Habeas Corpus

Section 1. To what habeas corpus extends. — Section 2. Who may grant the writ. — The writ
Except as otherwise expressly provided by law, the of habeas corpus may be granted by the Supreme
writ of habeas corpus shall extend to all cases of Court, or any member thereof in the instances
illegal confinement or detention by which any person authorized by law, and if so granted it shall be
is deprived of his liberty, or by which the rightful enforceable anywhere in the Philippines, and may be
custody of any person is withheld from the person made returnable before the court or any member
entitled thereto. thereof, or before a Court of First Instance, or any
judge thereof for the hearing and decision on the
Purpose: habeas corpus ad subjuciendum—to merits. It may also be granted by a Court of First
determine whether or not a person is legally held when Instance, or a judge thereof, on any day and at any
time, and returnable before himself, enforceable only
a person: within his judicial district.
a. Is deprived of liberty: involuntary and illegal
deprivation of freedom of action Court When Petition Enforceability
May be filed
b. Is in rightful custody of an person, withheld
Supreme Court On any day at Anywhere in
from the person entitled thereto: applies to
or any of the any time the Philippines
parents wishing to regain custody of their minor
Justices thereof
child from a third person, even as the latter’s Court of Instances
custody was under his own free will. Appeals or any authorized by
Effects of the writ: of the Justices law
thereof
a. To obtain immediate relief from illegal Regional Trial On any day at Only within the
confinement Court or any any time court’s judicial
b. Liberate those who have been imprisoned judge thereof district
without sufficient cause, and
c. Deliver them from unlawful custody
Section 3. Requisites of application therefor. —
Application for the writ shall be by petition signed and
verified either by the party for whose relief it is
It is not issued when the person is in custody because of intended, or by some person on his behalf, and shall
judicial process or valid judgement. set forth:

(a) That the person in whose behalf the

application is made is imprisoned or
Nature: restrained on his liberty;
a. Separate and distinct from the main case from
(b) The officer or name of the person by whom
which the proceeding springs
he is so imprisoned or restrained; or, if both
Caballes vs. CA are unknown or uncertain, such officer or
person may be described by an assumed
b. Summary proceeding in which the restrained appellation, and the person who is served with
the writ shall be deemed the person intended;
person is presented to court to examine the
cause of his detention
(c) The place where he is so imprisoned or
c. The writ acts upon…the person alleged to detain restrained, if known;
with unlawful authority
d. Palladium of liberty; its grant left to court (d) A copy of the commitment or cause of
discretion detention of such person, if it can be procured
e. A writ of right on proper formalities made by without impairing the efficiency of the remedy;
or, if the imprisonment or restraint is without
proof
any legal authority, such fact shall appear.
When available:

Even if a less effective remedy is available.

Even if a void judgement is final, provided:

1. Violation of the accused’s constitutional rights

2. The court trying the case has jurisdiction, and
3. The penalty imposed is excessive or beyond
what the court could legally impose

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Section 10. Contents of return. — When the person execution, or the processes upon which the
to be produced is imprisoned or restrained by an party is held
officer, the person who makes the return shall state
3. If the party, etc., and is not produced—nature
therein, and in other cases the person in whose
custody the prisoner is found shall state, in writing to and gravity of sickness or infirmity;
the court or judge before whom the writ is returnable, 4. If the party was in his custody, etc. and has
plainly and unequivocably: transferred such custody or restraint to
another—to whom and what time, ofr what
(a) Whether he has or has not the party in his cause and by what authority such transfer was
custody or power, or under restraint;
made
(b) If he has the party in his custody or power, When not applicable:
or under restraint, the authority and the true
and whole cause thereof, set forth at large, For asserting or vindicating the denial of right to bail.
with a copy of the writ, order execution, or
other process, if any, upon which the party is Cannot correct errors of judgement, since it is not a writ
held; of error.

