RE: PROPOSED RULE ON CUSTODY OF MINORS
AND WRIT OF HABEAS CORPUS in the absence of the presiding judge of the Family
IN RELATION TO CUSTODY OF MINORS
A.M. No. 03-04-04-SC
April 22, 2003
RULE 102 of Rules of Court
Section 1. To what habeas corpus extends. —
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, or by which the rightful custody of any
person is withheld from the person entitled thereto.
TIJING VS. CA
G.R. No. 125901; March 8, 2001
The writ of 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 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.
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 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
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 3 Section 20
Petition for custody of Petition for Writ of
minors Habeas Corpus
Filed with the Family Filed with the Family
Court Court;
-where the petitioner -but may also be filed with
resides the regular court;
-or where the minor may -CA, or SC, or with any of
be found its members.
TUJANMILITANTE VS. DEAPERA
G.R. No. 210636; JULY 28, 2014
Facts: Deapera filed a petition for issuance of Writ of
Habeas Corpus in the RTC of Caloocan requiring
Tujanmilitante to produce her daughter in court.
Tujanmilitante’s Addresses: Novaliches, Caloocan City;
Kamias, Quezon City; Batasan Road, Quezon City;
Tujannmilitante was served a copy of the petition in
Quezon City. She then moved for the quashal of the writ
claiming that the Writ cannot be enforced in Quezon City.
She stated further that Section 3 of A.M. No. 03-04-04-SC
should be applied.
Deapera asserted that Section 20 of the said law shall
apply.
Issues:
1. Whether or not Section 3 should apply.
 2. Whether or not the RTC Caloocan has jurisdiction
over the habeas corpus petition filed.
Ruling:
1. Section 20 of A.M. No. 03-04-04-SC will apply
because what was filed by Deapera is a petition
for the issuance of a writ of habeas corpus.
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.
2. The RTC Caloocan correctly took cognizance of
the habeas corpus petition.
Batas Pambansa Blg. 129 (Judiciary
Reorganization Act of 1980)
Section 13. Creation of Regional Trial
Courts. – There are hereby created thirteen
Regional Trial Courts, one for each of the
following judicial regions:
xxxx
The National Capital Judicial
Region, consisting of the cities of Manila,
Quezon, Pasay, Caloocan and
Mandaluyong, and the municipalities of
Navotas, Malabon, San Juan, Makati,
Pasig, Pateros, Taguig, Marikina,
Parañaque, Las Piñas, Muntinlupa, and
Valenzuela.
In view of the afore-quoted provision, it is
indubitable that the filing of a petition for the issuance of
a writ of habeas corpus before a family court in any of the
cities enumerated is proper as long as the writ is sought
to be enforced within the National Capital Judicial Region,
as here.
In the case at bar, respondent filed the petition
before the family court of Caloocan City. Since Caloocan
City and Quezon City both belong to the same judicial
region, the writ issued by the RTC-Caloocan can still
be implemented in Quezon City. Whether petitioner
resides in the former or the latter is immaterial in view of
the above rule.
THORNTON VS. THORNTON
G.R. No. 154598; AUGUST 16, 2004
Facts: Richard Thornton, an American, and Adelfa
Thornton, a Filipino, were married and have a daughter.
Adelfa and the minor went in Basilan and never returned.
Richard filed a petition for writ of Habeas Corpus in Makati
City but was dismissed because the minor is in Basilan.
He then went to Basilan but failed to find Adelfa and their
daughter. So he filed the petition in the Court of Appeals.
However, the Court of Appeals denied the petition
because it does not have jurisdiction over the case.
Contention of CA:
R.A. 8369 (The Family Courts Act of 1997)
Sec. 5. Jurisdiction of Family Court.-The
Family Courts shall have exclusive original
jurisdiction to hear and decide the following
cases:
xxx xxx xxx
b. Petition for guardianship, custody of
children, habeas corpus in relation to the
latter.
Issue: Whether the Court of Appeals has jurisdiction to
issue writs of habeas corpus in cases involving custody of
minors in the light of the provision in RA 8369 giving family
court exclusive original jurisdiction over such petitions.
Ruling: Yes. The CA has jurisdiction to issue writs of
habeas corpus in cases involving custody of minors
because there is nothing in R.A. 8369 that revoked its
jurisdiction to issue writs of habeas corpus involving the
custody of minors.
SC disagree with CA’s reasoning (RA 8369).
Individuals who do not know the whereabouts of minors
they are looking for would be helpless since they cannot
seek redress from family courts whose writs are
enforceable only in their respective territorial jurisdictions.
If a minor is being transferred from one place to another,
the petitioner in habeas corpus case will be left without
legal remedy.
A literal interpretation of the word “exclusive” will
result in grave injustice and negate the policy “to protect
the rights and promote the welfare of children” under the
Constitution and the United Nations Convention on the
Rights of the Child. This mandate must prevail over legal
technicalities and serve as the guiding principle in
construing the provisions of RA 8369.
Besides A.M. No. 03-04-04-SC states that:
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.
xxx xxx xxx
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.
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.
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.

