to be adjudicated by the court. In the
absence of a judicial grant of custody to one parent, both
parents are still entitled to the custody of their child. In the
present case, private respondent’s cause of action is the
deprivation of his right to see his child as alleged in his
petition. Hence, the Court ruled that the remedy of habeas
corpus is available to him.

3.01 DOES THE STATE HAVE THE RIGHT TO INTERVENE IN

CUSTODY OF MINOR CASE?
Yes, the Supreme Court had the occasion to explain on the
power of the State to intervene rightful custody case of
habeas corpus. In the recent case of in the Matters of the
Petition for habeas Corpus of minor Shang ko Vingson Yu
Cabacaban, UDK No. 14 817, January 13, 2014, the
Supreme Court held;
 “Under Section 1. Rule 102 of the Rules of court, the writ of
habeas corpus is available not only in case of illegal
confinement or detention by which any person is deprived
of his liberty, but also in case involving the rightful custody
over a minor.

The general rule is that parents should have custody over

their minor children but the State has the right to intervene
where the parents treat them cruelly and abusively,
impairing their growth and well- being and leaving them
emotional scars that they carry throughout their lives
unless they are liberated from such parents and properly
counseled.”

4.01 BAR Q. [1998]

A was arrested on the strength of a warrant of arrest issued
by the RTC in connection with an information for
Homicide. W, the live-in partner of A filed a petition for
Habeas Corpus against A’s jailer and police investigators
with the Court of Appeals. Does W have the personality
to file the petition for Habeas Corpus
 SUGGESTED ANSWER;
Yes, W has the personality to file the petition for habeas
Corpus. The law is clear on the matter. A petition for the
issuance of the writ of habeas corpus may be filed by some
person in his behalf pursuant to Rule 102 of the Rules of
court. A’s live-in partner may, therefore, file the same.

4.02 BAR Q. [2007]

Husband H files a petition for declaration of nullity of

marriage before the RTC of Pasig City. Wife W files a
petition for habeas Corpus before the RTC of Pasay City,
praying for custody over their minor child. H files a
motion to dismiss the wife’s petition on the ground of
the pendency of the other case Rule.

SUGGESTED ANSWER;
The motion to dismiss the petition for habeas corpus
should be granted. By filing the case for declaration of
nullity of marriage, H automatically submitted the issue of
the custody of the child as an incident thereof. Section 21
of the “Rule on declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages” directs
the court taking jurisdiction over a petition for declaration
of nullity of marriages to resolve the custody of common
children, by mere motion of either party, it could only
mean that the filing of a new action is not necessary for
the court to consider the issue of custody of a minor. (Yu v.
Yu, G.R. No. 164915 10, 2006)

4.03 BAR Q. [2011]

Dorothy filed a petition for writ of habeas corpus against
her husband, Roy, to get from him custody of the their 5-
years old son, Jeff. The court granted the petition and
required Roy to turn over Jeff to his mother. Roy sought
reconsideration but the court denied it. He filed a notice
of appeal five days from receipt of the order denying his
motion for reconsideration. Did he file a timely notice of
appeal?

(A) No, since he filed it more than two days after receipt of
the decision granting the petition.
(B) No, since he filed more than two days after receipt of
the order denying his motion for reconsideration.
(C) Yes, since he filed it within 15 days from receipt of the
denial of his motion for reconsideration.
(D) Yes, since he filed it within seven days from receipt of
the denial of his motion for reconsideration.
5.01 IS A MOTION FOR EXECUTION NECESSARY TO EFFECT
A HABEAS CORPUS DECISION?