(c) If the party is in his custody or power or is Coventure and living in the conjugal dwelling.
restrained by him, and is not produced,
particularly the nature and gravity of the Section 4. When writ not allowed or discharge
sickness or infirmity of such party by reason of authorized. — If it appears that the person alleged to
which he cannot, without danger, be bought be restrained of his liberty is in the custody of an
before the court or judge; officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and
(d) If he has had the party in his custody or that the court or judge had jurisdiction to issue the
power, or under restraint, and has transferred process, render the judgment, or make the order, the
such custody or restraint to another, writ shall not be allowed; or if the jurisdiction appears
particularly to whom, at what time, for what after the writ is allowed, the person shall not be
cause, and by what authority such transfer discharged by reason of any informality or defect in
was made. the process, judgment, or order. Not shall anything in
this rule be held to authorize the discharge of a
Contents of the petition: person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment
1. The petition must be signed and verified; under lawful judgment.
2. The petition must contain:
a. That the person in whose behalf the A. When a person is in custody of an officer:
application is made is imprisoned or 1. Under process issued by the court or judge, or
restrained of his liberty 2. By virtue of a judgement or order of a court of
b. The officer or name of the person by record, and
whom he is so imprisoned or restrained 3. The court or judge had jurisdiction to issue the
c. The officer or name of the person by process, render judgement or make the order
whom he is so imprisoned or restrained
d. The place where his so imprisoned or B. Upon showing a person is:
restrained, if known, and 1. Charged with
e. Copy of the commitment or cause of 2. Convicted with an offense, or
detention of such person. If it can be 3. Suffering imprisonment under lawful judgement
procured without any legal authority,
such fact shall appear
Restrictive custody is beyond the ambit of habeas
A judge cannot grant a writ of habeas corpus without corpus: Ampatuan vs. Macaraig
the pertinent copies of detention and judgement of
conviction. To do so would be contrary to Sec. 3(d) Facts: PO1 Basser B. Ampatuan was placed under
restrictive custody pending investigation for Grave
Misconduct, as the suspect for the murder of Atty.
Contents of the return: Dalaig, head of COMELEC legal department

1. Whether he or has not the party in his custody Held:

or power, or under restraint Restrictive custody…is a permissible precautionary
2. If the party is in his custody or power, or under measure (under RA 6975 as amended by RA 8551) to
restraint—the authority and the true and whole assure the PNP authorities that the police officers
cause thereof, with a copy of the writ, order, concerned are always accounted for.

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Barredo vs. Vinarao and immediately thereupon the clerk of the court shall
issue the writ under the seal of the court; or in case of
Facts: emergency, the judge may issue the writ under his
own hand, and may depute any officer or person to
Barredo was convicted for carnapping and illegal serve it.
possession of firearms. He filed the petition for habeas
corpus believing that he has served his sentence, In the Matter of the Petition for habeas Corpus of
considering his time served coupled with reductions for Eufemia E. Rodriguez:
good conduct.
Facts: Edgardo Veluz, Eufemia’s nephew seeks recovery
Held: of the latter back into his custody from Eufemia’s
adopted children, Luisa and Teresita
While the certification of the Bureau of Corrections
showed he has already served 18 years 4 months and 26 Held:
days (or beyond the minimum penalty on the
If the respondents are not detaining or restraining the
carnapping charge i.e., 17 years and 4 months), he still
applicant or the person in whose behalf the petition is
has to serve the minimum penalty for the illegal
filed, the petition should be dismissed. (i.e., restraint as
possession of firearms charge.
the first question, and the legality of that restraint as the
later question in habeas corpus cases)

Kiani vs. Bureau of Immigration and Deportation:

