What is a writ of habeas corpus?
officer commanding him to the same effect
Habeas corpus is a Latin phrase which
literally means you have the body.
Basically, it is a writ directed to the person
detaining another, commanding him to
produce the body of the prisoner at a
designated time and place, with the day and
cause of his capture and detention, to do,
submit to, and receive whatsoever the court or
judge awarding the writ shall consider in that
behalf.
What is the scope of the writ of habeas
corpus? (Rule 102, Sec. 2)
The writ of habeas corpus generally extends to
all cases of illegal confinement or detention by
which a person is deprived of liberty, or the
rightful custody of a person is withheld from
the person entitled thereto.
Who may issue the writ of habeas corpus?
The writ may be issued by the Supreme Court
or by the Court of Appeals or any member
thereof, enforceable anywhere in the
Philippines.
It may also be issued by the Regional Trial
Cout (RTC) or any judge thereof, enforceable
only within the judicial district.
To whom is the writ directed? (Rule 102,
Sec. 6)
If the detention is by an officer, the writ shall
be directed to him, commanding him to bring
the body of the person restrained of liberty
before the court at the time and place
specified.
If the detention is by a person other than an
officer, then the writ shall be directed to an
and to summon the person restraining. The
respondent will be asked to explain the cause
of the detention.
When shall the subject person be released?
When the prisoner is unlawfully restrained,
the court or judge shall order his discharge
which shall not be effective until a copy of the
order is served on the officer or person
detaining the prisoner. If such officer or
person does not desire to appeal, the prisoner
shall be forthwith released.
Source and citations: Supreme Court; Rule
102 of the Rules of Court
Proclamation No. 1959 did not only place the
Province of Mindanao under martial law but
also it suspended the privilege of the writ of
habeas corpus in the said place. This article
aims to explain in the most common
understanding what the suspension of the
privilege of the writ of habeas corpus is all
about under the Philippine laws.
When a person was detained without legal
cause, one of the legal remedies that he can
resort to is to file a petition for writ of habeas
corpus in a court with competent jurisdiction.
Once approved, the court will issue an order
known as writ of habeas corpus or privilege of
the writ of habeas corpus. These two legal
terms differ in some ways.
The writ of habeas corpus is an order issued
by a competent court, directed to a person
detaining another, commanding him to
produce the body of the prisoner at a
designated time and place, to explain the time
and cause of the caption and detention, and to
follow what the court or judge awarding the
writ shall consider in behalf of the prisoner.
The purpose of the issuance of the writ is to
inquire on the legality of the restraint or
detention without necessarily ordering the
release of the prisoner.
The privilege of the writ of habeas corpus, on
the other hand, is an order coming from the
court to (immediately) release the prisoner if
the court finds that the detention is without
legal cause or authority.
A return is a written explanation of the cause
of the caption and detention of the prisoner.
The judge will have to study the return to
determine whether the detention is authorized.
If so, the prisoner will be sent back to jail. If
not, the prisoner will be freed by the judge.
The principal purpose of the writ, therefore, is
to restore the liberty of the person subjected to
physical restraint.
However, there is an instance when the
privilege of the writ may be suspended.
Section 15, Article III of the 1987 Philippine
Constitution states that the privilege of the
writ of habeas corpus shall not be suspended
except in cases of rebellion when the public
safety requires it.
What does the suspension of the privilege of
the writ habeas corpus means?
When the privilege of the writ of habeas
corpus is suspended, the courts are
momentarily prevented from determining the
legality of a detention. This is true most
especially in martial law proclaimed areas
like in Maguindanao. This means that people
who have committed the crime of rebellion (or
even suspected ones) may be arrested without
warrant of arrest and objects that were used
in ;;;;
Grounds for the suspension of the privilege
of the writ of habeas corpus
Section 15, Article III of the 1987 Philippine
Constitution states that the privilege of the
writ of habeas corpus shall not be suspended
except in cases of rebellion when the public
safety requires it.