No, there is no need to file a motion for execution for

habeas corpus decision. Since the right to life liberty to file,
liberty and security of a person is at stake, the proceedings
should not be delayed and execution of any decision
thereon must be expedited as soon as possible since any
form of delay, may jeopardize the very rights these writs
seek to immediately protect. (Colonel Rogelio Boac, et al v,
Erlinda T. Cadapan, et al, G.R. Nos, 184461-62, 184495,
187109, M 31, 2011)

5.02 DISCUSS THE POWER OF THE PRESIDENT AND

CONGRESS TO SUSPEND THE PRIVELEGE OF THE WRIT OF
HABEAS CORPUS.
The President and Congress act in tandem in exercising the
power to proclaim martial law or suspend the privilege of
the writ of habeas corpus. they exercise the power, not
only sequentially, but in a since jointly since, after the
president has initiated the proclamation or the
suspension, only the Congress can maintain the same
based on its evaluation of the situation on the ground, a
power that the President does not have. (Philip Sigfrid
 Fortunv. Gloria Macapagal - Arroyo, et al, G.R. No. 190293,
March 20 2012)

6.01 CASE
SALIENTES, et al. v. ABANILLA, et al. G.R. No. 162734, August
29, 2006
FACTS: Private respondent Loran S.D. Abanilla and petitioner
Marie Antonette Abigail C. Salientes are the parents of the
minor Lorenzo Emmanuel S. Abanilla. They lived with Marie
Antonette’s parents petitioners Orlando B. Salientes and
Rosario C. Salientes. Due to in-law’s problems, private
respondent suggested to his wife that they transfer to their
own house, but Marie Antonette refused. So he alone left the
house of the Salientes. Thereafter, he was prevented from
seeing his son.

Later, Loran S.D. Abanilla in his personal capacity and as the

representative of his son, filed a Petition for Habeas Corpus and
Custody. The trial court issued the following order; Upon verified
Petition for a Writ of Habeas Corpus by petitioners, respondents
Marie Antonette Abigail C. Salientes, Orlando B. Salientes and
Rosario C. Salientes, Orlando B. Salientes and Rosario C. Salientes
are hereby directed to produce and bring before this court the body
o minor Lorenz Emmanuel Salientes Abanilla on January 31, 2003 at
1:00 o’clock in the afternoon and to show cause why the said child
should not be discharged from restraint.

Petitioners went to the Supreme Court and asserted that habeas

corpus is unavailable against the mother who, under the law, has the
right of custody of the minor.

ISSUE; Whether or not habeas corpus is a proper remedy against

the child’s mother by the father who was prevented to see his child.

SUPREME COURT’S RULING; As correctly pointed out by the Court

of Appeals, the assailed January 23,2003 Order of the trial court did
not grant custody of the minor to any of the parties but merely
directed petitioners to produce the minor in court and explain why
they are restraining his liberty. The assailed order was an
interlocutory order precedent to the trial court’s full inquiry into the
issue of custody, which was still pending before it.
Article 213 of the Family Code deals with the judicial adjudication
of custody and serves as a guideline for the proper award of custody
by the court. Petitioners can raise it as a counter argument for
private respondent’s petition for custody. But it is not a basis for
preventing the father to see his own child. Nothing in the said
provision disallows a father from seeing or visiting his child under
seven years of age.
 Again, it bears stressing that the order did not grant custody of
the minor to any of the parties but merely directed petitioners to
produce the minor in court and explain why private respondent is
prevented from seeing his child. This is in line with the directive in
Section 9 of A.M.03-04-04-SC that within 15 days after the filling of
the answer or the expiration of the period to file answer, the court
shall issue an order requiring the respond (herein petitioners) to
present the minor before the court. This was exactly what the court
did.

6.02 MAY A PETITION FOR WRIT OF HABEAS CORPUS BE FILED

TOGETHER WITH A PETITION FOR CERTIORARI?