Section 6. To whom writ directed, and what to
Facts: A petition for writ of habeas corpus was filed on require. — In case of imprisonment or restraint by an
officer, the writ shall be directed to him, and shall
behalf of Javed Kiani, who is subject of a Deportation command him to have the body of the person
Order by the Bureau of Immigration and Deportation for restrained of his liberty before the court or judge
violation of the Philippine Immigration Act. designated in the writ at the time and place therein
specified. In case of imprisonment or restraint by a
Held: person not an officer, the writ shall be directed to an
officer, and shall command him to take and have the
1. The proper remedy was to file a motion to body of the person restrained of his liberty before the
dismiss of the Charge Sheet court or judge designated in the writ at the time and
[Commissioner Rodriguez vs. Judge Bonifacio] place therein specified, and to summon the person by
2. Filing of the charge sheet cures any infirmity of whom he is restrained then and there to appear
before said court or judge to show the cause of the
the arrest
imprisonment or restraint.
3. “court” under Rule 102 includes quasi-judicial
bodies • In case imprisonment or restraint is committed
In the Matter of the Petition for Habeas Corpus of by a person, not an officer, the writ shall
Kunting: nevertheless be directed to an officer. The
officer is commanded to take and have the body
Held: The petition for the writ of habeas corpus cannot of the person restrained before the court
be granted since designed in the writ at the time and place stated
1. There was a warrant of arrest therein.
2. He is charged with a criminal offense—4 counts Distinction with the writ of preliminary citation:
of kidnapping for ransom and serious illegal
detention Habeas corpus: orders the respondent to have the body
of the detained person before the court at a time and
Larrañaga vs. CA: the filing of charges and issuance of place specified therein
warrant of arrest cures the defect of invalid detention.
Moreover, the absence of preliminary investigation does Preliminary citation: requires the respondent to appear
not nullify the information and warrant of arrest. and show cause why the peremptory writ should not be
granted
Sec. 26 Rule 114 of the Revised Rules of Criminal
Procedure expressly provides that an application for bail Section 7. How prisoner designated and writ served.
is not a bar to objections on illegal arrest, lack or — The person to be produced should be designated
irregular preliminary investigation, provided the accused in the writ by his name, if known, but if his name is not
known he may be otherwise described or identified.
raises them before entering his plea
The writ may be served in any province by the sheriff
or other proper officer, or by a person deputed by the
Section 5. When the writ must be granted and issued. court or judge. Service of the writ shall be made by
— A court or judge authorized to grant the writ must, leaving the original with the person to whom it is
when a petition therefor is presented and it appears directed and preserving a copy on which to make
that the writ ought to issue, grant the same forthwith, return or service. If that person cannot be found, or

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has not the prisoner in his custody, then the service Section 13. When the return evidence, and when only
shall be made on any other person having or a plea. — If it appears that the prisoner is in custody
exercising such custody. under a warrant of commitment in pursuance of law,
the return shall be considered prima facie evidence of
Specifying the person subject of the writ: by his name or the cause of restraint, but if he is restrained of his
by his description or identification liberty by any alleged private authority, the return shall
be considered only as a plea of the facts therein set
Who serves the writ: forth, and the party claiming the custody must prove
such facts.
1. The sheriff
2. Other proper officer Section 14. When person lawfully imprisoned
3. Person deputed by the court or judge recommitted, and when let to bail. — If it appears that
the prisoner was lawfully committed, and is plainly
The return must be signed and sworn to by the person and specifically charged in the warrant of commitment
with an offense punishable by death, he shall not be
making it, because it serves as prima facie evidence of
released, discharged, or bailed. If he is lawfully
the cause of restraint provided therein imprisoned or restrained on a charge of having
committed an offense not so punishable, he may be
Section 8. How writ executed and returned. — The recommitted to imprisonment or admitted to bail in the
officer to whom the writ is directed shall convey the discretion of the court or judge. If he be admitted to
person so imprisoned or restrained, and named in the bail, he shall forthwith file a bond in such sum as the
writ, before the judge allowing the writ, or in case of court or judge deems reasonable, considering the
his absence or disability, before some other judge of circumstances of the prisoner and the nature of the
the same court, on the day specified in the writ, offense charged, conditioned for his appearance
unless, from sickness or infirmity of the person before the court where the offense is properly
directed to be produced, such person cannot, without cognizable to abide its order of judgment; and the
danger, be bought before the court or judge; and the court or judge shall certify the proceedings, together
officer shall make due return of the writ, together with with the bond, forthwith to the proper court. If such
the day and the cause of the caption and restraint of bond is not so filed, the prisoner shall be recommitted
such person according to the command thereof. to confinement.

