Republic of the Philippines

REGIONAL TRIAL COURT OF LANAO DEL NORTE

12TH Judicial Region
Branch 03, Iligan City

IN THE MATTER of PETITION

FOR HABEAS CORPUS

AMANDA SEGURO,
Petitioner, SPECIAL PROC. No. 5817

-versus- FOR: PETITION FOR HABEAS

CORPUS
AGAPITO APIT,
Respondent.
X---------------------------------------------/

ANSWER
Respondent, by counsel, unto the Honorable Court, respectfully
alleges:

ADMISSION and DENIALS

(1)Par. 1, 2, 3, 4 5 and 6 of the petition are ADMITTED.

(2)Subject to Special and Affirmative Defenses hereafter set forth in this

Answer, Par. 7 is specifically DENIED for want of knowledge
sufficient to form a belief as to the truth or falsity thereof.

(3)Par. 8, 9 and 10 are DENIED for want of knowledge sufficient to form

a belief as to the truth or falsity thereof.

(4)Subject to Special and Affirmative Defenses hereafter set forth in this

Answer, Par. 11, 12 and 13 of the petition are specifically DENIED for
want of knowledge sufficient to form a belief as to the truth or falsity
thereof;

(5)Par. 14 of the petition are ADMITTED;

(6)Subject to Special and Affirmative Defenses hereafter set forth in this

Answer, Par. 15 of the petition are specifically DENIED for want of
knowledge sufficient to form a belief as to the truth or falsity thereof;

(7)Par. 16 of the petition is ADMITTED.

 SPECIAL AND AFFIRMATIVE DEFENSES

Respondent re-plead all the foregoing allegations and further

allege that ----

(8)The petition is not proper. The case of Johanna Sombong vs.

Court of Appeals et. al., G.R. No. 111876. January 31, 1996, explains
the nature and application of the writ as follows:

In general, the purpose of the writ of habeas corpus is to

determine whether or not a particular person is legally held. A prime
specification of an application for a 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
exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of
personal freedom. A prime specification of an application for a 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. 1

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

habeas corpus, the restraint of liberty must be in the nature of an
illegal and involuntary deprivation of freedom of action. This is the
basic requisite under the first part of Section 1, Rule 102, of the
Revised Rules of Court, which provides that except as otherwise
expressly provided by law, the writ of habeas corpus shall extend to
all cases of illegal confinement or detention by which any person is
deprived of his liberty.

In the second part of the same provision, however, Habeas

Corpus may be resorted to in cases where the rightful custody of
any person is withheld from the person entitled thereto. Thus,
although the Writ of Habeas Corpus ought not to be issued if the
restraint is voluntary, we have held time and again that the said writ
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 her own free will.2

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, the writ of habeas corpus is prosecuted for the purpose
of determining the right of custody over a child. (Emphasis
supplied)

1 Villavicencio v. Lukban, 39 Phil. 778.

2 Salvana v. Gaela, 55 Phil. 680.

 The controversy does not involve the question of personal
freedom, because an infant is presumed to be in the custody of
someone until he attains majority age. In passing on the writ in a
child custody case, the court deals with a matter of an
equitable nature. Not bound by any mere legal right of parent
or guardian, the court gives his or her claim to the custody of
the child due weight as a claim founded on human nature and
considered generally equitable and just. Therefore, these
cases are decided, not on the legal right of the petitioner to be
relieved from unlawful imprisonment or detention, as in the
case of adults, but on the courts view of the best interests of
those whose welfare requires that they be in custody of one
person or another. Hence, the court is not bound to deliver a
child into the custody of any claimant or of any person, but
should, in the consideration of the facts, leave it in such
custody as its welfare at the time appears to require. In short,
the childs welfare is the supreme consideration. (Emphasis
supplied)

Considering that the childs welfare is an all-important factor

in custody cases, the Child and Youth Welfare Code 3, unequivocally
provides that in all questions regarding the care and custody,
among others, of the child, his welfare shall be the paramount
consideration.4 In the same vein, the Family Code authorizes the
courts to, if the welfare of the child so demands, deprive the
parents concerned of parental authority over the child or adopt
such measures as may be proper under the circumstances. 5

The foregoing principles considered, the grant of the writ in

the instant case will all depend on the concurrence of the following
requisites: (1) that the petitioner has the right of custody over the
minor; (2) that the rightful custody of the minor is being withheld
from the petitioner by the respondent; and (3) that it is to the best
interest of the minor concerned to be in the custody of
petitioner and not that of the respondent. (Emphasis Supplied)