Section 18, Article VII of the same
Constitution provides that the suspension of
the privilege of the writ is one of the military
powers of the President, meaning that just like
martial law, it is only the President of the
Philippines who could suspend the privilege of
the writ and it must be based on the following
conditions:
1) There must be invasion or rebellion;
AND
2) The public safety requires it
The other conditions for the suspension of the
privilege of the writ of habeas corpus are also
the same as that with the proclamation of
martial law (please refer to the related article
in this site: Martial Law in Maguindanao
[Philippines]: To Fear or Not to Fear).
However, it shall only apply to persons
judicially charged for rebellion or inherent in
or directly connected with invasion and not to
those who are only suspected of committing
rebellion or invasion.
A person arrested or detained must be released
if not judicially charged within three (3) days
(1987 Philippine Constitution, Section 18,
Article VII, last par)
The proclamation of martial law does not
automatically suspend the privilege of the
writ.
Is the suspension of the privilege of the writ
of habeas corpus under Proclamation No.
1959 constitutional?
My answer is NO.
Going back to the conditions before its
suspension which is similar to the
proclamation of martial law, no actual case of
rebellion or invasion exists in the Province of
Maguindanao, therefore, the suspension of the
privilege of the writ is unconstitutional (please
read related article in this site: Defining the
Crime of Rebellion in Relation to
Proclamation 1959).
Republic of the Philippines
SUPREME COURT
Manila
A.M. No. 03-04-04-SC April 22, 2003
RE: PROPOSED RULE ON CUSTODY
OF MINORS AND WRIT OF HABEAS
CORPUSIN RELATION TO CUSTODY
OF MINORS
RESOLUTION
Acting on the letter of the Chairman of the
Committee on Revision of the Rules of Court
submitting for this Courts consideration and
approval the Proposed Rule on custody of
Minors and Writ of Habeas Corpus in Relation
to Custody of Minors, the Court Resolved to
APPROVE the same.
The Rule shall take effect on May 15, 2003
following its publication in a newspaper of
general circulation not later than April 30,
2003.
April 22, 2003
Davide, Jr., C.J., Bellosillo, Puno, Vitug,
Panganiban, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., and Azcuna, JJ.,
concur.
Quisumbing, J., on official leave.
RULE ON CUSTODY OF MINORS AND
WRIT OF HABEAS CORPUS
IN RELATION TO CUSTODY OF
MINORS
SECTION 1. Applicability. - This rule shall
apply to petitions for custody of minors and
writs of habeas corpus in relation thereto.
The Rules of Court shall apply suppletorily.
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. The party
against whom it may be filed shall be
designated as the respondent.
Section 3. Where to file petition. - The
petition for custody of minors shall be filed
with the Family Court of the province or city
where the petitioner resides or where the
minor may be found.
Section 4. Contents of petition. - The verified
petition shall allege the following:
(a) The personal circumstances of the
petitioner and of 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
deprivation 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.
Section 5. Summons; personal service on
respondent. - If the court is satisfied that the
petition is sufficient in form and substance, it
shall direct the clerk of court to issue
summons, which shall be served together with
a copy of the petition personally on the
respondent.
Section 6. Motion to Dismiss. - 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.
Section 7. Verified Answer. - 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.
Section 8. Case study; duty of social worker.
- Upon the filing of the verified answer or the
expiration 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-trial.
Section 9. Notice of mandatory pre-trial. -
Within fifteen 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.
Section 10. Contents of pre-trial brief. - The
pre-trial brief shall contain the following:
(a) A statement of the willingness of the
parties to enter into agreements that may be
allowed by law, indicating its terms;
(b) A concise statement of their respective
claims together with the applicable laws and
authorities;
(c) Admitted facts and proposed stipulations of
facts;
(d) The disputed factual and legal issues;
(e) All the evidence to be presented, briefly
stating or describing its nature and purpose;
(f) The number and names of the witnesses
and their respective affidavits which shall
serve as the affiant's testimony on direct
examination; and
(g) Such other matters as the court may
require to be included in the pre-trial brief.
Failure to file the pre-trial brief or to comply
with its required contents shall have the same
effect as failure to appear at the pre-trial.
Section 11. Effect 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.
Section 12. What may be done at 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.