Section 9. Defect of form. — No writ of habeas • Applies only to persons who files the petition
corpus can be disobeyed for defect of form, if it criminally charged
sufficiently appears therefrom in whose custody or
under whose restraint the party imprisoned or A person shall not be released, discharged, or bailed in
restrained is held and the court or judge before whom the following instances:
he is to be bought.
1. It appears that the person is lawfully committed,
Section 11. Return to be signed and sworn to. — The and
return or statement shall be signed by the person who
2. It appears that the prisoner is plainly and
makes it; and shall also be sworn by him if the
prisoner is not produced, and in all other cases unless specifically charged in the warrant of
the return is made and signed by a sworn public commitment with an offense punishable by
officer in his official capacity. death

Section 12. Hearing on return. Adjournments. —

When the writ is returned before one judge, at a time
when the court is in session, he may forthwith adjourn Section 15. When prisoner discharged if no appeal.
the case into the court, there to be heard and — When the court or judge has examined into the
determined. The court or judge before whom the writ cause of caption and restraint of the prisoner, and is
is returned or adjourned must immediately proceed to satisfied that he is unlawfully imprisoned or restrained,
hear and examine the return, and such other matters he shall forthwith order his discharge from
as are properly submitted for consideration, unless for confinement, but such discharge shall not be effective
good cause shown the hearing is adjourned, in which until a copy of the order has been served on the
event the court or judge shall make such order for the officer or person detaining the prisoner. If the officer
safekeeping of the person imprisoned or restrained as or person detaining the prisoner does not desire to
the nature of the case requires. If the person appeal, the prisoner shall be forthwith released.
imprisoned or restrained is not produced because of
his alleged sickness or infirmity, the court or judge The proper court may grant the writ and the prisoner
must be satisfied that it is so grave that such person
cannot be produced without danger, before
shall be forthwith released when it is satisfied that the
proceeding to hear and dispose of the matter. On the offier or person detaining the prisoner does not desire
hearing the court or judge shall disregard matters of to appeal. Under A.M. No. 01-01-03-S, appeals in cases
form and technicalities in respect to any warrant or of habeas corpus must be made within 48 hours from
order of commitment of a court or officer authorized to notice of judgement.
commit by law.

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Section 16. Penalty for refusing to issue writ, or for Section 18. When prisoner may be removed from one
disobeying the same. — A clerk of a court who custody to another. — A person committed to prison,
refuses to issue the writ after allowance thereof and or in custody of an officer, for any criminal matter,
demand therefor, or a person to whom a writ is shall not be removed therefrom into the custody of
directed, who neglects or refuses to obey or make another unless by legal process, or the prisoner be
return of the same according to the command thereof, delivered to an inferior officer to carry to jail, or, by
or makes false return thereof, or who, upon demand order of the proper court or judge, be removed from
made by or on behalf of the prisoner, refuses to one place to another within the Philippines for trial, or
deliver to the person demanding, within six (6) hours in case of fire epidemic, insurrection, or other
after the demand therefor, a true copy of the warrant necessity or public calamity; and a person who, after
or order of commitment, shall forfeit to the party such commitment, makes signs, or counter-signs any
aggrieved the sum of one thousand pesos, to be order for such removal contrary to this section, shall
recorded in a proper action, and may also be forfeit to the party aggrieved the sum of one thousand
punished by the court or judge as for contempt. pesos, to be recovered in a proper action.