YES. The writ of habeas corpus and certiorari may be ancillary to

each other where necessary to give effect to the supervision powers
of the higher courts. A writ of habeas corpus reaches the body and
the jurisdiction matters. A writ of certiorari reaches the records but
not the body. Hence, a writ of habeas corpus may be used with the
writ of certiorari for the purpose of review. However, habeas corpus
does not lie where the petitioner has the remedy of appeal or
certiorari because it will not be permitted to perform the function of
a writ of error or appeal for the purpose of reviewing errors or
irregularities in the proceedings of s court having jurisdiction over
the person and the subject matter. (Galvez v. CA 237 SCRA
685[1994]
6.03 CITE CONSTITUTIONAL PROVISION THAT ARE RELATED TO THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS.

The following are the constitutional provision on the writ of habeas

corpus.

BILL OF RIGHTS
ARTICLE III, SECTION 13
All persons, except those charged with offense punished by reclusion
perpetua when evidence of guilt is strong, shall before conviction, be
bailable sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is suspended. Excessive
shall not be required.

ARTICLE III, SECTION 15

The privilege of the writ of habeas corpus shall not be suspended
except in case of invasion or rebellion when the public safety requires
it.

EXCUTIVE DEPARTMENT
ARTICLE VII, SECTION 18
“The President shall be the commander –in-chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion
or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place the Philippines or
any part thereof under martial law. Within forty-eight hours from
the proclamation of martial law or the suspension of the privilege of
writ of habeas corpus, the President shall submit a report in person
or in writing to the Congress. The Congress, voting jointly, by a vote
of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President,
the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it xxx..

JUDICIAL DEPARTMENT
ARTICLE VIII, SECTION 5
(1) Exercise original jurisdiction over case affecting ambassador
other public ministers and consuls, and over and habeas corpus xxx.”

7.01 WHO MAY GRANT THE WRIT?

The writ of habeas may be granted by the following;
1. The Supreme Court. The writ is enforceable throughout the
Philippines.
2. The Court of Appeals. The writ is enforceable throughout the
Philippines.
3. The Regional Trial Court. The writ is enforceable within its
respective judicial region.
4. When there is no available RTC judge, the Municipal Trial Court.
5. Sandigan bayan only if it is in aid of its appellate jurisdiction

7.02 BAR Q. [2003]

Widow A and her two children both girls, aged 8 and 12 years old,
reside in Angeles City, Pampanga. A leaves her two daughters in
their house at night because she works in a brothel as a prostitute.
Realizing the danger to the morals of these two girls, B, the fathers
of the deceased husband of A, files a petition for habeas corpus
against A for the custody of the girls in the Family Court in Angeles
City. In said petition, B alleges that he is entitled to the custody of
the two girls because their mother is living a disgraceful life. The
court issues the writ of habeas corpus. When A learns of the
petition and the writ, she brings her two children to Cebu City. At
the expense of B, the sheriff of the said Family Court goes to Cebu
raising the following defense;
(A) The enforceable of the writ of habeas corpus in Cebu City is
illegal; and
(B) B has no personality to institute the petition.
Resolve the petition in the light of the above defense of A.

SUGGESTED ANSWER;
(A) The writ of habeas corpus issued by the Family Court in Angeles
City cannot be enforced in Cebu City, the latter, not being within the
judicial region of the issuing court. Pursuant to the provision of the
Rules of Court, the writ is enforceable only within the judicial region
except when the same is issued by the Court of Appeals or the
Supreme Court in which case, it is enforceable anywhere in the
Philippines.
(B) As the grandparent of the two minor girls, B has the right of
custody as against A, the mother who is a prostitute. Moreso,
because his son, the father of the minor children, is already dead.

7.03 WHAT MUST BE ALLEGED IN THE PETITION FOR HABEAS

CORPUS?
THE FOLLOWING SHALL BE SET FORTH;
(a) That the person in whose behalf the application is made is
imprisoned or restraint of his liberty;
(b) The officer or name of the person by whom he is so
imprisoned or restraint; or if both are unknown or uncertain,
such officer or person may be describe by an assumed
appellation, and the person who is served with the writ shall be
deemed the person intended;
(c) The place where he is so imprisoned or restrained, if known;
(d) A copy of the commitment or cause of detention of such
person, if it can be procured without impairing the efficiency of
the remedy; or if the imprisonment or restraint is without any
legal authority, such fact shall appear.

