Court Procedures in Family Law Cases

1
INTRODUCTION
The Supreme Court promulgated the Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages not only to better preserve the sanctity of marriage but also to justifiably terminate those which are seriously infirm or invalid. Also, the new Rules on Legal Separation and Provisional Remedies contain new procedures that are designed to effectively serve those whose needs must be adequately answered and whose rights amply protected. Supreme Court Chief Justice Hilario G. Davide, Jr. commented that the Committee on Revision of the Rules of Court should be commended for another major opus that will truly effectuate the laws on nullity of void marriages, annulment of voidable marriages and legal separation.1 Supreme Court Associate Justice Reynato S. Puno, the chairman of the said Committee, characterizes the rules as making the Family Courts proactive in these cases.2 The reason for promulgating the rules is best expressed by the Committee3 constituted by the Supreme Court to draft the rules, thus:
The foundation of the family is marriage.4 The prevailing view is that the family provided the framework for all pre-state
1 Minutes of the Meeting of the Supreme Court En Banc, March 4, 2003, Page 3. 2 Minutes of the Meeting of the Supreme Court En Banc, February 1, 2003, Page 9. 3 The members of the Committee on the Revision of Rules particularly on the Annulment of Voidable Marriages and Declaration of Absolute Nullity, Legal Separation and Provisional Orders are the following: Associate Justice of the Supreme Court Reynato S. Puno as Chairman, Associate Justice of the Supreme Court Ma. Alicia Austria-Martinez, Retired Associate Justice of the Court of Appeals Leonor I. Luciano, Supreme Court Deputy Court Administrator Zenaida Elepao, Judge Rosalina L. Luna Pison, Atty. Myrna S. Feliciano (Supreme Court Director MCLE Committee), Atty. Ernesto L. Pineda (Law Center, PLM), Atty. Angelica Y. Santiago (Representative of the Integrated Bar of the Philippines) as members. The following are consultants: Retired Associate Justices of the Supreme Court, Justices Jose Y. Feria, Flerida Ruth P. Romero, Bernardo P. Pardo, and retired Associate Justice of the Court of Appeals, Oscar M. Herrera. 4 Maynard vs. Hill, 125 US 190, 8 S. Ct. 723, 31 L. ed. 654.
COURT PROCEDURES IN FAMILY LAW CASES
society and the fount of its creativeness.5 It has been adjudged the most significant invention of the human revolution together with language and tool use.6 Marital relation is the basis of society and its preservation is deemed vital to public welfare.7 Hence, marriage as an enduring societal value has been recognized by civilized countries. The Universal Declaration of Human Rights provides that men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. It declares that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.8 The International Covenant on Economic, Social and Cultural Rights9 as well as the International Covenant on Civil and Political Rights10 likewise safeguard the sanctity of marriage and the integrity of the family. The universal concern for marriage and the family is deeply etched in our 1987 Constitution and Family Code.11 Article II, Section 12 of the 1987 Constitution proclaims in no uncertain terms that the State recognizes the sanctity of family life and shall protect and strengthen the family as a basic social institution. More than that, it devotes an entire article to the family. Its Article 15 categorically recognizes the Filipino family as the foundation of the nation and obligates the State to protect it. Marriage, while a contract requiring the consent of parties, is more than a civil contract. It creates a status and results in a social relation with rights, duties and liabilities. As its preservation is important not only to the contracting parties but to the State as well, its nature and consequence are subject to regulation by Congress. Thus, laws regulate, among others, the requisites of marriage, void and voidable marriages as well as the property relations of the spouses. Over time, proceedings involving legal separation, annulment of voidable marriages and declaration of absolute nullity of void marriages have proven to be lengthy and costly. Stringent evidentiary requirements have unfortunately caused undue burden to couples whose marital relations have irretrievably
Skolnick and Skolnick, FAMILY IN TRANSItION, 4th Ed., p. 41. Ibid. 7 Hood vs. Roleson, 125 Ark 30, 198 SW 1059. 8 See its Article 16. 9 See its Article 10. 10 See its Article 23. 11 Executive Order Number 209.
5 6
INTRODUCTION
broken down. They have become impediments to the dissolution of marriages that can no longer be saved. In line with the judiciarys vision under the Davide Watch of providing accessible, inexpensive, efficient and effective administration of justice, these Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders have been drafted. They reflect full adherence to the fundamental principles that the Family Courts should be more accessible to our citizens and that rules of procedure should facilitate the complete and equitable resolution of the rights and obligations of the parties with the least possible expense.
Another set of rules which has been put into effect is the procedure on Guardianship of Minors, Custody of Minors and Habeas corpus. These rules are aimed to better protect the interest of minors not only over their persons but also over their properties. These rules become especially relevant today considering that there are already a growing number of minors in our society who are earning and they should be guided and protected properly. The new procedural rule on adoption is included in this annotation. Much of the provisions have been lifted from the substantive law on the matter, namely, the New Domestic Adoption Law and the Inter-Country Adoption Law. Included in this compilation also are the Family Courts Act and the portion of the Family Code dealing with summary proceeding.
RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES
[A.M. No. 02-11-10-SC]
Section 1. Scope. This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines. The Rules of Court shall apply suppletorily.
VOID AND VOIDABLE MARRIAGES. A null and void marriage is invalid from the beginning. Only those expressly provided by law as void shall be considered void. Void marriages are those provided for in Articles 4, 35, 36, 37, 38, 40, 41, 44 and 53 of the Family Code. On the other hand, a voidable marriage is valid up to the time it is annulled. Hence, a voidable marriage is also known as an annullable marriage. The grounds for voidable marriages are provided for in Articles 45 and 46 of the Family Code.
A marriage that is annullable is valid until otherwise declared by the court; whereas a marriage that is void ab initio is considered as having never to have taken place and cannot be the source of rights. The first can be generally ratified or confirmed by free cohabitation or prescription while the other can never be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally. Consequently, void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. That is why the action or defense for nullity is imprescriptible, unlike voidable marriage where the action prescribes. Only the parties (or 4
Sec. 2
those designated by the law such as parents and guardians) to a voidable marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no legal effects except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution, and its effect on the children born to such void marriages as provided in Article 50 in relation to Articles 43 and 44 as well as Articles 51, 53, and 54 of the Family Code. On the contrary, the property regime governing voidable marriages is generally conjugal partnership (or absolute community) and the children conceived before its annulment are legitimate.1
NATURE OF THE CASE. Annulment and nullity cases are actions in rem, for they concern the status of the parties, and status affects or binds the whole world. The res is the relation between the said parties, or their marriage tie. Jurisdiction over the same by the proper Family Court depends upon the nationality or domicile of the parties, not the place of the celebration of the marriage, or the locus celebrationis.2 Thus where the plaintiff, a Filipino, is domiciled in the Philippines, the lower court has jurisdiction to annul his marriage to a Korean girl contracted by him in Korea.3 Sec. 2. Petition for declaration of absolute nullity of void marriages. (a) Who may file. A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n) (b) Where to file. The petition shall be filed in the Family Court. (c) Imprescriptibility of action or defense. An action or defense for the declaration of absolute nullity of void marriage shall not prescribe. (d) What to allege. A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at

Ninal vs. Bayadog, 328 SCRA 122. Rayray vs. Chae Kyung Lee, 18 SCRA 450. 3 Ibid.
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Sec. 2
the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. PARTIES. The only persons who can file a direct action to obtain a court decision declaring a marriage void are the husband and the wife. The rationale for this new rule was explained by the Supreme Court Committee on the Revision of Rules, thus:
Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the spouse or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and hence can only question the validity of the marriage of the spouses upon the death of the deceased spouse filed in the regular courts. On the other hand the concern of the State is to preserve marriage and not to seek its dissolution.1
This is a drastic departure from the traditional view, which is more in keeping with the concept of a void marriage, and that traditional view is that any person who can show a significant interest in the marriage can file a suit to declare the same null and void. Thus, prior to the effectivity of the new Rules on March 15, 2003, a father can file a case to declare void the bigamous marriage of his daughter to a married man.2 The heirs of a deceased father can file a case to declare void the marriage of their deceased father with their stepmother on the ground of absence of a marriage license.3 A legitimate wife can file a case to declare the marriage of her husband with his second wife void on the ground of bigamy.4
1 Rationale of the New Rules as submitted by the Committee on the Revision of the Rules to the Supreme Court, November 11, 2002, Page 2. 2 Cojuanco vs. Romillo, 167 SCRA 751. 3 Ninal vs. Bayadog, 328 SCRA 122; Tamano vs. Ortiz, 291 SCRA 584. 4 Cardenas vs. Cardenas, 98 Phil. 73; Paceter vs. Carrianga, 231 SCRA 321.
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It must be observed however that the new rule which provides that solely the husband or the wife may file an action to declare his or her marriage void applies only in case there is a need of or anyone of them desires to have a court decision as evidence of the nullity of their marriage. In other words, a void marriage can still be collaterally attacked by anyone, who could show interest in the marriage, in any other proceeding other than in a nullity-of-marriage action, by using any evidence other than a court decision. Hence, if in an intestate proceeding, a particular set of heirs wishes to question the marriage of their deceased father to a woman who claims to be the second wife, the heirs need not present a court decision for this purpose, as they could not even initiate a direct court action to obtain a court decision for nullity, but they can use any other evidence to show the nullity of the marriage for purposes of the collateral attack.5 In Gomez vs. Lipana,6 where the marriage contracted is bigamous and null and void, the marriage was held to be subject to collateral attack in the intestate proceedings instituted by the judicial administratrix for the forfeiture of the husbands share in the conjugal property. GOOD FAITH/BAD FAITH OF THE PARTIES. As a general rule, good faith and bad faith are immaterial in determining whether or not a marriage is null and void. Hence, even if a woman believed in good faith that she married a man not related to her but who, in truth and in fact, was her long-lost brother, her good faith will not cure the infirmity even if she willingly and freely cohabited with him for a reasonable length of time after discovering the relationship. She can still nullify such a marriage because it is incestuous. There are only two exceptions to the general rule that good faith and bad faith are not relevant in void marriages. These exceptions are all expressly provided by law. First, Article 35(2) states that if either of the contracting parties is in good faith in believing that a solemnizing officer has authority to solemnize a marriage though he or she actually has none, the marriage will be considered valid. Second, in the case provided in Article 41 referring to a person whose spouse disappears for four years or two years, in the proper cases, the present spouse may validly marry again if he or she: 1) has a well-founded belief that his or her spouse is dead; 2) procures a judicial declaration of presumptive death; and 3) at the time of the subsequent marriage ceremony, is in good faith together with the subsequent spouse; other
5 6
Domingo vs. Court of Appeals, 226 SCRA 572. 33 SCRA 615.