The following acts may be penalized with forfeiture or Circumstances warranting removal or transfer of
contempt: custody:

1. Refusal of the clerk of court to issue the writ 1. By legal process

after the allowance thereof and demand 2. The prisoner is delivered to an inferior officer to
therefor carry to jail
2. Neglect or refusal to obey or make return of the 3. By order of the proper court or judge for the
same according to the command thereof transfer from one place to another within the
3. Making a false return, and Philippines for trial
4. Refusal of the person to whom the writ is 4. In case of fire, epidemic, insurrection, or other
directed, upon demand made by or on behalf of necessity or public calamity
the prisoner, to deliver to the person
demanding within 6 hours after the demand
therefor, a true copy of the warrant or order of
Section 19. Record of writ, fees and costs. — The
commitment proceedings upon a writ of habeas corpus shall be
recorded by the clerk of the court, and upon the final
disposition of such proceedings the court or judge
shall make such order as to costs as the case
Section 17. Person discharged not to be again requires. The fees of officers and witnesses shall be
imprisoned. — A person who is set at liberty upon a included in the costs taxed, but no officer or person
writ of habeas corpus shall not be again imprisoned shall have the right to demand payment in advance of
for the same offense unless by the lawful order or any fees to which he is entitled by virtue of the
process of a court having jurisdiction of the cause or proceedings. When a person confined under color of
offense; and a person who knowingly, contrary to the proceedings in a criminal case is discharged, the
provisions of this rule, recommits or imprisons, or costs shall be taxed against the Republic of the
causes to be committed or imprisoned, for the same Philippines, and paid out of its Treasury; when a
offense, or pretended offense, any person so set at person in custody by virtue or under color of
liberty, or knowingly aids or assists therein, shall proceedings in a civil case is discharged, the costs
forfeit to the party aggrieved the sum of one thousand shall be taxed against him, or against the person who
pesos, to be recovered in a proper action, signed the application for the writ, or both, as the
notwithstanding any colorable pretense or variation in court shall direct.
the warrant of commitment, and may also be
punished by the court or judge granting the writ as for As a post-conviction remedy:
contempt.
1. There has been a deprivation of constitutional
Following acts also punishable by contempt: right resulting in the restraint of a person
1. Knowing, contrary to the provisions of this rule, 2. The court has no jurisdiction to impose the
recommits or imprisons, or causes to be sentence; or,
committed or imprisoned, for the same offense, 3. The imposed penalty has been excessive, this
or pretended offense, and person so set at voiding the sentence as to such excess
liberty; or, Andal vs. People of the Philippines
2. Knowingly aids or assists therein
Facts: Petitioners are 3 convicts of rape with homicide.
In petitioning for the writ of habeas corpus, they cite
the separate opinion of Justice Teehankee in Olaguer vs.
military Commission No. 34, in which judgements under
with the qualifying circumstance of violation of

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constitutional rights resulting in unlawful detention are Section 2. Petition for custody of minors; who
deprived of their jurisdiction may file.- A verified petition for the rightful custody of
a minor may be filed by any person claiming such
Held: supra. right. The party against whom it may be filed shall be
designated as the respondent.
[However the Court held the petitioners not entitled to
the writ] Section 3. Where to file petition. - The petition for
custody of minors shall be filed with the Family Court
Evangelista vs. Sistoza of the province or city where the petitioner resides or
where the minor may be found.
Facts: Danilo Evangelista was convicted for the crimes of
robbery and illegal possession of firearms. He files the Section 4. Contents of petition. - The verified
petition for the writ of habeas corpus in light of the petition shall allege the following:
reduced sentence for the latter offense provided by
Republic Act 8291. (a) The personal circumstances of the
petitioner and of the respondent;
Held: In light of the pronouncement of People vs.
Walpan Ladjaalam, the retroactive application of the law (b) The name, age and present whereabouts
applies to the present case. of the minor and his or her relationship to the
petitioner and the respondent;

(c) The material operative facts constituting

Retroactive Application of a favorable law: deprivation of custody; and

People vs. Caco: Although the remedy filed is a motion (d) Such other matters which are relevant to
for modification of sentence, it may be treated as a the custody of the minor.
substantial compliance with the rules on Habeas Corpus
The verified petition shall be accompanied by a
certificate against forum shopping, which the
petitioner must sign personally.
Habeas Corpus and Certiorari:

The petition for the writ of habeas corpus does not lie Section 5. Summons; personal service on
respondent. - If the court is satisfied that the petition
where the remedies of appeal or certiorari are available,
is sufficient in form and substance, it shall direct the
lest it perform the functions of a writ of error or appeal. clerk of court to issue summons, which shall be
served together with a copy of the petition personally
on the respondent.
Habeas Corpus in Custody Cases: Salientes vs. Abanilla
and Hernandez vs. San Juan Santos Section 6. Motion to Dismiss. - A motion to dismiss
the petition is not allowed except on the ground of
Note: Habeas Corpus is also available in cases involving lack of jurisdiction over the subject matter or over the
parties. Any other ground that might warrant the
the rightful custody of a minor.
dismissal of the petition may be raised as an
The general rule is that parents should have custody affirmative defense in the answer.
over their minor children.
Section 7. Verified Answer. - The respondent shall
But the State has the right to intervene where the file an answer to the petition, personally verified by
him, within five days after service of summons and a
parents, rather than care for such children, treat them
copy of the petition.
cruelly and abusively, impairing their growth and well-
being and leaving them emotional scars that they carry Section 8. Case study; duty of social worker. -
throughout their lives unless they are liberated from Upon the filing of the verified answer or the expiration
such parents and properly counselled of the period to file it, the court may order a social
worker to make a case study of the minor and the
parties and to submit a report and recommendation to
the court at least three days before the scheduled pre-
RULE ON CUSTODY OF MINORS AND WRIT OF trial.
HABEAS CORPUS
IN RELATION TO CUSTODY OF MINORS Section 9. Notice of mandatory pre-trial. - Within
fifteen days after the filing of the answer or the
SECTION 1. Applicability. - This rule shall apply to expiration of the period to file answer, the court shall
petitions for custody of minors and writs of habeas issue an order: (1) fixing a date for the pre-trial
corpus in relation thereto. 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
The Rules of Court shall apply suppletorily.
three days before the date of pre-trial; and (3)

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requiring the respondent to present the minor before (a) Both parents jointly;
the court.
(b) Either parent, taking into account all
The notice of its order shall be served separately on relevant considerations, especially the choice
both the parties and their respective counsels. The of the minor over seven years of age and of
pre-trial is mandatory. sufficient discernment, unless the parent
chosen is unfit;
Section 10. Contents of pre-trial brief. - The pre-
trial brief shall contain the following: (c) The grandparent, or if there are several
grandparents, the grandparent chosen by the
(a) A statement of the willingness of the minor over seven years of age and of
parties to enter into agreements that may be sufficient discernment, unless the grandparent
allowed by law, indicating its terms; chosen is unfit or disqualified;

(b) A concise statement of their respective (d) The eldest brother or sister over twenty-
claims together with the applicable laws and one years of age, unless he or she is unfit or
authorities; disqualified;

(c) Admitted facts and proposed stipulations of (e) The actual custodian of the minor over
facts; twenty-one years of age, unless the former is
unfit or disqualified; or
(d) The disputed factual and legal issues;
(f) Any other person or institution the court
(e) All the evidence to be presented, briefly may deem suitable to provide proper care and
stating or describing its nature and purpose; guidance for the minor.

(f) The number and names of the witnesses Section 14. Factors to consider in determining
and their respective affidavits which shall custody. - In awarding custody, the court shall
serve as the affiant's testimony on direct consider the best interests of the minor and shall give
examination; and paramount consideration to his material and moral
welfare. The best interests of the minor refer to the
totality of the circumstances and conditions as are
(g) Such other matters as the court may
most congenial to the survival, protection, and
require to be included in the pre-trial brief.
feelings of security of the minor encouraging to his
physical, psychological and emotional development. It
Failure to file the pre-trial brief or to comply with its also means the least detrimental available alternative
required contents shall have the same effect as failure for safeguarding the growth and development of the
to appear at the pre-trial. minor.