7.04 WHO HAS THE BURDEN OF PROVING ILLEGAL

RESTRAINT?
As a general rule, the burden of proving illegal restraint by the
respondent rests on the petitioner who attaches such
restraints.
(Jackson v. Macalino, 416 SCRA 390)

8.01 WHEN IS A WRIT NOT ALLOWED OR WHEN IS DISCHARGE

NOT AUTHORIZED?

If it appears that the person alleged to be restrained of his

liberty is in the custody of an officer under process issued by a
court or by a court or by virtue of a judgment or order of a
court of record, and that the court had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall
not be allowed.
if the person appears after the writ is allowed, the person shall
not be discharge by reason of any informality or defect in the
process, judgment , or order. Nor shall anything in this rule be
held to authorize the discharge of a person charged with or
convicted of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.

8.02 BAR Q [ 1998]

A was arrested on the strength of a warrant of arrest issued
by the RTC in connection with an Information for Homicide.
W, the live-in partner of A filed a Petition for Habeas Corpus
against A’s jailer and police investigator with the Court of
Appeals.
1) x x x
2) Is the petition tenable?
SUGGESTED ANSWER;
No, the petition for habeas corpus is not tenable. The arrest in
this case was made by virtue of a warrant or arrest issued by a
court of competent jurisdiction. It is a well-entrenched rule that
once a detained person is duly charged in court, he may no
longer question his detention through a petition for issuance of
a writ of habeas corpus.
8.03 DISTINGUISH “PRELIMINARY CITATION” FROM
“PEREMPTORY WRIT”.
 Where the person is detained under governmental authority
and the illegality of his detention is not patent from the petition
for the writ, the court may issue a citation to the government
officer having the person in his custody to show cause why the
writ of habeas corpus should not issue. This is known as a
preliminary citation, as distinguished from the peremptory
writ. The latter is issued when the cause of the detention
appears to be patently illegal, and the non-compliance
wherewith is punishable. (Lee Yick Hon v. Insular Collector of
Customs, 41 Phil 548)

8.04 WHAT IS THE IMPLICATION OF THE RETURN?

The allegation in the return is deemed admitted if the same are

not controverted. This being so, failure to file a return,
notwithstanding an order requiring petitioner to reply thereto,
amount to an admission of the truth of the facts stated in the
return and justifies dismissal of the petition for habeas corpus.

8. 05 CASE
GO v. RAMOS
G.R. No. 167569, September 4, 2009
DOCTRINES;

1. Once a person detained is duly charged in court, he may no longer

question his detention through a petition for issuance of a writ of
habeas corpus. The writ of habeas corpus should not be allowed
after the party sought to be released had been charged before any
court.
2. The term “court” in this context includes quasi-judicial bodies of
governmental agencies authorized to order the person’s
confinement, like the Deportation Board of the Bureau of
Immigration. Likewise, the cancellation of his bail cannot be assailed
via a petition for habeas corpus. When an alien is detained by the
Bureau of Immigration for Deportation pursuant to an order of
Deportation by the Deportation Board, the Regional Trial Courts
have no power to release such alien on bail even in habeas corpus
proceedings because there is no law authorizing it.

FACTS: A complaint – affidavit was filed at the then Bureau of

Immigration and Deportation (BID) against Jimmy Gaisano. The
complaint avers that Jimmy is not a Filipino citizen. Jimmy avers that
he is a Filipino citizen because his father who is married to a Filipino
elected Filipino citizenship under the 1935 Constitution, hence
making him a natural – born Filipino citizen. The Associate
Commissioner of the BID ruled that, indeed, jimmy is a Filipino
citizen. However, the Board of Commissioners (BOC) reversed the
ruling of the Associate Commissioner.