Sec. 2
wise, the subsequent marriage shall be considered void in accordance with Article 44. In these two exceptions, the good faith even of only one of the contracting parties shall make the marriage valid. To be void, both of the contracting parties must be in bad faith. NON-APPLICATION OF UNCLEAN HANDS DOCTRINE. The equitable doctrine of unclean hands where the court should not grant relief to the wrongdoer is not a rule as applied in nullity actions because it is merely judge made and has no statutory basis.7 This is the necessary consequence of the rule that if a marriage is void, the good faith and bad faith of the parties are immaterial. What is sought to be protected here is the interest and public policy of the State. In declaring a marriage void, the State expresses that it does not consider a union in a void marriage as serving the fundamental purpose of the State of fostering and nurturing a family which is the foundation of society. Hence, anyone of the contracting parties, namely the husband or the wife, in a void marriage can file a case to declare it null and void, regardless of his or her bad faith or good faith. Accordingly, if a person marries his or her first cousin knowing fully well of such a relationship which he or she conceals from his or her first cousin, the marriage is still void8 and it can be nullified even at the instance of the person who conceals the fact as such marriage is void for being against public policy. In Chi Ming Tsoi vs. Court of Appeals,9 where the ground of psychological incapacity under Article 36 was invoked to nullify a marriage and where evidence showed that the spouses did not engage in sexual intercourse but there was no finding as to who between the husband and the wife refused to have sexual intercourse with the other, the Supreme Court ruled that such absence of a finding as to the one who refused to have sex was immaterial because the action to declare a marriage void may be filed by either party, even the psychologically incapacitated one. Significantly, while the Family Code generally refers to an injured party in annullable or voidable marriages, it does not make any statutory reference to an injured party in null and void marriages. Nonetheless, the party who knew that he or she was entering a void marriage before its solemnization may be held liable for damages by the other contracting party under the provisions on Human Relations in the Civil Code specially Articles 19, 20, and 21 thereof.
See Faustin vs. Lewis, 85 N.J. 507, 427 A. 2d 1105. Article 38(1) of the Family Code. 9 266 SCRA 324.
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FAMILY COURTS. Republic Act No. 8369 created the Family Courts. Under Section 5 of the said law, the Family Courts shall have exclusive original jurisdiction to hear and decide complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife, or those living together under different status and agreements, and petitions for dissolution of conjugal partnership. IMPRESCRIPTIBILITY OF ACTION OR DEFENSE. The word action refers to a civil action initiated by the wife or the husband for the declaration of nullity of marriage. The word defense also refers to a pending action but, however, this defense may be relevant in any action not necessarily filed by the husband or the wife for the declaration of nullity of marriage. The word imprescriptibility means that the action can be filed any time. There is no period within which to file the case. There is no statute of limitation. Hence, a void marriage can be judicially declared as such even after 20 years of willingly living together as husband and wife. The doctrine of laches10 cannot even apply to resist an imprescriptible right.11 Imprescriptibility even connotes that the action can survive the lifetime of the parties. Hence conceptually, the action for nullity of marriage can even be commenced even after the death of the wife or the husband, by, for example, the heirs. This is so because if one is to say that the action can be commenced only during the lifetime of both the parties and not after death, then, in legal effect, there would be a prescriptive period, which would be up to the death of either of the parties.12 The new rules however has qualified the concept of imprescriptiblity. This is so because a case for nullity of marriage cannot anymore be filed after the death of anyone of the spouses.
10 Laches is different from the statute of limitations. Prescription is concerned with the fact of delay, whereas laches is concerned with the effect of delay. Prescription is a matter of time; laches is principally a question of inequity of permitting a claim to be enforced, this inequity being founded on some change in the condition of the property or relation of the parties. Prescription is statutory; laches is not. Laches is equity, whereas prescription applies at law. Prescription is based on a fixed time, laches is not. (Nielson & Company, Inc. vs. Lepanto Consolidated Mining Co., 18 SCRA 1040). 11 Heirs of Romana Injugtiro vs. Casals, G.R. No. 134718, August 20, 2001, 153 SCRA 421. 12 Ninal vs. Bayadog, 328 SCRA 122.
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Sec. 2
This is clearly inferable in Section 24(a) of the Rules which provides that in case a party dies at any stage of the proceedings before entry of judgment, the court shall order the case closed and terminated without prejudice to the settlement of the estate in proper proceedings in the regular courts. It is clear that a nullity case cannot survive or cannot go on after the death of one party. By necessary implication, a nullity case cannot be filed if only one of the spouses is alive. PSYCHOLOGICAL INCAPACITY. The complete facts showing the manifestations and indicators of one or both of the parties psychological incapacity to perform the essential marital obligations must be alleged. The requirement of alleging the complete facts, as distinguished from ultimate facts, does not mean that the complaint should include all facts but only those relevant to the issue.13 There should be no suppression of facts showing psychological incapacity as the issue must be litigated more transparently.14 There must be sufficient allegations showing that the psychological incapacity existed at the time or prior to the marriage ceremony. The attributes of psychological incapacity under Article 36 are that it has a root cause, that it is marked by juridical antecedence, and that it is grave and incurable or permanent.15 However, for purposes of alleging the cause of action for psychological incapacity, expert opinion need not be alleged.16 Considering that the root cause can generally be determined only by an expert opinion of an expert witness such as a clinical psychologist or a psychiatrist, the root cause of the psychological incapacity need not therefore be alleged in the petition.17 The rationale for this new rule was explained by the Supreme Court Committee on the Revision of Rules, thus:
To require the petitioner to allege in the petition the particular root cause of the psychological incapacity and to attach thereto the verified written report of an accredited psychologist or
13 Minutes of the Meeting of the Supreme Court En Banc, February 21, 2003, Page 3. 14 Minutes of the Meeting of the Supreme Court En Banc, February 21, 2003, Page 3. 15 Republic of the Philippines vs. Court of Appeals and Molina, G.R. No. 108763, February 13, 1997. 16 Associate Justice Artemio V. Panganiban, in his position paper dated February 20, 2003 submitted to the Supreme Court En Banc relayed his opinion that the allegation of the root cause must still be made. 17 Barcelon vs. Court of Appeals, G.R. No. 125329, September 10, 2004, 410 SCRA 446.
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11
psychiatrist have proved to be too expensive for the parties. They adversely affect access to justice of poor litigants. It is also a fact that there are provinces where these experts are not available. Thus, the Committee deemed it necessary to relax this stringent requirement enunciated in the Molina Case. The need for the examination of a party or parties by a psychiatrist or clinical psychologist and the presentation of psychiatric experts shall now be determined by the court during the pre-trial conference.18
Expert analysis by psychiatrists or psychologists is helpful19 but the fees of these experts have skyrocketed making its strict compliance an anti-poor requirement.20 Thus, their findings and analysis need not be alleged in the complaint. During the course of the proceedings, they can be presented and testify on their findings. However, the judge is not bound by their findings. The judge must always decide on the basis of the totality of the case. The personal, medical or psychological examination of respondent is not a requirement for a declaration of psychological incapacity and that it is not a condition sine qua non for such declaration.21 If the psychological incapacity is so serious and obvious, the testimony of the psychologist or the psychiatrist may even be dispensed with. Sec. 3. Petition for annulment of voidable marriages. (a) Who may file. The following persons may file a petition for annulment of voidable marriage based on any of the grounds under Article 45 of the Family Code and within the period herein indicated: (1) The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his or her consent, within five years after attaining the age of twenty-one unless, after attaining the age of twenty-one, such party freely cohabitated with the other as husband or
18 Rationale of the New Rules as submitted by the Committee on the Revision of Rules to the Supreme Court, November 11, 2002, Page 3. 19 Matias vs. Dagdag, G.R. No. 109975, February 9, 2001; Hernandez vs. Court of Appeals, G.R. No. 126010, December 8, 1999. 20 Minutes of the Meeting of the Supreme Court En Banc, December 13, 2002, Pages 2-3. 21 Marcos vs. Marcos, G.R. No. 136490, October 19, 2000.
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Sec. 3
wife; or the parent, guardian or person having legal charge of the contracting party, at any time before such party has reached the age of twenty-one; (2) The sane spouse who had no knowledge of the others insanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval or after regaining sanity, provided that the petitioner, after coming to reason, has not freely cohabited with the other as husband or wife; (3) The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud, provided that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as husband or wife; (4) The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the time the force, intimidation, or undue influence disappeared or ceased, provided that the force, intimidation or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as husband or wife; (5) The injured party where the other spouse is physically incapable of consummating the marriage with the other and such incapacity continues and appears to be incurable, within five years after the celebration of marriage; and (6) The injured party where the other party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable, within five years after the celebration of marriage. (b) Where to file. The petition shall be filed in the Family Court. GROUNDS, PARTIES, PRESCRIPTIVE PERIOD. Hereunder, is a tabulation of the grounds, parties and prescriptive period for bringing an action for annulment.