Section 11. Effect of failure to appear at the pre- The court shall also consider the following:
trial.-(a) If the petitioner fails to appear personally at
the pre-trial, the case shall be dismissed, unless his
(a) Any extrajudicial agreement which the
counsel or a duly authorized representative appears
parties may have bound themselves to comply
in court and proves a valid excuse for the non-
with respecting the rights of the minor to
appearance of the petitioner.
maintain direct contact with the non custodial
parent on a regular basis, except when there
(b) If the respondent has filed his answer but fails to is an existing threat or danger of physical,
appear at the pre-trial, the petitioner shall be allowed mental, sexual or emotional violence which
to present his evidence ex parte. The court shall then endangers the safety and best interests of the
render judgment on the basis of the pleadings and the minor;
evidence thus presented.
(b) The desire and ability of one parent to
Section 12. What may be done at pre-trial. - At the foster an open and loving relationship
pre-trial, the parties may agree on the custody of the between the minor and the other parent;
minor. If the parties fail to agree, the court may refer
the matter to a mediator who shall have five days to
(c) The health, safety and welfare of the
effect an agreement between the parties. If the issue
minor;
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 (d) Any history of child or spousal abuse by
aid in the prompt disposition of the petition. the person seeking custody or who has had
any filial relationship with the minor, including
anyone courting the parent;
Section 13. Provisional order awarding custody. -
After an answer has been filed or after expiration of
the period to file it, the court may issue a provisional (e) The nature and frequency of contact with
order awarding custody of the minor. As far as both parents;
practicable, the following order of preference shall be
observed in the award of custody:
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 (f) Habitual use of alcohol, dangerous drugs or has been issued or whose departure from the
regulated substances; country has been enjoined.

(g) Marital misconduct; The court may recall the hold departure order motu
proprio, or upon verified motion of any of the parties
(h) The most suitable physical, emotional, after summary hearing, subject to such terms and
spiritual, psychological and educational conditions as may be necessary for the best interests
environment for the holistic development and of the minor.
growth of the minor; and
Section 17. Protection Order. - The court may issue
(i) The preference of the minor over seven a Protection Order requiring any person:
years of age and of sufficient discernment,
unless the parent chosen is unfit. (a) To stay away from the home, school,
business, or place of employment of the
Section 15. Temporary visitation rights. - The court minor, other parent or any other party, or from
shall provide in its order awarding provisional custody any other specific place designated by the
appropriate visitation rights to the non-custodial court;
parent or parents, unless the court finds said parent or
parents unfit or disqualified. (b) To cease and desist from harassing,
intimidating, or threatening such minor or the
The temporary custodian shall give the court and non other parent or any person to whom custody
custodial parent or parents at least five days' notice of of the minor is awarded;
any plan to change the residence of the minor or take
him out of his residence for more than three days (c) To refrain from acts of commission or
provided it does not prejudice the visitation rights of omission that create an unreasonable risk to
the non-custodial parent or parents. the health, safety, or welfare of the minor;