Subsequently, the BOC decided to deport Jimmy to china. Jimmy and

his father, Carlos, thus filed a petition for injunction with the
Regional Trial Court, seeking to stop the BOC from proceeding with
the deportation case against him. The RTC granted their petition for
injunction but later lifted the ruling that Jimmy was not a Filipino
citizen. The Court of Appeals upheld the findings of the lower court.
Following this development, the Bureau of Immigration ordered the
deportation of Jimmy to china. He filed a petition for habeas corpus
maintaining that the petition for habeas corpus is proper since its
object is to inquire into the legality of one’s detention, and if found
illegal, to order the release of the detainee. The petition was
dismissed since a deportation order had already been issued.

ISSUES; 1) Whether or not the petition for habeas corpus becomes

moot and academic once a deportation order has already been by
the bureau of Immigration.
2) What is the meaning of the term “court”
SUPREME COURT’S RULING; Once a person is duly charged in
court, he may no longer question his detention through a
petition for issuance of writ of habeas corpus. The writ of
habeas corpus should not be allowed after the party sought to
be released had been charged before any court.
The term “court” in this context includes quasi-judicial bodies
of governmental agencies to order the person’s confinement,
like the Deportation Board of the Bureau of Immigration.
Likewise, the cancellation of his bail cannot be assailed via a
petition for habeas corpus. When an alien is detained by the
Bureau of Immigration for deportation pursuant to an order of
deportation by the Deportation Board, the Regional Trial Courts
have no power to release such alien on bail even habeas corpus
proceedings because there is no law authorizing it.

Given that Jimmy has been duly charged before the Board and
in fact ordered arrested pending his deportation, coupled by
this Court’s pronouncement that the Board was not ousted of
its jurisdiction to continue with the deportation proceedings,
the petition for habeas corpus is rendered moot and academic.

8.06 WHEN MAY A PRISONER BE ALLOWED TO POST BAIL?

If it appears that the prisoner was lawfully committed, and is

plainly and specifically charged in the warrant of commitment
charged in the warrant of commitment with an offense
punishable by death, he shall not be released, discharged, or
bailed.
If he be admitted to bail, he shall forthwith file a bond in such
sum as the court or judge deems reasonable, considering the
circumstance of the prisoner and the nature of the offense
charged, conditioned for his appearance before the court
where the offense is properly cognizable to abide its order or
judgment; and the court or judge shall certify the proceedings,
together with the bond, forthwith to the proper court. If such
bond is not so filed, the prisoner shall be recommitted to
confinement. (SEC.14)

8.07 CAN A DETENTION PRISONER AVAIL OF THE WRIT TO

POST BAIL?

Detention prisoner can avail of the habeas corpus proceeding

to post bail to ensure his appearance before the court if the
offense charged is bailable and if he has been detained and
held without bail. However, if the offense is non-bailable, he
cannot obtain his provisional liberty on bail by habeas corpus
proceeding.

8.08 BAR Q. [2008]

After Alma had started serving her sentence for violation of
Batas Pambansa Blg .22 (BP 22), she filed a petition for writ od
habeas corpus, citing Vaca v. CA where the sentence of
imprisonment of a party found guilty of violation of Batas
Pambansa Blg. 22 (BP 22) was reduced to a fine equal to
double the amount of the check involved. She prayed that her
sentence be similarly modified and that she be immediately
released from detention. In the alternative, she prayed that
pending determination on whether the Vaca ruling applies to
her, she be allowed to post bail pursuant to Sec, 14 of Rule
102 which provides that if a person is lawfully imprisoned or
restrained on a charge of having committed an offense not
punishable court. Accordingly, the trial court allowed Alma to
post bail and then ordered her release. In your opinion, is the
order of the trial court correct?

SUGGESTED ANSWER;
The order of the trial court is not correct. Alma is not entitled to
bail as she is not a detention prisoner but already a convicted
felon. Section 2 of Rule 102which allows the remedy of habeas
corpus to post bail is applicable only when the prisoner is a
detention prisoner and the offense is bailable under the law.