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 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 considerations, especially the choice
of the minor over seven years of age and of
sufficient discernment, unless the parent
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 twenty-
one years of age, unless he or she is unfit or
disqualified;
(e) The actual custodian of the minor over
twenty-one years of age, unless the former is
unfit or disqualified; or
(f) Any other person or institution the court
may deem suitable to provide proper care and
guidance for the minor.
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.
The court shall also consider the following:
(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
foster 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) Marital misconduct;
(h) The most suitable physical, emotional,
spiritual, psychological and educational
environment for the holistic development and
growth of the minor; and
(i) The preference of the minor over seven
years of age and of sufficient discernment,
unless the parent chosen is unfit.
Section 15. Temporary visitation rights. - The
court shall provide in its order awarding
provisional custody appropriate visitation
rights to the non-custodial parent or parents,
unless the court finds said parent or parents
unfit or disqualified.
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 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.
Section 16. Hold Departure Order. - The
minor child subject of the petition shall not be
brought out of the country without prior order
from the court while the petition is pending.
The court, motu proprio or upon application
under oath, may issue 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.
The Family Court issuing the hold departure
order shall furnish the Department of Foreign
Affairs and the Bureau of Immigration and
Deportation of the Department of Justice a
copy of the hold departure order within
twenty-four hours from its issuance and
through the fastest available means of
transmittal.
The hold departure order shall contain the
following information:
(a) The complete name (including the middle
name), the date and place of birth, the
nationality and the place of last residence of
the person against whom a hold departure
order has been issued or whose departure from
the country has been enjoined;
(b) The complete title and docket number of
the case in which the hold departure order was
issued;
(c) The specific nature of the case;
(d) The date of the hold departure order; and
(e) A recent photograph, if available, of the
party against whom a hold departure order has
been issued or whose departure from the
country has been enjoined.
The court may recall the hold departure order
motu proprio, or upon verified motion of any
of the parties after summary hearing, subject
to such terms and conditions as may be
necessary for the best interests of the minor.
Section 17. Protection Order. - 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 designated by the
court;
(b) To cease and desist from harassing,
intimidating, or threatening such minor or the
other parent or any person to whom custody of
the minor is awarded;
(c) To refrain from acts of commission or
omission 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.
Section 18. Judgment. - After trial, the court
shall render judgment awarding the custody of
the minor to the proper party considering the
best interests 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.
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. 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 order 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.
Section 19. Appeal. - No appeal from the
decision shall be allowed unless the appellant
has filed a motion for reconsideration or new
trial within fifteen days from notice of
judgment.
An aggrieved party may appeal from the
decision by filing a Notice of Appeal within
fifteen days from notice of the denial of the
motion for reconsideration or new trial and
serving a copy thereof on the adverse parties.
Section 20. 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, however,
that the regular court shall refer the case to the
Family Court as soon as its presiding judge
returns to duty.
The petition may also be filed with the
appropriate regular courts in places where
there 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 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.
Section 21. Confidentiality of proceedings. -
The hearings on custody of minors may, at the
discretion of the court, be closed to the public
and the records of the case shall not be
released to non-parties without its approval.
Section 22. Effectivity. - This Rule shall take
effect on May 15, 2003 following its
publication in a newspaper of general
circulation not later than April 30, 2003.
For Child Custody:
1. Hanna can file the petition in the Family
Court of the province or city where she resides
or where her love child may be found with
Boggie as the party respondent;
2. If the court is satisfied that the petition is
sufficient in form and substance, it shall direct
the clerk of court to issue summons, which
shall be served together with a copy of the
petition personally to Boggie, as the
respondent;
3. Then Boggie shall file an answer to the
petition, personally verified by him, within
five days after service of summons and a copy
of the petition;
4.Upon the filing of the verified answer or the
expiration 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-trial;
5.Within fifteen 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;
6.If Hanna 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. And if
Boggie has filed his answer but fails to appear
at the pre-trial, Hanna 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;
7.At the pre-trial, Hanna and Boggie may
agree on the custody of their love child. 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;
8. 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 considerations, especially the choice
of the minor over seven years of age and of
sufficient discernment, unless the parent
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 twenty-
one years of age, unless he or she is unfit or
disqualified;
(e) The actual custodian of the minor over
twenty-one years of age, unless the former is
unfit or disqualified; or
(f) Any other person or institution the court
may deem suitable to provide proper care and
guidance for the minor.