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GROUND 1. No-Parental Consent
PARTY TO FILE THE SUIT
PRESCRIPTIVE PERIOD
a. Parent or Guardian Anytime before no-conhaving Legal Charge sent party reaches age of no-consent party of Twenty-One b. No-Consent Party Within Five Years after attaining Twenty-One
2. Insanity
a. Sane Spouse without At anytime before death knowledge of insanity of either party b. Relative, guardian or At anytime before death person having legal of either party charge of insane c. Insane Spouse During lucid interval or after regaining sanity Within Five Years after discovery of fraud Within Five Years from time force, intimidation or undue influence disappeared or ceased Within Five Years after the marriage ceremony
3. Fraud 4. Vitiated Consent
Injured Party Injured Party
5. Incapability to Consummate/ Sexually transmissible disease
Injured Party
Sec. 4. Venue. The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing, or in case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner. In stations where no branches of the Regional Trial Court are designated as Family Courts, the cases falling within the jurisdiction of the Family Courts shall be raffled among the branches of the Regional Trial Court within the same station which shall try and decide such cases according to existing issuances. (Supreme Court Resolution En Banc dated July 8, 2003, effective August 15, 2003)
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Sec. 5
VENUE. The fixing of the residency requirement in the rule is a matter of venue.1 It is constitutive of the definition of the place where the case is to be filed. The petitioner can elect where he or she wants to file the nullity or annulment case. The petitioner has the choice of filing it either in the Family Court of the province or city where he or she resides or where the respondent has been residing. In both cases, it is required that whatever the choice of the petitioner, there must be a showing that either the petitioner or respondent has been residing in the place where the case is filed for a period of at least six (6) months prior to the filing of the petition. This residency requirement has been adopted to prevent the petitioner from harassing the respondent by filing the petition at a venue most inconvenient to the respondent.2 If the respondent is a non-resident, the petitioner can choose to file it in the place where the respondent may be found. The six month-residency requirement is not required in this case in so far as the non-resident respondent is concerned. Hence, if the petitioner files the case in the place where the non-resident respondent may be found, there is no need to show that the non-resident respondent has been living in such place for six months prior to the filing of the petition. Sec. 5. Contents and form of petition. (1) The petition shall allege the complete facts constituting the cause of action. (2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved. If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action.
1 Minutes of the Meeting of the Committee on the Revision of the Rules of Court, October 23, 2000, Page 2. 2 Minutes of the Meeting of the Committee on the Revision of the Rules of Court, September 30, 2002, Page 2.
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(3) It must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a foreign country, the verification and certification against forum-shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country. (4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period. Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition. CONTENT. The filing of an action for nullity or annulment must allege not only the complete facts constituting the cause of action but also other necessary matters involving the family, such as support, property arrangement, custodial rights, administration of properties and such other matters that may need urgent court action. VERIFICATION AND CERTIFICATION. A typical sworn verification/certification form is as follows:
VERIFICATION/CERTIFICATION I, _____________________, after being duly sworn to in accordance with the law do hereby depose and say that: I am the petitioner in the above-entitled case and have caused the preparation and filing of this petition; I have read all the allegations contained therein and that the same are true and correct of my own personal knowledge or based on authentic records; I have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal or agency; To the best of my knowledge and belief, no such other action or proceeding
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Sec. 6
involving the same issues is pending in the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal or agency; and if I should learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal or agency, I shall notify the court within five (5) days from knowledge thereof. ______________________ Affiant SUBSCRIBED AND SWORN TO before me this ___ day of __________ at Quezon City, affiant exhibiting to me her community tax number ________________ issued on ______________ at ___________________. Doc. No. __________ ; Page No. _ ________ ; Book No. _________ ; Series of 2003 Notary Public
COPIES. Six (6) copies shall be made. The Office of the Solicitor General (OSG) and the Office of the Provincial or City Prosecutor shall be furnished a copy each. The OSG and the Office of the Provincial or City Prosecutor are the representatives of the State. Hence, they must be informed of the proceeding. In fact, the Office of the Provincial or City Prosecutor must actively participate all throughout the proceedings.1 SANCTION. Failure to comply with the requirements as to content, verification, certification of non-forum shopping, and the copies may be a ground for immediate dismissal of the case. Sec. 6. Summons. The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules: (1) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be ef
1
Sin vs. Sin, G.R. No. 137590, March 26, 2001.
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fected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such places as the court may order. In addition, a copy of the summons shall be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient. (2) The summons to be published shall be contained in an order of the court with the following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to answer within thirty days from the last issue of publication. PUBLICATION. Service of summons by publication is constructive notice. It is highly possible that the respondent might not even have read the newspaper where the summons was published. However, the complete and strict observance of the statutory requirements on publication shall allow the proceedings to move on even without the respondent as completion of the requirement constitutes service to the respondent. NEWSPAPER OF GENERAL CIRCULATION. A newspaper of general circulation means a newspaper that is published for the dissemination of local news and general information; has a bona fide subscription list of paying subscribers; is published at regular intervals.1 It need not be a newspaper with the largest number of subscribers.2 No fixed number of subscribers is necessary to constitute a newspaper of general circulation.3 There is even no requirement that the newspaper is a daily newspaper.4 However, it should not be a newspaper devoted to the interests or published for the entertainment of a particular class, profession, trade, calling, race or religious denomination.5
1 Basa vs. Mercado, 61 SCRA 632. 2 Fortune Motors, Inc. vs. Metropolitan Bank and Trust Company, 265 SCRA 72; Banta vs. Pacheco, 74 Phil. 67. 3 Basa vs. Mercado, 61 Phil. 632. 4 Fortune Motors, Inc. vs. Metropolitan Bank and Trust Company, 265 SCRA 72; Banta vs. Pacheco, 74 Phil. 67 5 Basa vs. Mercado, 61 Phil. 632.
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Sec. 6
SERVICE. If the summons is to be published, a copy must also be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient. Non-compliance with this requirement will constitute a fatal defect in the service.6 RULES ON SERVICE OF SUMMONS IN RULES OF COURT. The new rules provide that Rule 14 on summons in the Rules of Court shall also govern. The pertinent provisions of Rule 14 that are applicable are reproduced hereunder.
Rule 14 SUMMONS SECTION 1. Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. (1a) SEC. 2. Contents. The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. (3a) SEC. 3. By whom served. The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons. (5a) SEC. 4. Return. When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiffs counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service. (6a) SEC. 5. Issuance of alias summons. If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiffs
Sahagun vs. Court of Appeals, G.R. No. 78328, June 3, 1991.
Sec. 6
19
counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. (4a) SEC. 6. Service in person on defendant. Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. (7a) SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendants office or regular place of business with some competent person in charge thereof. (8a) xxx xxx xxx
SEC. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. (12a) SEC. 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. (10a, 11a) xxx xxx xxx
SEC. 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (16a) SEC. 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in exclud-
20
Sec. 7
ing the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (17a) SEC. 16. Residents temporarily out of the Philippines. When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (18a) SEC. 17. Leave of court. Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. (19) SEC. 18. Proof of service. The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. (20) SEC. 19. Proof of service by publication. If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. (21) SEC. 20. Voluntary appearance. The defendants voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a)
Sec. 7. Motion to dismiss. No motion to dismiss the petition shall be allowed except on the ground
Sec. 8
21
of lack of jurisdiction over the subject matter or over the parties; Provided, however, That any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer. GROUNDS. A motion to dismiss is a prohibited pleading except when the ground invoked is lack of jurisdiction over the subject matter or over the parties. The grounds for a motion to dismiss have been limited mainly to prevent delay and to prevent the presentation of side issues.1 It has been the experience of the courts that a denial of a motion to dismiss will more often prompt the moving-party to elevate the matter to the appellate court which may effectively stop the proceeding in the lower court.2 Other grounds for a motion to dismiss however may be invoked as an affirmative defense in the answer.3 Sec. 8. Answer. (1) The respondent shall file his answer within fifteen days from service of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by the respondent himself and not by counsel or attorney-in-fact. (2) If the respondent fails to file an answer, the court shall not declare him or her in default. (3) Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties. VERIFICATION. The responsive pleading or the answer in a nullity or annulment case must be verified. The verification must be made by the respondent himself and not by counsel or attorney-infact.
1 Minutes of the Meeting of the Committee on the Revision of Rules of Court, October 28, 2002, Page 2. 2 Minutes of the Meeting of the Supreme Court En Banc, December 13, 2002, Page 7. 3 Minutes of the Meeting of the Supreme Court En Banc, December 13, 2002, Page 7.
22
Sec. 8
DEFAULT. If the respondent fails to answer, the court shall not declare him or her in default. However, if, erroneously, the court renders a default judgment in an annulment case, this would not prevent the decree from having legal effect. An erroneous judgment is not a void judgment.1 COLLUSION. Collusion is not mere agreement. It is a situation where, for purposes of getting an annulment or nullity decree, the parties come up with an agreement making it appear that the marriage is defective due to the existence of any of the grounds for the annulment of marriage or the declaration of its nullity provided by law, and agree to represent such false or non-existent cause of action before the proper court with the objective of facilitating the issuance of a decree of annulment or nullity of marriage. The commission of a matrimonial offense, or the creation of the appearance of having committed it, with the consent or privity of the other party, or under an arrangement between the spouses, has been held to be collusion.2 Collusion implies a corrupt agreement between the husband and wife and therefore, renders dismissible any annulment or nullity case initiated through the same. Significantly, the failure to file an answer by the defendant or his or her failure, whether deliberate or not to appear in court or be represented by counsel after the filing of his or her answer cannot of itself be taken against the plaintiff as conclusive evidence of collusion, especially since the fiscal is ordered, in any case, to represent the government precisely to prevent such collusion.3 However, failure to answer, in connection with other circumstances such as an agreement between the parties, duly proven in court, that the respondent shall withdraw his or her opposition or shall not defend the action, can be evidence of collusion4 but is not THE evidence of collusion. Indeed, even if there is an agreement between the parties to file the annulment or nullity case, collusion will not exist if the grounds relied upon for the annulment or nullity truly exist and are not just concocted. As held in the case of Ocampo vs. Florenciano,5 which is a case for legal separation but which is undoubtedly applicable in annulment and nullity cases in so far as the concept of collusion is concerned, there
1 See De La Cruz vs. Ejercito, 68 SCRA 1, citing Chereau vs. Fuentebella, 43 Phil. 216. 2 9 RCL 789. 3 Aquino vs. Delizo, 109 Phil. 21 4 2 ALR 705. 5 107 Phil. 35.