8.09 WHAT IS THE PERIOD TO APPEAL IN HABEAS CORPUS?

The period to appeal in habeas corpus case shall be 48 hours
from notice of the judgment appealed from.
8.10 DISCUSS THE CONCEPT OF DISCHARGE OR RELEASE.
A release that renders a petition for a writ of habeas corpus
moot and academic must be one which is free from involuntary
restraints. When the person so released continues to be denied
one or more of his constitutional freedoms, where there is a
present denial of due process, or where the restraints are not
merely involuntary but appear to be unnecessary, the person
concerned or those acting in his behalf may still avail
themselves again of the privilege of the writ.(Moncupa v. et al.,
G.R No. 63345, January 30, 1986)

PART II
THE RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS
CORPUS IN RELATION TO CUSTODY OF MINORS
(A.M. No. 03-04-04-SC)

The requisites for the valid grant of the writ where rightful
custody over a minors is withheld from a person lawfully
entitled therein are as follows:

1. The petitioner has the right of custody over the minor child;
2. The rightful custody over the minor is being withheld by the
respondent;
3. That it serves the best interest of the minor child to be in the
custody of the petitioner rather than with the respondent.

1.02 WHO MAY FILE THE PETITION FOR THE RIGHTFUL

CUSTODY OF A verified petition for the rightful custody of a
minor may be filed by any person claiming such right. The party
against whom it may be filed shall be designated as the
respondent. (Sec. 2)
1.03 GIVE THE JURISDICTION AND VENUE OF THE PETITION.
The petition for custody of minor shall be filed with the Family
Court of the province or city where the petitioner resides or
where the minor may be found. (Sec.3)

1.04 WHAT ARE THE CONTENTS OF THE PETITION?

The verified petition shall allege the following:

a) The personal circumstances of the petitioner and the

respondent
b) The name, age, and present whereabouts of the minor and
his or her relationship to the petitioner and the respondent;
c) The material operative facts constituting depravation of
custody; and
d) Such other matters which are relevant to the custody of the
minor.

The verified petition shall be accompanied by a certificate

against forum shopping, which the petitioner must sign
personally. (Sec. 4) 1.05 IS THE FILING OF A MOTION TO
DISMISS ALLOWED?
A motion to dismiss the petition is not allowed except on the
ground of lack of jurisdiction over the subject matter or over
the parties. Any other ground that might warrant the dismissal
of the petition may be raised as an affirmative defense in the
answer. (Sec.6)

1.06 WHAT IS THE PERIOD TO FILE AN ANSWER TO THE

PETITION?

The respondent shall file an answer to the petition, personally

verified by him, within five days after service of summons and a
copy of the petition. (Sec. 7)

1.07 IS PRE-TRIAL MANDATORY?

Yes Within 15 days after the filing of the answer or the
expiration of the period to file answer, the court shall issue an
order:

(1) Fixing a date for the pre-trial conference;

(2) Directing the parties to file and serve their respective pre-
trial briefs in such manner as shall ensure receipt thereof by the
adverse party at least three days before the date of pre-trial;
and
(3) Requiring the respondent to present the minor before the
court.

The notice of its order shall be served separately on both the

parties and their respective counsels. The pre-trial is
mandatory;(Sec.9)
1.08 WHAT ARE THE EFFECTS OF FAILURE TO APPEAR AT THE
PRE-TRIAL?

The following are the effects of failure to appear at the pre-

trial;
(a) if the petitioner fails to appear personally at the pre-trial,
the case shall be dismissed, unless his counsel or a duly
authorized representative appears in court and proves a valid
excuse for the non-appearance of the petitioner.
(b) if the respondent has filed his answer but fails to appear at
the pre-trial, the petitioner shall be allowed to present his
evidence ex parte. The court shall then render judgment on the
basis of the pleadings and the evidence thus presented.(Sec.11)

1.09 WHAT MAY BE DONE AT THE PRE-TRIAL?

At the pre-trial, the parties may agree on the custody of the
minor. If the parties fail to agree, the court may refer the
matter to a mediator who shall have five days to effect an
agreement between the parties.