9. 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;
The court shall also consider the following:
(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
foster 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) Marital misconduct;
(h) The most suitable physical, emotional,
spiritual, psychological and educational
environment for the holistic development and
growth of the minor; and
(i) The preference of the minor over seven
years of age and of sufficient discernment,
unless the parent chosen is unfit.
10. In awarding provisional custody, the court
shall provide an appropriate visitation rights to
the non-custodial parent or parents, unless the
said parent or parents unfit or disqualified.
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 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;
11. 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. The Family Court issuing the hold
departure order shall furnish the Department
of Foreign Affairs and the Bureau of
Immigration and Deportation of the
Department of Justice a copy of the hold
departure order within twenty-four hours from
its issuance and through the fastest available
means of transmittal;
12. If warranted 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 designated by the
court;
(b) To cease and desist from harassing,
intimidating, or threatening such minor or the
other parent or any person to whom custody of
the minor is awarded;
(c) To refrain from acts of commission or
omission 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.
13. After trial, the court shall render judgment
awarding the custody of the minor to the
proper party considering the best interests 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.
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. 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 order 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;
For writ of habeas corpus
1. 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, however, that the
regular court shall refer the case to the Family
Court as soon as its presiding judge returns to
duty. The petition may also be filed with the
appropriate regular courts in places where
there 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 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;
2. The hearings on custody of minors may, at
the discretion of the court, be closed to the
public and the records of the case shall not be
released to non-parties without its approval;
However, Hanna has to attend the hearings in
order to prosecute the petition.
File petition for custody of minor and writ
of habeas corpus for access to child
Dear PAO,
I am a Canadian who visited Manila a few
months back. I met a young man who had a
child with a young woman. The woman is now
working abroad and her family has taken the
child and is in hiding. How can this man use
the courts to obtain access to his son?
Sincerely,
Joe
Dear Joe, father only has visitorial rights over his child.
If your Filipino friend is married to the young If he has grounds to insist that the mother is
woman, he can file a petition for custody of unfit to have custody over their child, he may
minor and writ of habeas corpus to seek access still file for a petition for custody. Otherwise,
to his son. Under the Family Code, both he can only seek visitorial rights. Again, he
parents of a legitimate child have parental can file his petition for custody in his place of
rights over their child. This includes custody residence or where his son resides.
of the child. A petition for custody may be If he did not acknowledge his child and he has
filed where the petitioner resides or where the no proof that the child is his, he must first
minor may be found. gather evidence proving that he is indeed the
father. Once he has established this, he may
Under Section 20 on the Rules on Custody of proceed to file the petitions mentioned in the
Children, he may also file a petition for writ of preceding paragraph.
habeas corpus to gain access to his son. A writ We hope that we were able to enlighten you on
of habeas corpus is a remedy available in our the matter. Please be reminded that this advice
Rules of Court to relieve a person from is based solely on the facts you have narrated
unlawful restraint. Essentially, it is a writ of and our appreciation of the same. Our opinion
inquiry to test the right under which a person may vary when other facts are changed or
is detained (39 Am Jur 2d, Habeas Corpus, S1, elaborated.
179 in Herrera, Remedial Law Vol. III-A, Editors note: Dear PAO is a daily column of
2005). In relation to custody battles for the Public Attorneys Office. Questions for
children, a writ of habeas corpus is sought by Chief Acosta may be sent to
parents whose custody to their children are dearpao@manilatimes.net
being deprived from them by another parent,
relative, or stranger having custody of their
child.
According to you, his son is being hidden
from him. Therefore, he can file a petition for
habeas corpus in relation to custody before the
Family Court having jurisdiction of the place
where he may be hidden. If he has no clue
where in the Philippines his child may be
found, he can file his petition in the Court of
Appeals.
If they are not and were never married, but he
acknowledged the child either by signing the
Affidavit of Acknowledgment found in the
Birth Certificate or he executed an Affidavit of
Acknowledgment, he can still file a petition
for habeas corpus. However, under Article 176
of the Family Code, illegitimate children are
under the parental authority of the mother. As
a general rule, if the child is illegitimate, the