Sec. 8
23
will be collusion only if the parties had arranged to make it appear that a ground existed or had been committed although it was not, or if the parties had connived to bring about a matrimonial case even in the absence of grounds therefore. To say that mere agreement is collusion and therefore enough to dismiss a case is dangerous because this could very well leave the fate of the proceeding to the defendant who would, if he or she wishes to proceed with the case, deny an agreement, or who, if he or she desires to terminate the case, merely invoke that the parties agreed to file the suit even though there is a real ground for the matrimonial case. Also, in this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it.6 And proof that the defendant desires the divorce and makes no defense, is not by itself collusion.7 INVESTIGATION TO DETERMINE COLLUSION. It must be noted that investigation for collusion can be directed by the courts in three (3) instances. They are: 1) 2) 3) when the defendant does not file an answer;8 when the defendant files an answer but it does not tender an issue;9 and when the defendant files an answer and he or she does not appear in the pre-trial.10
These three different situations recognize the fact that collusion could exist before or after the filing of an answer.11 If an investigation for collusion is required, such investigation is a condition sine qua non before the court proceedings can proceed further.12
6 Williams vs. Williams, (N.Y.) 10 N.E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N.Y. Suppl. 231; Conyers vs. Conyers, 224 S.W. (2d) 688, cited in Ocampo vs. Florenciano, 107 Phil. 36. 7 Pohlman vs. Pohlman, (N.J.) 46 Atl. Rep. 658, cited in Ocampo vs. Florenciano, 107 Phil. 36. 8 Section 8(3). 9 Section 8(3). 10 Section 13(b). 11 Minutes of the Meeting of the Committee on the Revision of the Rules of Court, November 6, 2000, Page 3. 12 Corpus vs. Ochotorena, 435 SCRA 446.
24
Secs. 9-10
Sec. 9. Investigation report of public prosecutor. (1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any. (2) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of a copy of the report. The court shall set the report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition. (3) If the public prosecutor reports that no collusion exists, the court shall set the case for pretrial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial. INVESTIGATION OF THE PUBLIC PROSECUTOR. The inquiry of the public prosecutor can focus upon any relevant matter that may indicate whether the proceedings for annulment, nullity or legal separation are fully justified or not.1 If the Court issues an order directing the public prosecutor to investigate whether or not there is collusion and the petitioner, upon being subpoenaed by the public prosecutor, does not appear claiming that she does not want to reveal her evidence prematurely to the fiscal, the annulment or nullity case may be dismissed by the Court upon motion of the fiscal.2 GROUND FOR DISMISSAL. Collusion is a corrupt agreement. The determination of the fiscal as to the existence of collusion is not final. The court shall give the parties an opportunity to comment on the findings of the fiscal. If the court, after due hearing, agrees with the fiscal, the case will be dismissed. If the court does not agree, it shall set the case for pre-trial. Sec. 10. Social worker. The court may require a social worker to conduct a case study and submit the corresponding report at least three days before

1 2
Brown vs. Yambao, 102 Phil. 168. Tolentino vs. Villanueva, 56 SCRA 1.
Sec. 11
25
the pre-trial. The court may also require a case study at any stage of the case whenever necessary. SOCIAL WORKER. Section 10 does not specify whether the social worker should be the court social worker or one from the Department of Social Welfare and Development. Hence, either of them may be availed of by the court.1 This choice becomes very important considering the fact that court social workers are usually overburdened with work already2 and the continued assignment of cases to them may contribute to the delay in the disposition of the cases. Sec. 11. Pre-trial.
(1) Pre-trial mandatory. A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties. (2) Notice of pre-trial. (a) The notice of pretrial shall contain: (1) the date of pre-trial conference; and (2) an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of pretrial. (b) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial. (c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed
1 Minutes of the Meeting of the Supreme Court En Banc, January 24, 2003, Page 6. 2 Rationale of the New Rules as submitted by the Committee on the Revisions of Rules to the Supreme Court, November 11, 2002, Page 4.
26
Secs. 12-13
to file his answer, notice of pre-trial shall be sent to respondent at his last known address. Sec. 12. Contents of pre-trial brief. The pretrial brief shall contain the following: (a) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof; (b) A concise statement of their respective claims together with the applicable laws and authorities; (c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues; (d) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof; (e) The number and names of the witnesses and their respective affidavits; and (f) Such other matters as the court may require. 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 under the succeeding paragraphs. Sec. 13. Effect of failure to appear at the pretrial. (a) If the petitioner fails to appear personally, 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, the court shall proceed with the pretrial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days thereafter a report to the court
Sec. 14
27
stating whether his non-appearance is due to any collusion between the parties. If there is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence. INVESTIGATION FOR COLLUSION. It must be noted that there can be a situation when the public prosecutor can be required to again investigate whether or not there is collusion. If a defendant files his answer but does not tender an issue, the court shall direct the fiscal to investigate whether or not there is collusion.1 If the fiscal determines that there is no collusion, the pre-trial will be set by the court.2 If at the pre-trial, the defendant who filed an answer does not appear, the court shall proceed with the pre-trial and require the public prosecutor to again investigate whether or not the non-appearance is due to collusion between the parties.3 Sec. 14. Pre-trial conference. At the pre-trial conference, the court: (a) May refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law. The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month. (b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition. MEDIATION. So that the proceedings can be expedited with less expenses to the parties, the said parties can have issues which can be compromised, such as those relating to properties, threshed out by means of mediation. The process of mediation is in further Section 8(3). Section 9(3). 3 Section 13(b).
1 2
28
Sec. 15
ance of Section 2(a), Rule 18 of the 1997 Rules of Civil Procedure, as amended, requiring courts to consider the possibility of an amicable settlement or of a submission to alternative modes of resolution.
Mediation is a process of resolving disputes with the aid of a neutral person who helps parties identify issues and develops proposals to resolve their disputes. Unlike arbitration, the Mediator is not empowered to decide disputes.1 It is a process where the parties to a pending case are directed by the court to submit their dispute to a Mediator, a neutral third party, who works with them to reach a settlement of their controversy. The mediator acts as a facilitator for the parties to arrive at a mutually acceptable arrangement, which will be the basis for the court to render a judgment based on a compromise.2 Mediation is protected by confidentiality. Information discovered in mediation is inadmissible in court. A party cannot use information gathered in mediation against the other party. The Mediator cannot be subpoenaed to reveal what transpired in mediation.3
Sec. 15. Pre-trial order. (a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed on the pleadings, and, except as to the ground of declaration of nullity or annulment, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties. (b) Should the action proceed to trial, the order shall contain a recital of the following: (1) Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this Rule;
1 Philippine Mediation Center, PHILJA Judicial Journal, January-March 2002 Issue, Volume 4, Issue No. 11, Page 1. 2 Philippine Mediation Center, PHILJA Judicial Journal, January-March 2002 Issue, Volume 4, Issue No. 11, Page 1. 3 Ibid., Pages 3-4.
Sec. 15
29
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, that have been marked and will be presented; (4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and (5) Schedule of the presentation of evidence. (c) The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits. (d) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case, unless modified by the court to prevent manifest injustice. (e) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications. CONTROL OF THE CASE. The rationale for this new rule was explained by the Committee on the Revision of Rules, thus:
The Pre-Trial Order should expedite the proceedings. To induce the parties to give due importance to pre-trial proceedings, they are prohibited from presenting evidence or raising issues during trial which were not stated in the pre-trial order unless the court modifies the order to prevent manifest injustice. Parties are given the opportunity to propose corrections or modifications in the pre-trial order issued by the court within five (5) days from receipt thereof.1
BARRED EVIDENCE. The parties must come to court prepared for pre-trial. This is important because the rules do not expressly provide allowing the parties to reserve their right to introduce ad1 Rationale of the New Rules as submitted by the Committee on the Revision of the Rules to the Supreme Court, November 11, 2002, Page 5.
30
Sec. 16
ditional pieces of evidence during the trial, which were not presented during the pre-trial. It must be observed that the rules require each party to furnish the other party his or her pre-trial brief at least three days prior to the pre-trial, giving each party therefore time to prepare for the pre-trial. It is also required that all evidence intended to be presented must be stated in the pre-trial brief. Likewise, it is required to state the names and number of witnesses and to attach in the pretrial briefs their respective affidavits. Each party therefore will be informed even before the pre-trial of the witnesses to be presented, the number of the witnesses and the nature, purpose, extent and scope of the testimonies of the witnesses. During the pre-trial, they also have to present the testimonies in affidavit form, their documentary evidence, and the issues to be resolved. If these requirements are all observed, there will therefore be no surprises during the trial. Hence, reservations to present any evidence cannot be made during the pre-trial as there is no more justification for the same. Sec. 16. Prohibited compromise. The court shall not allow compromise on prohibited matters, such as the following: (a) The civil status of persons; (b) The validity of a marriage or of a legal separation; (c) Any ground for legal separation; (d) Future support; (e) The jurisdiction of courts; and (f) Future legitime.
PROHIBITED COMPROMISE. Section 16 is a restatement of Article 2035 of the Civil Code. Restating substantive law in the rule is necessary to remind the parties and litigants of the same to avoid mistakes1 that could delay the disposition of the case. The phrase such as the following indicates the non-exclusiveness of the enumeration so that future laws can be accommodated.2
1 Minutes of the Meeting of the Supreme Court En Banc, December 13, 2002, Page 7. 2 Minutes of the Meeting of the Supreme Court En Banc, December 13, 2002, Page 7.
Sec. 17
31
SUSPENSION. No suspension of the case can be made for the purpose of discussing a compromise upon the question of the validity of the marriage. An annulment suit cannot be terminated by way of a compromise agreement. No valid compromise is legally possible on the issue of the validity of marriage.3 Sec. 17. Trial. (1) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. (2) The grounds for declaration of absolute nullity or annulment of marriage must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (3) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a party to privacy; or would be offensive to decency or public morals. (4) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court. FULL-BLOWN HEARING. In all cases, a full-blown hearing must be undertaken where the parties are duty-bound to prove their grounds by preponderance of evidence. The judge himself or herself shall hear the case. The hearing cannot be delegated to a commissioner or the clerk of court. Also, summary proceedings are not allowed. Likewise, a counterclaim seeking to annul defendants marriage to petitioner, although not denied or resisted by the latter, cannot be decided by summary judgment proceeding first, because such ac
3
Mendoza vs. Court of Appeals, 19 SCRA 756.