If the issue is not settled through mediation the court shall

proceed with the pre-trial conference, on which occasion it
shall consider such other matters as may aid in the prompt
disposition of the petition. (Sec.12)
2.01 MAY THE COURT ISSUE A PROVISIONAL ORDER
AWARDING CUSTODY?

Yes after an answer has been filed or after expiration of the

period to file it, the court may issue a provisional order
awarding custody of the minor. As far as practicable, the
following order of preference shall be observed in the award of
custody:
(a) Both parents jointly;
(b) Either parent, taking into account all relevant consider
actions, especially the choice of the minor over seven years of
age and of sufficient discernment, unless the parents chosen is
unfit;
(c) The grandparent, or if there are several grandparents, the
grandparent chosen by the minor over seven years of age and
of sufficient discernment, unless the grandparent chosen is
unfit or disqualified;
(d) The eldest brother or sister over 21 years age, unless he or
she is unfit or disqualified;
(e) The actual custodian of the minor over 21 years of age,
unless the former is unfit or disqualified; or
(f) Any other person or institution the court may deem suitable
to provided proper care and guidance for the minor.(Sec.13)
2.02 WHAT ARE THE FACTORS TO BE CONSIDERED IN
DETERMINING CUSTODY?

In awarding custody, the court shall consider the best interests

of the minor and shall give paramount consideration to his
material and moral welfare.

2.03 DEFINE “BEST INTERESTS OF THE MINOR.”

The “best interest of the minor” refers to the totality of the
circumstances and conditions as are most congenial to the
survival, protection, and feelings of security of the minor
encouraging to his physical, psychological, and emotional
development. It also means the least detrimental available
alternative for safeguarding the growth and development of
the minor.

2.04 WHAT OTHER FACTORS MUST THE COURT CONSIDER?

(a) Any extrajudicial agreement which the parties may have
bound themselves to comply with respecting the rights of the
minor to maintain direct contact with the non-custodial parent
on a regular basis, except when there is an existing threat or
danger of physical, mental, sexual or emotional violence which
endangers the safety and best interests of the minor;
(b) The desire and ability of one parent to faster an open and
loving relationship between the minor and the other parent;
(c) The health, safety, and welfare of the minor;
(d) Any history of child or spousal abuse by the person seeking
custody or who has had any filial relationship with the minor,
including anyone courting the parent;
(e) The nature and frequency of contact with both parents;
(f) Habitual use of alcohol dangerous drugs or regulated
substances;
(g) Martial misconduct;
(h) The most suitable physical, emotional, spiritual,
psychological and educational environment for the holistics
development and growth of the minor; and
(i) The preferences of the minor over seven years of age and of
sufficient discernment, unless the parent chosen is unfit. (Sec.
14)

2.05 MAY THE COURT GRANT TEMPORARY VISITATION

RIGHTS?
Yes, 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.

2.06 WHAT MUST THE CUSTODIAL DO IF THERE IS ANY PLAN

TO CHANGE THE MINOR’S RESIDENCE?
The temporary custodian shall give the court and non-custodial
parent or parents at least five days notice of any plan to change
the residence of the of the minor or take him out of his
residence for more than three days provided it does not
prejudice the visitation rights of the non-custodial parent or
parents.(Sec.15)

2.07 MAY THE COURT ISSUE A HOLD DEPARTURE ORDER IF A

MINOR CHILD SUBJECT OF THE PETITION SHALL BE BROUGHT
OUT OF THE COUNTRY?