(9)It is impliedly assumed that the Petitioner holds her right of custody
over the child, Christopher J. is based on the general rule that a child
under seven (7) years of age shall not be separated from his mother,
which is based on the basic need of a child for his mothers loving
care;

3 Presidential Decree No. 603, as amended.

4 Id., Article 8.

5 Family Code of the Philippines, Article 231.

(10) Indeed Article 213 of the Family Code provides that [n]o child
under seven years of age shall be separated from the mother, unless
the court finds compelling reasons to order otherwise. This is more
pronounced in case of illegitimate children, as the law expressly
provides that illegitimate children shall be under the parental authority
of their mother;

(11) This rule however is not absolute. Even a mother may be

deprived of the custody of her child who is below seven years of age
for compelling reasons;

(12) Section 14 of A.M. No. 03-04-04-SC otherwise known as the

Proposed Rule On Custody Of Minors And Writ Of Habeas Corpus in
Relation To Custody Of Minors provides that:

Section 14. Factors to consider 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. The best interests of the
minor refer 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. (Emphasis supplied)

The court shall also consider the following:

Xxx

(b) The desire and ability of one parent to foster an

open and loving relationship between the minor and the
other parent;

(c) The health, safety and welfare of the minor;

Xxx

(f) Habitual use of alcohol, dangerous drugs or

regulated substances;

Xxx

(h) The most suitable physical, emotional, spiritual,

psychological and educational environment for the
holistic development and growth of the minor; and
 Xxx

(Emphasis supplied)

(13) It is overwhelmingly alarming and worrying that the petitioner

never mentioned in her petition what truly led herein respondent to
abruptly take in to his own custody the minor Christopher J;

(14) The truth on the matter is that herein petitioner is NOT

financially, physically and spiritually in a better position to take care of
the child, Christopher J. and the other children Christine and Cathy
Mae;

(15) We agree that the determination of who is in the better position

to raise a child is best left with the discretion of the Honourable Court
with the guidance of the Rules prescribed by the law;

(16) However, respondent in his case immediately took custody of

the minor child when he found out that herein petitioner is
continuously unable to perform her responsibility as a mother to the
children because of her HABITUAL DRUNKENNESS;

(17) Respondent and petitioner never had a continuous

communication at the moment respondent found out about this
matter;

(18) In fact, it is even the Petitioner who withheld the children from
respondent and avoided the calls and persistent contacts from the
respondent;

(19) During the summer of 2016, it was not the petitioner who is
taking care of the children but it was her parents;

(20) As such, her parents and their neighbors are the one who
insisted that respondent should take custody of the minor. They
insisted that respondent took custody of the child while the two
remaining children be in their own custody;

(21) Respondent agreed and even insisted to take the two

daughters Christine and Cathy Mae but the parents of the petitioner
asserted that they be the one who should take care of the two
daughters and further maintained that respondent may freely contact
petitioners parents and may visit whenever he wanted;

(22) Petitioners claim that herein respondent maliciously took the

child for a vacation was a spiteful lie as respondent was never able to
 talk to the petitioner personally at that time since the arrangement
was between respondent and petitioners parents alone. She was not
present on the day that respondent took custody of the child;

(23) Respondent maintains that he is more capable to provide for

the children;

(24) As admitted by the respondent, since the minor child is already

seven (7) years old, the child is more than ready to go to school;

(25) Respondent on his part chose the best reputable school for the
child to be enrolled in;

(26) This is interestingly inconsistent to the claims of the petitioner

that herein respondent never gave support to the children;

(27) Since day one, even at the expense of the reputation of herein
respondent, and even how the situation may have affected the
personal relationship between the respondent and his legal family,
herein respondent never denied of his responsibility to the children;

(28) Respondent continued to fight for the children to be accepted

as his own;

(29) This necessarily carries with it the burden of performing the

responsibilities of a father, which respondent gladly took;

(30) Since the birth of the children, respondent had always tried and
desired to foster an open and loving relationship between them;

(31) Eventually, his wife have accepted the children due to

respondents insistence;

(32) It was even admitted by the petitioner that respondents wife

have met the children personally, and had celebrated several
occasions with them as evidenced by the pictures supplied in the
petition;

(33) Evidently, it is highly inconsistent of a claim that respondent

never supported the children when the truth of the fact - basing on
 the petitioners evidence and claims that she had supplied in her
petition- proves that respondent certainly continues to give the
children the necessary needs that they need, including education,
security, food and clothing;

(34) It is not true that respondent withheld from the petitioner the
custody of their child;

(35) Respondent took the minor child in to his custody to protect the
child from his mother who consistently fails to provide for their
childrens needs;

(36) Respondent intention was to relieve the petitioner from her

burden of asking financial support from her relatives;