32
Sec. 17
tion is not one to recover upon a claim or to obtain a declaratory relief, and second, because it is the avowed policy of the State to prohibit annulment of marriages by summary proceedings.1 Even if the allegations in the petition as to the grounds for annulment are categorically admitted by the respondent, judgment on the pleadings cannot be decreed by the court. In actions for declaration of nullity or annulment of marriage or legal separation, the material facts alleged in the complaint shall always be proved.2 ROLE OF PUBLIC PROSECUTOR. In annulment and nullity cases, the prosecuting attorney or the fiscal must be present. Aside from making sure that there is no collusion or that the evidence is not fabricated, it is the duty of the Fiscal not only to defend a valid marriage but also to expose an invalid one.3 He or she must actively participate. Hence in Sin vs. Sin,4 where the fiscal merely filed a manifestation that there was no collusion and where he merely entered his appearance at certain hearings of the case but was not heard of anymore, the Supreme Court remanded the case for further proceeding even if the judge of the lower court already denied the petition for nullity. However, if the annulment or declaration of nullity case were vehemently opposed and heatedly contested in that the defendant filed his answer, and was represented by counsel who filed several pleadings and actively participated in the case and even cross-examined the witnesses of the plaintiff, it is clear that the litigation was characterized by a no-holds barred contest and not by collusion. Under these circumstances, the non-intervention of the fiscal or prosecutingattorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in court especially when it was not shown that evidence was suppressed or fabricated by any of the parties. These kinds of situations do not call for the strict application of Articles 48 and 60 of the Family Code.5 RECEPTION OF EVIDENCE. The judge cannot delegate the reception of evidence to a commissioner to determine whether or not the grounds for annulment or nullity really exist. However, as to
Roque vs. Encarnacion, 95 Phil. 643. Section 1, Rule 34 of the 1997 Rules of Civil Procedure. 3 Sin vs. Sin, G.R. No. 137590, March 26, 2001. 4 Ibid. 5 Tuason vs. Court of Appeals, 256 SCRA 158.
1 2
Sec. 17
33
matters which involve the property relations of the parties, reception of evidence may be delegated to a commissioner. AFFIDAVITS IN LIEU OF DIRECT ORAL TESTIMONY. It is to be noted that the pre-trial order shall also state the names of witnesses who will be presented and their testimonies in the form of affidavits. The rules therefore clearly recognize the procedure that the testimonies can be in the form of affidavits. Thus, this creates another exception to Section 1, Rule 132 of the Revised Rules of Court providing that the examination of witnesses shall be in open court and, unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally. However it is up to the judge to determine whether or not, in the trial on the merits, he or she will just allow the affirmation of the affidavit as the direct testimony, or he or she will still require the oral direct testimony of the witness.6 If the affidavit, which should be duly affirmed and confirmed in court, shall stand as the direct testimony, the witness shall still be subjected to cross-examination on the contents of the said affidavit. Considering that the affidavit shall still be subjected to cross-examination, it will not constitute hearsay.7 Also, because of the cross-examination and the subsequent re-direct and re-cross-examination, the court will have the opportunity to test the veracity of the affiants allegations8 and to evaluate the demeanor of the witness whether or not it is consistent with the truth. STIPULATION OF FACTS OR CONFESSION OF JUDGMENT. An annulment or nullity decree cannot be issued by the court on the sole basis of a stipulation of facts, or a confession of judgment.9 The former is practically an admission by both parties made in court agreeing to the existence of the act constituting the ground for annulment or for the declaration of nullity of the marriage, while the latter is the admission made in court by the respondent or defendant admitting fault as invoked by the plaintiff to sever the marriage ties. The prohibition expressed in the aforesaid laws and rules is predicated on the fact that the institutions of marriage and of the family are sacred and therefore are as much the concern of the State as of the spouses; because the state and the public have vital inter6 Minutes of the Meeting of the Committee on the Revision of the Rules, October 14, 2002, Page 2. 7 Valenzuela vs. Bellosillo, 322 SCRA 337; Molina vs. People, 259 SCRA 138. 8 Valenzuela vs. Bellosillo, 322 SCRA 337. 9 Cardenas vs. Cardenas, 98 Phil. 73.
34
Sec. 17
est in the maintenance and preservation of these social institutions against desecration by collusion between the parties or by fabricated evidence. The prohibition against annulling a marriage based on the stipulation of facts or by confession of judgment or by non-appearance of the defendant stresses the fact that marriage is more than a mere contract between the parties; and for this reason, when the defendant fails to appear, the law enjoins the court to direct the prosecuting officer to intervene for the State in order to preserve the integrity and sanctity of the marital bonds.10 However, stipulation of facts or confession of judgments, if sufficiently supported or corroborated by other independent substantial evidence to support the main ground relied upon, may warrant an annulment of a marriage or the declaration of nullity of the same. Interpreting the provision under the Civil Code relative to confession of judgment and stipulation of facts in legal separation cases which interpretation is also applicable in annulment and declaration of nullity cases both under the Civil Code and the Family Code, the Supreme Court, in Ocampo vs. Florenciano,11 stated.
As we understand the article it does not exclude as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiffs demand. This did not occur. Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendants confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it. The mere circumstance that defendant told the fiscal that she liked also to be legally separated from her husband, is no obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her willingness

10 11
Tolentino vs. Villanueva, 56 SCRA 1. 107 Phil. 35.
Sec. 17
35
to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes precaution against collusion, which implies more than consent or lack of opposition to the agreement.
However, in the case of Cardenas vs. Cardenas and Rinen,12 where the first wife filed an annulment of marriage case with respect to the subsequent marriage of her husband with the second wife and where, during the hearing, there was a stipulation of facts entered into by the first wife and the defendants, whereby, the parties agreed that the first wife was married to her husband (one of the defendants) prior to his marriage to the second wife (the other defendant), and where the marriage certificates of the first and second marriages were duly attached to the stipulation of facts, the Supreme Court ruled that the stipulation of facts and the attached marriage certificates were sufficient to declare as null and void the second marriage. The Supreme Court stated thus
In disposing of this appeal we did not overlook Article 88 of the New Civil Code which provides that No judgment annulling a marriage shall be promulgated upon a stipulation of facts * * *. This article and Article 101 on legal separation of the same Code contemplate the annulment of marriage or their legal separation by collusion. In this case, the possibility of such collusion is remote, because the interest of the two wives are conflicting. Apart from this, the marriage certificates attached to the stipulation of facts are evidence and cannot be deemed as stipulation of facts.
EXCLUSION OF PERSONS WITHOUT DIRECT INTEREST. While court proceedings are supposed to be public, the public can be removed from the courtroom if the administration of justice can best be served by doing so. The public can be excluded from the courtroom if the court finds that open court testimony would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a party to privacy; or would be offensive to decency or public morals. EVIDENCE. A case for declaration of nullity of marriage and for annulment of a voidable marriage is a civil case.13 The quantum

12 13
98 Phil. 73. Antonio vs. Reyes, G.R. No. 855800, March 10, 2006.
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of evidence is preponderance of evidence.14 The evidence that should be presented depends upon what ground for nullity or annulment is invoked. UNDER 18 YEARS OF AGE. If the ground for nullity is that one of the parties is below 18 years of age at the time of the marriage ceremony, the date of birth of the said party and the date of the marriage ceremony must be proven. The Certificate of Live Birth and the Certificate of Marriage are adequate proofs to determine the age of the child at the time of the marriage ceremony. These certificates can be obtained from the National Statistics Office and the Office of the Local Civil Registrar of the place where the person involved was born and where he or she had his or her marriage solemnized. The best evidence of the fact of birth of the child is the certificate of live birth. The best evidence of the fact of marriage is the marriage contract or certificate of marriage. Hence, if the certificate of live birth stated that one of the parties was born on January 1, 1990 and the certificate of marriage stated that such party was married on January 1, 2006, the marriage is clearly void because the child was only 16 years of age when the marriage ceremony took place. If the certificate of marriage falsely stated that the person was already 19 years of age because the certificate of marriage likewise falsely stated that he was born on January 1, 1987, the marriage will still be void because what will be controlling as to the age of the party is the birth date contained in the certificate of live birth. NO AUTHORITY OF THE SOLEMNIZING OFFICER. If the ground is that he or she is a minister of a religious sect who had no authority to solemnize a marriage, a good proof of such absence is an official certification coming from the Office of the Civil Registrar General (the National Statistics Office) that the person has no license to solemnize a marriage at the time of the marriage celebration. Also, one of the parties must belong to the sect or religion of the solemnizing officer. The marriage is void only if the parties are both in bad faith. Thus, if both are in doubt of the authority of the solemnizing officer at the time of the marriage celebration, and the marriage ceremony took place, the marriage is void. If only one party were in bad faith and the other party were in good faith in believing that the solemnizing officer had authority when in fact he had none, the marriage is valid.15

14 15
Antonio vs. Reyes, G.R. No. 855800, March 10, 2006. Article 35(2) of the Family Code.