Yes, the minor child subject of the petition shall not be brought
out of the country without prior order from the court while the
petition is pending.
The court. Motu proprio or upon application under oath, may
issue ex parte a hold departure order, addressed to the Bureau
of Immigration and Deportation, directing it not to allow the
departure of the minor from the Philippines without the
permission of the court.

2.08 MAY THE COURT ISSUE A PROTECTION ORDER?

Yes, the court may issue a Protection Order requiring any
person:
(a) To stay away from the home, school, business, or place of
employment of the minor, other parent or any other party, or
from any other specific place designation by the court;
(b) To cease and desist from harassing, intimidating, or
threatening such minor or the parent or any person to whom
custody of the minor is awarded;
(c) To refrain from acts of commission or mission that create an
unreasonable risk to the health, safety, or welfare of the minor;
(d) To permit a parent, or a party entitled to visitation by a
court order or a separation agreement, to visit the minor at
stated periods;
(e) To permit a designated party to enter the residence during a
specified period of time in order to take personal belongings
not contested in a proceeding pending with the Family Court;
and
(f) To comply with such other orders as are necessary for the
protection of the minor. (Sec.17)
3.01 WHO BE APPOINTED, IF BOTH PARTIES ARE UNFIT, TO
HAVE CARE AND CUSTODY OF THE MINOR?

If it appears that both parties are unfit to have the care and
custody of the minor, the court may designate either the
paternal or maternal grandparent of the minor, or his oldest
brother or sister, or any reputable person to take charge of
such minor, or commit him to any suitable home for children.
3.02 WHAT MAY A JUDGMENT UNDER THIS RULE CONTAIN?

In its judgment, the court may order either or both parents to

give an amount necessary for the support, maintenance, and
education of the minor, irrespective of who may be its
custodian.

3.03 WHAT IS THE BASIS IN DETERMINING THE AMOUNT OF

SUPPORT?

In determining the amount of support, the court may consider

the following factors:

(1) The financial resources of the custodial and non-custodial

parent and those of the minor;
(2) The physical and emotional health, special needs and
aptitude of the minor;
(3) The standard of living the minor has been accustomed to;
and
(4) The non- monetary contributions that the parents would
make toward the care and well-being of the minor.

The court may also issue any under that is just and reasonable
permitting the parent who is deprived of the care and custody
of the minor to visit or have temporary custody. (Sec.18)
3.04 IS AN APPEAL ALLOWED UNDER THE RULE?

Yes, but no appeal from the decision shall be allowed unless the
appellant has filed a motion for reconsideration or new trial
within 15 days from notice of judgment.

3.05 HOW IS AN APPEAL MADE?

An aggrieved party may appeal from the decision by filing a
Notice of Appeal within 15 days from notice of the denial of the
motion for reconsideration or new trial and serving a copy
thereof on the adverse parties. (Sec. 19)

3.06 UNDER THE RULE, WHERE IS THE FILING OF THE PETITION

FOR WRIT OF HABEAS CORPUS?

A verified petition for a writ of habeas corpus involving custody

of minors shall be filed with the Family Court. The writ shall be
enforceable within its judicial region to which the Family Court
belongs.

However, the petition may be filed with the regular court in the
absence of the presiding judge of the Family Court, provided,
how ever, that the regular court shall refer the case to the
Family Court as soon as its presiding judge returns to duty.
The petition may also be filed with the appropriate regular
courts in places where are no Family Courts.

The writ issued by the Family Court or the regular court shall be
enforceable in the judicial region where they belong.

The petition may likewise be filed with the Supreme Court,

Court of Appeals, or with any of its members and, if so granted,
the writ shall be enforceable anywhere in the Philippines. The
writ may be made returnable to a Family Court or to any
regular court within the region where the petitioner reside or
where the minor may be found for hearing and decision on the
merits.

Upon return of the writ, the court shall decide the issue on
custody of minors. The appellate court, or the member thereof,
issuing the writ shall be furnished a copy of the decision.
(Sec.20)