The verified petition shall be accompanied by a certificate

Failure to file the pre-trial brief or to comply with its
against forum shopping, which the petitioner must sign
required contents shall have the same effect as failure to
personally.
appear at the pre-trial.

Section 5. Summons; personal service on

Section 11. Effect of failure to appear at the pre-trial.-
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 (a) If the petitioner fails to appear personally at
with a copy of the petition personally on the respondent. 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
Section 6. Motion to Dismiss. – A motion to dismiss
of the petitioner.
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 (b) If the respondent has filed his answer but fails
petition may be raised as an affirmative defense in the to appear at the pre-trial, the petitioner shall be allowed to
answer. present his evidence ex parte. The court shall then render
judgment on the basis of the pleadings and the evidence
thus presented.
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 Section 12. What may be done at pre-trial. - At the
the petition. 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
Section 8. Case study; duty of social worker. - Upon
an agreement between the parties. If the issue is not
the filing of the verified answer or the expiration of the
settled through mediation, the court shall proceed with
period to file it, the court may order a social worker to
the pre-trial conference, on which occasion it shall
make a case study of the minor and the parties and to
consider such other matters as may aid in the prompt
submit a report and recommendation to the court at least
disposition of the petition.
three days before the scheduled pre-trial.
Section 13. Provisional order awarding custody. -
Section 9. Notice of mandatory pre-trial. – Within
After an answer has been filed or after expiration of the
fifteen days after the filing of the answer or the expiration
period to file it, the court may issue a provisional order
of the period to file answer, the court shall issue an
awarding custody of the minor. As far as practicable, the
order: (1) fixing a date for the pre-trial conference; (2)
following order of preference shall be observed in the
directing the parties to file and serve their respective pre-
award of custody:
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 (a) Both parents jointly;
the minor before the court. (b) Either parent, taking into account all relevant
considerations, especially the choice of the minor
The notice of its order shall be served separately on both over seven years of age and of sufficient
the parties and their respective counsels. The pre-trial is discernment, unless the parent chosen is unfit;
mandatory.
 (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.
(additional info galling kay sir: kaya hindi basta-basta
nakakalabas ang isang minor sa Pinas. Kailangan muna
nila ng permit na galing sa DSWD.)
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.
(additional info galling kay sir: if there is a violation to this
order, the court may use its contempt powers against the
violator.)
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.
Chua vs. Cabangbang, et al.
G.R. No. L-23253; March 28, 1969
(mother vs. stranger; custody was given to the stranger)
In proceedings involving a child whose parents
are separated – either legally or de facto – and where it
appears that both parents are improper persons to whom
entrust the care, custody and control of the child, “the
court may either designate the paternal or maternal
grandparent of the child, or his oldest brother or sister, or
some reputable and discreet person to take charge of
such child, or commit it to a suitable asylum, children’s
home, or benevolent society.
David vs. CA
G.R. No. 111180; November 16, 1995
(father – businessman vs. mother – seller sa palengke)
SC: Daisie (petitioner/mother) and her children
may not be enjoying a life of affluence that private
respondent (father) promises if the child lives with him. It
is enough, however, that petitioner (mother) is earning a
decent living and is able to support her children according
to her means.
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 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.
Sombong vs. CA
G.R. No. 111876; January 31, 1996
The grant of the writ of Habeas Corpus will
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;
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.