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To know the sect or religion of the solemnizer and whether or not he or she has authority, the Office of the Civil Registrar General (the National Statistics Office) can issue, upon request, a certified copy of the Certificate of Registration and Authority to Solemnize Marriage of the solemnizer. His or her sect, the territorial limits of his or her authority, his or her license number and the period of effectivity of his or her license are indicated in the certificate. If a judge solemnized the marriage, he or she must be an incumbent judge and must solemnize only within his or her jurisdiction. A certification from the Supreme Court can be obtained to prove the jurisdiction of the judge and to show whether or not he or she is still an incumbent judge. NO VALID MARRIAGE LICENSE. A valid marriage license has a lifetime of 120 days from the time it is issued and it shall be automatically canceled at the expiration of said period.16 A Marriage contracted using a lapsed marriage license is void. The time of issuance is the date when the Local Civil Registrar signed the license.17 At the bottom part of a typical marriage license prior to the signature of the local civil registrar is the inscription IN WITNESS WHEREOF, I have signed and issued this license, this ____ day of ________ 2005. To prove that there is no marriage license, a certification of its non-existence from the Office of the Local Civil Registrar from where the alleged marriage license was purportedly issued is adequate proof of the fact that there is no marriage license.18 The certification of the Local Civil Registrar can state that there is absolutely no marriage license with the number sought to be verified or that the marriage license was indeed issued but not to the people indicated in the marriage contract but to other people. In both cases, there is absence of a valid marriage license. As corroborative evidence, the Registry Book on Application for Marriage License and License Issuance can be presented. This book
16 Article 20 of the Family Code. 17 FAMILY PERSONS AND RELAtIONS LAW by Melencio S. Sta. Maria, 2004 Edition, Page 145 citing the Minutes of the 145th meeting of the Civil Code and Family Law Committee, June 28, 1986, Page 15. 18 Carino vs. Carino, G.R. No. 132529, February 2, 2001; Republic of the Philippines vs. Court of Appeals, 236 SCRA 257.
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contains the name of the contracting parties, the date when they filed their marriage application, the marriage license number and the date of issuance of the marriage license, and the date when the marriage license was actually obtained by the contracting parties. Significantly, a Certificate of Marriage or the Marriage Contract can prove that there is no marriage license. Thus where a certificate of marriage or marriage contract patently shows on its face that the solemnization of the marriage occurred on November 15, 1973 before the issuance of the marriage license on September 17, 1974, the Supreme Court declared the marriage void on the ground of absence of a formal requisite of marriage which is a valid marriage license.19 BIGAMY. Bigamy can be proven by adducing evidence that a person entered into a contract of marriage with a person while his or her first marriage is still subsisting. To prove bigamy, the first marriage contract and the second marriage contract of the same person showing that he or she is married to two different people must be presented. The fact that he or she is the same person who married twice must be proven. This can be proven from the two marriage contracts themselves. For example, in the column for either the husband or the wife, there are entries providing for the names of the husbands or the wifes parents and their addresses. Hence, if the parents of Juan de la Cruz are the same in the first and second marriage contracts, then Juan de la Cruz of the first marriage is identical with the Juan de la Cruz of the second marriage. To prove that the first marriage has not been dissolved, a certification from the office of the local civil registry of the place where the first marriage was celebrated showing that an annulment or nullity decree has not been filed in the said office in relation to the first marriage can be obtained. To prove that the first spouse is not dead at the time of the second marriage, a certification from the National Statistics Office showing that no death certificate has been filed or registered with respect to the first spouse from the period starting from the celebration of the first marriage up to the time of the solemnization of the second marriage. MISTAKE IN IDENTITY. Mistake of identity as a ground for nullity covers only those situations in which there has been a mistake as to the actual physical identity of the other party. The classic case is the situation of twins. It does not include mistake in the name, the

19
Sy vs. Court of Appeals, G.R. No. 127263, April 12, 2000.
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character of the person, or in his or her attributes, his or her age, religion, social standing, pedigree, pecuniary means, temperaments, acquirements, conditions in life or previous habits.20 SUBSEQUENT MARRIAGE UNDER ARTICLE 53. Article 52 of the Family Code provides that the judgment of annulment or of absolute nullity of marriage, the partition and distribution of the properties of the spouses, and the delivery of the presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise the same shall not affect third persons. Article 53 provides that either of the former spouses may marry again after complying with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. To prove the nullity of marriage under Article 53, a certification from the local civil registrar must be presented to the effect that no registration of the annulment or nullity decision or decree of the previous annulled or voided marriage has been made. This certification alone is enough to prove that the subsequent marriage is void. Likewise a certification from the proper registry of properties where the properties are located to the effect that the partition and distribution of the properties of the spouses as well as the delivery of the presumptive legitime have not been registered with them should be presented in court to prove the nullity of the subsequent marriage. Also, this certification is enough to prove that the subsequent marriage is void. PSYCHOLOGICAL INCAPACITY. The testimony of the petitioner as to the physical manifestations of the psychological incapacity to perform the essential marital obligations is very important. The root cause, juridical antecedence, gravity and incurability of the psychological incapacity must also be proven. The presentation of expert witnesses such as a psychologist or a psychiatrist and his or her written psychological or psychiatric report is highly advisable. However, the personal medical or psychological examination of respondent is not a requirement for a declaration of psychological incapacity and that it is not a condition sine qua non for such declaration.21 Accordingly experts in the fields of neurological and behavioral sciences are competent to determine the root cause of psychological incapacity.22
20 FAMILY PERSONS AND RELAtIONS LAW by Melencio S. Sta. Maria, 2004 Edition, Pages 189-190, citing Mckee vs. Mckee, 50 ALR 3d 1290. 21 Marcos vs. Marcos, G.R. No. 136490, October 19, 2000. 22 Barcelona vs. Court of Appeals, 412 SCRA 41.
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If there has already been a declaration of nullity by the church, the decision of the church marital tribunal can be presented and it shall have a persuasive effect.23 The court must always based its decision from the totality of the evidence.24 INCESTUOUS MARRIAGES. The Certificates of Live Birth of the contracting parties obtainable from the office of the local civil registrar of the municipality or the city where they were born or from the National Statistics Office are adequate evidence to prove the relationship of the parties. COLLATERAL BLOOD RELATIVES. The collateral blood relatives must be within the fourth civil degree of consanguinity This will include uncles, aunties, (first) cousins, nieces and nephews, grandnieces and grandnephews, granduncles and grandaunties. If, for example, the marriage is between first cousins whose respective fathers are siblings, the documentary evidences that could be presented here would include the certificates of live birth of the contracting parties which will show the names of their respective fathers. The certificates of live birth of their respective fathers will show the names of their common parents. These proofs will show that the parties are first cousins. If, for example, the marriage is between a person and his aunt (who is the sister of his father), the documentary evidences that could be presented are 1) the birth certificate of the contracting party which will show the name of his father; 2) the birth certificate of the said father which will show the names of his parents (who, in turn is the grandparents of the contracting party); 3) and the birth certificate of the aunt which will show the names of her parents who, definitely, will be the same as the parents of the contracting partys father. STEP-PARENTS AND STEP-CHILDREN. The documentary evidences that should be presented here are: 1) the certificate of live birth of the stepchild which will definitely show the name of the parent who got married to the stepmother or stepfather; and 2) the certificate of marriage of the stepchilds parent and the step-mother
23 Republic of the Philippines vs. Court of Appeals and Molina, G.R. No. 108763, February 13, 1997. 24 Marcos vs. Marcos, G.R. No. 136490, October 19, 2000.
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or the stepfather; and 3) the certificate of marriage between the stepchild and the stepmother or stepfather. PARENTS-IN-LAW AND CHILDREN-IN-LAW. For example, Romeo and Juliet are married to each other. Romeos parents are Romeo, Sr. and Gina. Juliets parents are Julie and Joe. Romeo, Gina, Julie and Joe are dead. The only persons surviving are Romeo, Sr. and Juliet. Romeo, Sr. is the father-in-law of his child-in-law, Juliet who is the widow of Romeo. Romeo, Sr. and Juliet cannot marry each other. If they do, the marriage is void as it as against public policy. To prove that the marriage is void, the following documentary evidence must be presented: 1) the Certificate of Live Birth of Romeo which will show that his father is Romeo, Sr.; and 2) the certificate of marriage of Romeo and Juliet which will show the names of their respective parents and which will prove therefore that Juliet is the child-in-law of her father-in-law Romeo, Sr.; and 3) the death certificates of Romeo, Sr. and Gina. ADOPTING PARENT AND ADOPTED CHILD. An indispensable documentary evidence here is the Adoption Decree. This decree will show the name of the adopter and the adopted. SURVIVING SPOUSE OF THE ADOPTING PARENT AND THE ADOPTED CHILD. The documentary proofs to prove the nullity of this type of marriage are the Adoption Decree showing the name of the adopter and the adopted, the death certificate of the adopting parent, and the certificate of marriage of the adopting parent and his or her surviving spouse. SURVIVING SPOUSE OF THE ADOPTED CHILD AND THE ADOPTER. The documentary proofs to prove the nullity of this type of marriage are the Adoption Decree showing the name of the adopter and the adopted, the death certificate of the adopted, and the certificate of marriage of the adopted and his or her surviving spouse. ADOPTED CHILD AND THE LEGITIMATE CHILD OF THE ADOPTER. The documentary proofs to prove the nullity of this kind of marriage are the Certificate of Live Birth of the legitimate child which will show the names of his or her parents, the Adoption Decree which will show the names of the adopted and the adopters who are the parents of the legitimate child, the certificate of live birth of the
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adopted child which has already been amended due to the adoption decree. ADOPTED CHILDREN OF THE SAME ADOPTER. The documentary evidence that should be presented here are the Adoption Decrees of the contracting parties which will show the same adopters, and also the certificates of live birth of the adopted children, which have already been amended due to the adoption decree. ADOPTION DECREE. Section 15 of the Domestic Adoption Act of 1998 pertinently provides that all records , books and pa pers relating to the adoption cases in the files of the court, the Department of Social Welfare or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential. If the court finds that the disclosure of the information to a third person is necessary for purposes connected with or arising out of the adoption and will be for the best interest of the adoptee, the court may merit the necessary information to be released, restricting the purposes for which it may be used. Hence, if the surviving spouse of the adopter and the adopted child are married without the former knowing that the latter is the adopted child of his or her deceased spouse, the said surviving spouse, who was not a party to the adoption case and therefore who can be considered a third person, can ask the court for an order releasing the information about the Adoption Decree in order to provide evidence to declare his or her marriage void for being against public policy. KILLING TO MARRY ANOTHER. Article 38(9) of the Family Code relevantly provides that the following marriage shall be void from the beginning for reasons of public policy: x x x (9) between parties where one, with the intention to marry the other, killed that other persons spouse or his or her own spouse. This is a difficult ground to prove because it deals with the intention of the killer. Intentions are proven by direct or circumstantial evidence. As documentary evidence, a letter or an entry in a diary duly proven to have been written by the killer stating such intention can be presented. If there are no direct documentary evidence, circumstantial evidence will suffice if such circumstantial evidence lead only to one conclusion namely: the killing was designed solely to be able to marry another.