Section 16. Hold Departure Order. - The minor child (d) To permit a parent, or a party entitled to
subject of the petition shall not be brought out of the visitation by a court order or a separation
country without prior order from the court while the agreement, to visit the minor at stated periods;
petition is pending.
(e) To permit a designated party to enter the
The court, motu proprio or upon application under residence during a specified period of time in
oath, may issue ex parte a hold departure order, order to take personal belongings not
addressed to the Bureau of Immigration and contested in a proceeding pending with the
Deportation, directing it not to allow the departure of Family Court; and
the minor from the Philippines without the permission
of the court. (f) To comply with such other orders as are
necessary for the protection of the minor.
The Family Court issuing the hold departure order
shall furnish the Department of Foreign Affairs and the Section 18. Judgment. - After trial, the court shall
Bureau of Immigration and Deportation of the render judgment awarding the custody of the minor to
Department of Justice a copy of the hold departure the proper party considering the best interests of the
order within twenty-four hours from its issuance and minor.
through the fastest available means of transmittal.
If it appears that both parties are unfit to have the care
The hold departure order shall contain the following and custody of the minor, the court may designate
information: either the paternal or maternal grandparent of the
minor, or his oldest brother or sister, or any reputable
(a) The complete name (including the middle person to take charge of such minor, or commit him to
name), the date and place of birth, the any suitable home for children.
nationality and the place of last residence of
the person against whom a hold departure In its judgment, the court may order either or both
order has been issued or whose departure parents to give an amount necessary for the support,
from the country has been enjoined; maintenance and education of the minor, irrespective
of who may be its custodian. In determining the
(b) The complete title and docket number of amount of support, the court may consider the
the case in which the hold departure order following factors: (1) the financial resources of the
was issued; custodial and non-custodial parent and those of the
minor; (2) the physical and emotional health, special
(c) The specific nature of the case; needs, and aptitude of the minor; (3) the standard of
living the minor has been accustomed to; and (4) the
(d) The date of the hold departure order; and non-monetary contributions that the parents would
make toward the care and well-being of the minor.
(e) A recent photograph, if available, of the
party against whom a hold departure order The court may also issue any order that is just and
reasonable permitting the parent who is deprived of
8
the care and custody of the minor to visit or have of imprisonment and the (relative) divorce decree will
temporary custody. ordinarily be sufficient punishment for her. Moreover,
her moral dereliction will not have any effect upon the
Section 19. Appeal. - No appeal from the decision
baby who is as yet unable to understand the situation.
shall be allowed unless the appellant has filed a
motion for reconsideration or new trial within fifteen 3. Civil Code Commission holds that Art. 363 of the
days from notice of judgment.
Code has mandatory character: Lacson vs. San
An aggrieved party may appeal from the decision by Jose-Lacson
filing a Notice of Appeal within fifteen days from notice 4. Best Interest of a Child as Primary Consideration
of the denial of the motion for reconsideration or new 5. Tender-age presumption may be overcome by
trial and serving a copy thereof on the adverse compelling evidence of the mother’s unfitness
parties.

Section 20. Petition for writ of habeas corpus. - A

verified petition for a writ of habeas corpus involving Acquiring jurisdiction in habeas corpus cases: Saulo vs.
custody of minors shall be filed with the Family Court. Criz
The writ shall be enforceable within its judicial region
to which the Family Court belongs. A writ of habeas corpus plays a role somewhat
comparable to a summons, in ordinary civil actions, in
However, the petition may be filed with the regular that, by the service pf said writ, the court acquire
court in the absence of the presiding judge of the jurisdiction over the person of the respondent
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.
Rule 102 and the Family Courts Act of 1997: Thorton vs.
The petition may also be filed with the appropriate Thorton and Mandriñan vs. Mandriñan
regular courts in places where there are no Family
Courts. The latter did not deprive the Supreme Court and the
Court of Appeals jurisdiction in the custody of children
The writ issued by the Family Court or the regular and to issue writ of habeas corpus.
court shall be enforceable in the judicial region where
they belong. The Rule allows the writ to be returnable to Family
courts for hearing and decision on the merits (deciding
The petition may likewise be filed with the Supreme the issue of custody)
Court, Court of Appeals, or with any of its members
and, if so granted, the writ shall be enforceable
anywhere in the Philippines. The writ may be made
returnable to a Family Court or to any regular court
within the region where the petitioner resides or where
the minor may be found for hearing and decision on
the merits.

Upon return of the writ, the court shall decide the

issue on custody of minors. The appellate court, or
the member thereof, issuing the writ shall be furnished
a copy of the decision.

Mother given custody over child below seven years old:

Pablo-Gualberto vs. Gualberto (also known as the
Tender-age presumption)

1. Citing Art. 213 of the Family Code and Art. 363

of the Civil Code (7 years), and Art. 17 of the
Child and Youth Welfare Code (5 years
2. Civil Code Commission:

The general rule is recommended in order to avoid a

tragedy where a mother has seen her baby torn away
from her. No man can sound the deep sorrows of a
mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for ‘compelling
reasons’ for the good of the child: those cases must
indeed be rare, if the mother’s heart is not to be unduly
hurt. If she has erred, as in cases of adultery, the penalty