(37) The respondent is willing to settle the case in court upon proper
determination which of the two parents is most suitable to have the
custody over the minor child Christopher J;

(38) The petition is not valid as to its form. We remind this

Honourable Court of Section 2 of A.M. No. 03-04-04-SC otherwise
known as the Proposed Rule On Custody Of Minors And Writ Of
Habeas Corpus in Relation To Custody Of Minors, which provides
that provides that:

Section 2. Petition for custody of minors; who may file.- A verified

petition for the rightful custody of a minor may be filed by any
person claiming such right.. (Emphasis supplied)

(39) We have consistently held that the certification against forum

shopping must be signed by the principal parties; 6

(40) While the Rules of Court may be relaxed for persuasive and
weighty reasons to relieve a litigant from an injustice commensurate
with his failure to comply with the prescribed procedures,
nevertheless they must be faithfully followed7;

6 Development Bank of the Philippines v. Court of Appeals, G.R. No. 147217, October 7,
2004, 440 SCRA 200, citing Mendigorin v. Cabantog, G.R. No. 136449, August 22,
2002, 387 SCRA 655.
(41) In the instant case, if petitioner fails to show any reason which
justifies relaxation of the Rules, petition shall warrant its dismissal;

(42) The courts have continuously held that procedural rules are not
to be belittled or dismissed simply because their non-observance
may have prejudiced a partys substantive rights. Like all rules, they
are required to be followed except for the most persuasive of reasons
when they may be relaxed. Not one of these persuasive reasons is
present here.8

RELIEF

WHEREFORE, premises seriously considered, it is prayed that the

instant petition be DISMISSED and custody of the child Christopher
J. be awarded to the respondent AGAPITO APIT.

Respondent likewise pray for such other equitable and just

relief under these premises.

Iligan City, 5th day of May 2017.

AHMAD U. ABDULJALIL
Counsel for the Respondent
Until December 2019
PTR No. 123456 / 01-15-19 / Iligan City
IBP No. 654321 / 01-13-19 / Iligan City
Attorneys Roll No. 789456 2006
MCLE Compliance No. IV-0020571 June 5, 2013

7 Navarro v. Metropolitan Bank and Trust Co., G.R. No. 138031, May 27, 2004, 429
SCRA 439.

8 Meatmasters International Corporation v. Lelis Integrated Development Corporation,

G.R. No. 163022, February 28, 2005, 452 SCRA 626, citing Lazaro v. Court of Appeals,
330 SCRA 208 (2000).
Copy furnish:

ATTY. MYRNA SILLERO MAHINAY

MAHINAY, MAHINAY, and MAHINAY LAW OFFICE

Suite # 100, 5th Flr,Elena Tower Bldg
Andres Bonifacio Avenue, Tibanga
Iligan City

Office of the Provincial Prosecutor

Hall of Justice, Iligan City

VERIFICATION AND CERTIFICATION

REPUBLIC OF THE PHILIPPINES)

Iligan City...................................... ) S.S.

I, AGAPITO APIT, of legal age, married and a resident of Iligan

City, Philippines, after being sworn in accordance with law, hereby
depose and say:
 1. That I am the Respondent in the above-entitled case;
2. That I have caused the preparation of the above Answer and
I have read the same and knows the contents thereof;
3. That the allegations contained therein are true and correct of
my own personal knowledge.
4. That I further certify that I have not theretofore commenced
any other action or proceeding or filed any claim involving
the same issues or matter in any court, tribunal, or quasi-
judicial agency and, to the best of my knowledge, no such
action or proceeding is pending therein;
5. If I should thereafter learn that the same or similar action or
proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals, or any other tribunal or quasi-
judicial agency, I undertake to report such fact within five (5)
days therefrom to the court or agency wherein the original
pleading and sworn certification contemplated herein have
been filed.

IN WITNESS WHEREOF, I have hereunto set my hand this 5th

day of May 2017 at Iligan City, Philippines.
.

AGAPITO APIT
Affiant

SUBSCRIBED AND SWORN to before me this 5 th day of May

2017 at Iligan City, Philippines.

ATTY. NOTARIO PUBLICO

Notary Public for Iligan
Unit 1, X Building, Tibanga, Iligan
Appointment No. 123, Until Dec. 31, 2016
IBP No. 123456; 01/10/10Iligan
PTR No. 1234567; 01/10/10Iligan
Roll No. 12345; 5/05/05
MCLE No. I - 001234; 9/09/15
MCLE No. II 005678; 9/09/15
Serial No. of Commission M-123
Doc. No. 1;
Page No. 1;
Book No. I;
Series of 2017