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CONFIDENTIALITY OF RECORD. Except by order of the court, it is prohibited for any person not a party to the suit or not counsel to the parties to examine, read or get copies of the records or parts thereof. This is to protect the reputation of the parties involved. Sec. 18. Memoranda. The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. MEMORANDA. The submission of a memorandum by the parties is optional depending on the discretion of the Court. If the State shall be required to file a memorandum, the public prosecutor shall file the memorandum in consultation with the Office of the Solicitor General. The rule recognizes the important role of the Office of the Solicitor General.1 When the case is of significant interest to the State, the Court can require the Office of the Solicitor General, in its own capacity and not in consultation with the public prosecutor, to file a memorandum.2 Though the Court may or may not require the Office of the Solicitor General to file a memorandum, there is nothing in the rules prohibiting the Office of the Solicitor General, with leave of court, to file one if it believes that the case is significant to the interest of the State. The filing of the memorandum by each of the parties is not a condition precedent in the rendition of a decision. If the parties, the Office of the Solicitor General and the Public Prosecutor, in the proper cases, are required to file their respective memorandum and they fail to do so, the court shall consider the case submitted for decision and
1 Minutes of the Meeting of the Supreme Court En Banc, February 21, 2003, Page 9. 2 Minutes of the Meeting of the Supreme Court En Banc, February 21, 2003, Page 9.
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can issue a decision with or without the respective memorandum of the parties as the memorandum is only to aid the court in resolving the case.3 CERTIFICATION. Under the Molina ruling,4 no decision in a case involving Article 36 on psychological incapacity shall be issued by the court without a certification of the Office of the Solicitor General (OSG) commenting on the petition. This OSG-certification-requirement has been dispensed with under the new rules because it has been observed that this requirement has been the cause of the delay in the disposition of nullity cases.5 Thus, the Committee on rules made the following report6 to the Supreme Court:
The Research Group and the Consultants Group, Judicial Reform Office of the Philippine Judicial Academy (PHILJA) in a letter dated February 12, 2002 addressed to Chief Justice Hilario G. Davide, Jr. submitted a paper entitled Proposal to Address the Issue of Delay in Declaration of Nullity of Marriage Cases which elaborated on the delay caused by the requirement on the submission of the certificate by the Office of the Solicitor General. WHEREAS, the Office of the Solicitor General which rarely makes a personal appearance in proceedings before the Family Court, requires the petitioner to submit to the OSG at his or her expense copies of all pleadings and transcripts of all stenographic notes; frequently asks extensions in regard to the submission of the certification, and as a matter of present policy appeals decision which are rendered without their certification or contrary to their certification, thereby causing delays in the disposition of cases and increasing costs of litigation. The observation is widely shared by legal practitioners and litigants.
3 Minutes of the Meeting of the Supreme Court En Banc, February 21, 2003, Page 9. 4 Republic of the Philippines vs. Court of Appeals and Molina, G.R. No. 108763, February 13, 1997. 5 Minutes of the Meeting of the Supreme Court En Banc, December 13, 2002, Page 5. 6 Rationale of the New Rules as submitted by the Committee on the Revision of Rules to the Supreme Court, November 11, 2002, Page 7.
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However, the active participation of the OSG may be called upon by the Family Court after the trial of the case, by requiring the parties and the public prosecutor, in consultation with the OSG, to file their respective memoranda in support of their claims. The court may also require the OSG to file its own memoranda in cases of significant interest to the State.
Sec. 19. Decision. (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rules on Liquidation, Partition and Distribution of Properties. (2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation. (3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General. (4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no properties. If the parties have properties, the court shall observe the procedure prescribed in Section 21 of this Rule. The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the petition for declaration of absolute nullity or annulment of marriage is located. DECISION. The court shall issue its decision after the presentation of all the evidences of the parties. It can either be favorable or
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not. The decision is however not the decree. Thus, if the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rules of Liquidation, Partition and Distribution of Properties. DAMAGES IN PSYCHOLOGICAL INCAPACITY CASES. The award of moral and exemplary damages and attorneys fees against the party declared to be psychologically incapacitated may not be justified. The award of moral and exemplary damages and consequently attorneys fees must involve bad faith or malice. A person who, at the time of his or her marriage, was psychologically incapacitated to marry, could not be in bad faith because precisely he or she did not, at that time, even appreciate the essential marital obligations and therefore he or she was incognitive of the basic marital covenants.1 CORAM NON-JUDICE AND ESTOPPEL. A court can only decide on issues presented by the parties in their pleadings. Anything decided beyond the pleadings is coram non-judice.2 Hence if the petition alleged that the marriage is void because of the psychological incapacity of one of the parties but the court granted the nullity on the ground of bigamy, such decision is irregular and void as it was issued without jurisdiction and hence can be collaterally attacked.3 What should have been done was to amend the pleadings to conform to the evidence.4 However, if the losing party does not assail the irregularity in his or her motion for reconsideration in the trial court which merely touched on other issues such as support, in his or her appeal to the Court of Appeals, and even in his or her petition to the Supreme Court, he or she is estopped from questioning such irregularity and the Supreme Court will not undo the decision of the lower court.5 Though jurisdictional question can be assailed anytime, it admits of exception where estoppel has supervened.6 However, in a case7 where the petitioner failed to assert the absence of a marriage license as ground for nullity in her petition
2005.
1
Buenaventura vs. Court of Appeals, G.R. No. 127358/127448, March 31, G.R. No. 131286, March 18, 2004, 426 SCRA 29. G.R. No. 131286, March 18, 2004, 426 SCRA 29. G.R. No. 131286, March 18, 2004, 426 SCRA 29. G.R. No. 131286, March 18, 2004, 426 SCRA 29. G.R. No. 131286, March 18, 2004, 426 SCRA 29. G.R. No. 131286, March 18, 2004, 426 SCRA 29.
Lam vs. Chua, Lam vs. Chua, 4 Lam vs. Chua, 5 Lam vs. Chua, 6 Lam vs. Chua, 7 Lam vs. Chua,
2 3
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based solely on psychological incapacity under Article 36 and where she only invoked such absence of a marriage license in her appeal to the Supreme Court, the Supreme Court made an exception to the general rule that litigants cannot raise an issue for the first time on appeal, and consequently, declared the marriage void due to the absence of a marriage license. The Supreme Court said that, in order to protect the substantive rights of the parties, it was making an exception to the application of the general rule considering that the marriage contract itself, which was presented as evidence, clearly and patently showed that the solemnization of the marriage occurred on November 15, 1973 before the issuance of the marriage license on September 17, 1974. There was clearly no marriage license at the time of the marriage ceremony. SPLITTING A CAUSE OF ACTION. Regardless of the ground, the only cause of action in a declaration of nullity case is that the marriage is void. Thus in Mallion vs. Alcantara,8 the Supreme Court held that a subsequent action for declaration of nullity based on the absence of a marriage license between the same parties after denial of their petition based on psychological incapacity cannot prosper. Not only is the second case barred by res judicata, but also to allow the second case would allow the splitting of a cause of action which is prohibited. PUBLICATION. If the respondent summoned by publication failed to appear in the action, the service of the decision to the respondent shall also be by publication. However, unlike the service of the summons which must be made once a week for two consecutive weeks in a newspaper of general circulation, the publication with respect to the decision will involve only the publication of the dispositive portion once in a newspaper of general circulation. This requirement is intended to cut the cost of litigation. The approach is in accord with the Constitutional mandate that free access to the court shall not be denied to any person by reason of poverty and the court to provide a simplified and inexpensive procedure. 9 RECORDING OF DECISION. The rules do not provide for the registration of the decision in any government agency. However, substantive law, namely Article 52 of the Family Code, provides that
G.R. No. 141528, October 31, 2006. Rationale of the New Rules as submitted by the Committee on the Revision of Rules to the Supreme Court, November 11, 2002, Page 4.
8 9
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the decision shall be recorded in the appropriate civil registries and registries of property. The appropriate civil registries should be the Office of the Civil Registry where the Court is located and also the Office of the Civil Registry where the marriage contract has been registered which is the Office of the Local Civil Registry where the marriage was solemnized. ENTRY OF JUDGMENT AND DECREE. Upon the finality of the decision, the Court shall issue an entry of judgment. If there are no properties to liquidate, the Decree of Absolute Nullity of Marriage or the Decree of the Annulment of a Voidable Marriage shall be issued. The Entry of Judgment and the Decree of Nullity or Annulment may be in one document only. If there are properties involved, they shall be liquidated and partitioned after finality of judgment which shall be evidenced by an entry of judgment. After the issuance of the entry of judgment, even if it has not been registered yet, the parties can already commence the liquidation, partition and distribution of the properties. The decree however shall issue only after the registration of the entry of judgment in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located,10 the registration of the approved partition and distribution in the proper Register of Deeds where the real properties are located,11 and the delivery of the childrens presumptive legitimes in case, property, or sound securities.12 The issuance of the Decree only after the entry of judgment and the liquidation of the properties is to encourage parties who quibble about their properties in the early stage of the proceedings to settle their property relations instead of waiting for the finality of the judgment granting the petition.13 The Court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.14
10 Section 22(1). 11 Section 22(2). 12 Section 22(3). 13 Rationale of the New Rules as submitted by the Committee on the Revision of Rules to the Supreme Court, November 11, 2002, Pages 7-8. 14 Section 22(b).
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Sec. 20. Appeal.
(1) Pre-condition. 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. (2) Notice of appeal. An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties. MOTION FOR RECONSIDERATION OR NEW TRIAL. A party who intends to file an appeal must first file a motion for reconsideration or a motion for new trial to give the Family Court which decided the case the opportunity to reassess and re-examine its decision. If no motion for reconsideration or for new trial is filed, the case cannot be elevated to the higher courts on appeal. The motion for reconsideration or new trial therefore is a condition precedent for an appeal. The rules do not provide for any express exception. This pre-condition is both prohibitory and mandatory. The prohibitory nature of the pre-condition is expressly provided at the outset of Section 20(1) by the phrase No appeal. The mandatory nature is highlighted by the phrase shall be made. Article 5 of the Civil Code provides that acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. Although the rules are not technically statute, they have the effect of law and must be observed by all parties to the case. GOVERNING RULES. The rules on motion for new trial or motion for reconsideration are governed by Rule 37 of the Revised New Rules of Court.
