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Tijing vs. Court of Appeals 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.
It must be stressed too that in habeas corpus proceedings,
the question of identity is relevant and material, subject
to the usual presumptions including those as to identity of
the person.
In this case, the minor’s
identity is crucial in determining the propriety of the writ
sought. Thus, it must be resolved first whether the Edgardo Tijing, Jr., claimed by
Bienvenida to be her son, is the same minor named John Thomas
Lopez, whom Angelita insists to
be her offspring. We must first determine who between Bienvenida
and Angelita is
the minor’s biological mother. Evidence must necessarily
be adduced to prove that two persons, initially thought of
to be distinct and separate from each other, are indeed one
and the same. Petitioners must convincingly establish that
the minor in whose behalf the application for the writ is
made is the person upon whom they have rightful custody. If
there is doubt on the identity of the minor in whose behalf
the application for the writ is made, petitioners cannot invoke
with certainty their right of custody over the said minor.
True, it is not the function
of this Court to examine and evaluate the probative value
of all evidence presented to the concerned tribunal which
formed the basis of its impugned decision, resolution or order.
But since the conclusions of the Court of Appeals contradict
those of the trial court, this Court may scrutinize the evidence
on the record to determine which findings should be preferred
as more conformable to the evidentiary facts.
A close scrutiny of the records
of this case reveals that the evidence presented by Bienvenida
is sufficient to establish that John Thomas Lopez is actually
her missing son, Edgardo Tijing, Jr.
First, there is evidence
that Angelita could no longer bear
children. From her very lips, she admitted that after the
birth of her second child, she underwent ligation
at the Martinez Hospital in 1970, before she lived with Tomas Lopez without the benefit of marriage
in 1974. Assuming she had that ligation removed in 1978, as she claimed, she offered no evidence
she gave birth to a child between 1978 to
1988 or for a period of ten years. The midwife who
allegedly delivered the child was not presented in court.
No clinical records, log book or discharge order from the
clinic were ever submitted.
Second, there is strong evidence
which directly proves that Tomas Lopez is no longer capable
of siring a son. Benjamin Lopez declared in court that his
brother, Tomas, was sterile because of the accident and that
Tomas admitted to him that John Thomas Lopez was only an adopted
son. Moreover, Tomas Lopez and his legal wife, Maria Rapatan
Lopez, had no children after almost fifteen years together.
Though Tomas Lopez had lived with private respondent for fourteen
years, they also bore no offspring.
Third, we find unusual the
fact that the birth certificate of John Thomas Lopez was filed
by Tomas Lopez instead of the midwife and on August 4, 1989, four months after the alleged birth of the child.
Under the law, the attending physician or midwife in attendance
at birth should cause the registration of such birth. Only
in default of the physician or midwife, can the parent register
the birth of his child. The certificate must be filed with
the local civil registrar within thirty days after the birth.
Significantly, the birth certificate of the child stated Tomas
Lopez and private respondent were legally married on October 31, 1974, in Hagonoy, Bulacan, which is false because even private respondent had
admitted she is a “common-law wife.’ This false entry puts
to doubt the other data in said birth certificate.
Fourth, the trial court observed
several times that when the child and Bienvenida
were both in court, the two had strong similarities in their
faces, eyes, eyebrows and head shapes. Resemblance between
a minor and his alleged parent is competent and material evidence
to establish parentage. Needless to stress, the trial court’s
conclusion should be given high respect, it having had the
opportunity to observe the physical appearances of the minor
and petitioner concerned.
Fifth, Lourdes Vasquez testified
that she assisted in Bienvenida’s
giving birth to Edgardo Tijing,
Jr., at her clinic. Unlike private respondent, she presented
clinical records consisting of a log book, discharge order
and the signatures of petitioners.
All these considered, we are constrained to rule that subject minor is indeed the
son of petitioners. The writ of habeas corpus is proper
to regain custody of said child.
A final
note.Parentage
will still be resolved using conventional methods unless we
adopt the modern and scientific ways available. Fortunately,
we have now the facility and expertise in using DNA test for
identification and parentage testing. The University of the
Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis. The analysis
is based on the fact that the DNA of a child/person has two
(2) copies, one copy from the mother and the other from the
father. The DNA from the mother, the alleged father and child
are analyzed to establish parentage. Of course, being a novel
scientific technique, the use of DNA test as evidence is still
open to challenge. Eventually, as the appropriate case comes,
courts should not hesitate to rule on the admissibility of
DNA evidence. For it was said, that courts should apply the
results of science when competently obtained in aid of situations
presented, since to reject said result is to deny progress.
Though it is not necessary in this case to resort to DNA testing,
in future it would be useful to all concerned in the prompt
resolution of parentage and identity issues.
Tonog vs. CA G.R.
No. 122906, February 7, 2002
In
custody disputes, it is axiomatic that the paramount criterion
is the welfare and well-being of the child. In arriving at
its decision as to whom custody of the minor should be given,
the court must take into account the respective resources
and social and moral situations of the contending parents.
The general rule is
recommended in order to avoid many 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 of imprisonment
and the divorce decree (relative divorce) will ordinarily
be sufficient punishment for her. Moreover, moral dereliction
will not have any effect upon the baby who is as yet unable
to understand her situation.
This is not intended,
however, to denigrate the important role fathers play in the
upbringing of their children. Indeed, we have recognized that
both parents complement each other in giving nurture and providing
that holistic care which takes into account the physical,
emotional, psychological, mental, social and spiritual needs
of the child. Neither does the law nor jurisprudence intend
to downplay a father’s sense of loss when he is separated
from his child:
While the bonds between
a mother and her small child are special in nature, either
parent, whether father or mother, is bound to suffer agony
and pain if deprived of custody. One cannot say that his or
her suffering is greater than that of the other parent. It
is not so much the suffering, pride, and other feelings of
either parent but the welfare of the child which is the paramount
consideration.
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A.M. No.
03-04-04-SC
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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
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