Rule 37 NEW TRIAL OR RECONSIDERATION SECTION 1. Grounds of and period for filing motion for new trial or reconsideration. Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party:
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(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law. (1a) SEC. 2. Contents of motion for new trial or reconsideration and notice thereof. The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party. A motion for new trial shall be proved in the manner provided for proof of motions. A motion for the cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence. A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. (2a) SEC. 3. Action upon motion for new trial or reconsideration. The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly. (3a, R37) SEC. 4. Resolution of motion. A motion for new trial or reconsideration shall be resolved within thirty (30) days from the time it is submitted for resolution. (n)
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SEC. 5. Second motion for new trial. A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. No party shall be allowed a second motion for reconsideration of a judgment or final order. (4a, R37; 4, IRG) SEC. 6. Effect of granting of motion for new trial. If a new trial is granted in accordance with the provisions of this Rule, the original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. (5a) SEC. 7. Partial new trial or reconsideration. If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. (6a) SEC. 8. Effect of order for partial new trial. When less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial. (7a) SEC. 9. Remedy against order denying a motion for new trial or reconsideration. An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order. (n)
Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive
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LIQUIDATION AND PARTITION. There is no prohibition for the parties to liquidate, partition and distribute the properties immediately after the finality of the decision. In case of voluntary liquidation, partition and distribution, the rules do not provide that they still have to file a motion after the issuance of an entry of judgment to be able to undertake such requirements. However, if a party is constrained to file a motion to effect the liquidation, partition and distribution because the other party does not or is not willing to voluntarily liquidate, partition and distribute, the movant can do so only after an Entry of Judgment has already been issued. In the said motion, the movant can also seek the enforcement of any judicial directive for custody and support and the delivery of presumptive legitimate. DELIVERY OF PRESUMPTIVE LEGITIME. The rules clearly provide that the delivery of the presumptive legitime shall be pursuant to Articles 50 and 51 of the Family Code which are the substantive and unamended statutory provisions on the matter. The Supreme Court cannot amend substantive law. It can only interpret and apply it. Only the legislature can make amendments. At the outset, Article 50 of the Family Code pertinently provides that the effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45. It is very clear therefore that, by explicit statutory provision of the Family Code, the enumerated effects of Article 431 are made applicable also to two (2) proper cases namely: null and void marriages under Article 40 and annulled voidable marriages under Article 45 of the Family Code. It does not therefore include legal separation cases. Significantly, the second paragraph of Article 50 provides: the final judgment in such cases shall provide for the liquidation,
1 Article 43 provides for the effects in a case a subsequent valid bigamous marriage under Article 41 is terminated by the filing of a sworn statement in the local civil registry where the subsequent spouses reside. The said effects were also made applicable by Article 50 to void marriages under Article 40 and annulled voidable marriages under Article 45.
legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings.
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partition and distribution of properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. The phrase in such cases in the said second paragraph clearly refers to the two (2) proper cases namely: null and void marriages under Article 40 and annulled voidable marriages under Article 45 of the Family Code. It does not include a legal separation case. Then, Article 51 relevantly provides: In said partition, the value of the presumptive legitime of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provide for such matters. The phrase said partition clearly refers to the partition that must be provided in the final judgment in such cases referred to in the second paragraph of Article 50. The phrase in such cases in the said second paragraph of Article 50 clearly refers only to the two (2) proper cases referred to in the first paragraph of Article 50, namely: null and void marriages under Article 40 and annulled voidable marriages under Article 45 of the Family Code. It does not include a legal separation case. It is clear therefore that, in so far as annullable or voidable marriages are concerned, the delivery of the presumptive legitime shall be made for as long as the marriage has been annulled on any of the grounds provided for in Article 45 of the Family Code. The annulment of the marriage terminates the absolute community of property as provided for in Article 99(3) or the conjugal partnership of gains as provided for in Article 126(3) of the Family Code. The said property regimes should therefore be liquidated. In the Family Code, Article 102(5) referring to the liquidation of the absolute community of property and Article 129(8) referring to the liquidation of the conjugal partnership of gains clearly provide that, in the liquidation of the said property regimes, the presumptive legitime shall be given to the common children in accordance with Article 51. From the application of Article 50 in relation to Article 43(2), it is also clear that, in so far as null and void marriages are concerned, the delivery of the presumptive legitime shall be made not in all cases of void marriages but only in the proper case provided for in Article 40. The void marriage referred to under Article 40 of the Family Code2
2 Article 40 of the Family Code provides: The absolute nullity of a previous marriage, may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.
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is the subsequent void marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void.3 Again, it must be observed that Article 50, among others, requires the delivery of the presumptive legitime. In the ordinary liquidation and partition rules of co-ownership under the Civil Code as well as in Articles 147 and 148 which are generally applicable to void marriages, there is no provision requiring the delivery of the presumptive legitime similar to Articles 50, 51 and 52 of the Family Code. As stated above, by way of exception however and following the effect of the express provision of Article 50 and the spirit of the Valdez ruling, Articles 50, 51 and 52 requiring the delivery of the presumptive legitime, exceptionally apply to a subsequent void marriage resulting from the non-observance of Article 40. PROPERTY REGIME IN A VOID MARRIAGE. In Buenaventura vs. Court of Appeals4 reiterating the ruling in Valdes vs. RTC5 the Supreme Court pronounced that, as a general rule, the property regime in void marriages is the co-ownership under Article 147 or 148, as the case may be, and, in case of liquidation and partition of such co-ownership, the ordinary rules of co-ownership under the Civil Code are applicable and not Articles 50, 51 and 52 of the Family Code. As a general rule therefore, there is no absolute community of property or conjugal partnership of gains in a void marriage. Hence, as in the Valdez case, the process of liquidation pertaining to the absolute community of property or conjugal partnership of gains cannot be applied to a marriage which is null and void due to Article 36 dealing with psychological incapacity. However, the only exception to this general rule is the void marriage under Article 40. The Buenaventura and Valdez ruling correctly pointed out that paragraphs (2), (3), (4) and (5) of Article 43 also relates only, by the explicit terms of Article 50, to voidable marriages under Article 45 and, exceptionally, to void marriages under Article 40 of the Family Code, namely, the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void. The rationale for this exceptional case as explicitly provided in Article 50 has been explained by the Supreme Court in the Valdez case when it said that:
Valdez vs. RTC, 260 SCRA 211. G.R. Nos. 127358 and 127449, March 31, 2005. 5 260 SCRA 211.
4
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the latter is a special rule that somehow recognizes the philosophy and an old doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now requiring for purposes of marriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the second marriage. It is not then illogical for the provisions of Article 43, in relations to Articles 41 and 43 of the Family Code, on the effects of termination of a subsequent marriage contracted during the subsistence of a previous marriage to be made applicable pro hac vice.
Paragraph (2) of Article 43 of the Family Code,6 in turn, explicitly provides for the liquidation, not of a co-ownership either under Article 147 or Article 148 of the Family Code, but of the conjugal partnership of gains or the absolute community of property. Hence, the liquidation of the property of the subsequent void marriage referred to in Article 40 will be exceptionally done as if the property relationship is the absolute community of property or the conjugal partnership of gains. It shall therefore follow the liquidation procedure under Article 102 referring to the absolute community of property and Article 129 referring to the conjugal partnership of gains which includes the mandatory delivery of the presumptive legitime in accordance with Article 51 (See Article 102[5] and Article 129[8] of the Family Code). The legal consequence of Article 50 of the Family Code in providing that paragraph 2 of Article 43 applies also to a void marriage under Article 40 and therefore, as legal effect, the property relations in the said void marriage shall be liquidated as if the property regime is either the absolute community or the conjugal partnership of gains gives meaning and sense to Articles 99(3) and 126(3) of the Family Code which uniformly provide that the absolute community of property and the conjugal partnership property shall be terminated when the marriage is declared void. Considering that as a general rule, there is no absolute community property (APC) or conjugal partnership of gains (CPG) in a void marriage, Articles 99(3) and 126(3) in so far as they deal with a termination of an APC or a CPG in a void
6 Article 43(3) pertinently provides: x x x the absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children, or if there be none, the children of the guilty spouse by a previous marriage, or in default of the children, the innocent spouse.
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marriage would not have any legal and juridical basis if not for the legal consequence of Article 50 in making paragraph 2 of Article 43 applicable in the subsequent void marriage under Article 40. Hence, Articles 99(3) and 126(3), in providing that the absolute community and the conjugal partnership terminate upon declaration of a void marriage, clearly refer to the subsequent void marriage under Article 40. It is very interesting to note that, in Nicdao Cario vs. Cario,7 the Supreme Court, while acknowledging that the previous marriage was void for having been solemnized without a marriage license, nevertheless stated that the subsequent marriage of one of the parties was bigamous because the first marriage, though void, was still presumed to be valid. The Supreme Court did not say that it is void because of Article 40 of the Family Code. Accordingly, the Supreme Court applied the property regime under Article 148 and not the absolute community or the conjugal partnership property. This particular decision creates confusion for, in making the presumption, there seems to be no more distinction between the voidness of the subsequent marriage under Article 40 and the voidness of the subsequent marriage due to bigamy under Article 41. By the statement of the Supreme Court presuming the validity of the first marriage, though it is indeed void due to lack of marriage license, it obfuscates the difference between Articles 40 and 41. The question now is this: if the first marriage will always be presumed valid, though it is clearly void, would there still be any difference between Article 40 and bigamy under Article 41? Is it not the law in Article 40 that there is precisely no judicial declaration of nullity of the first marriage? If in such case all subsequent marriages shall be considered void on the ground of bigamy anyway, what then would be the usefulness of Article 40 especially in the light of the doctrine laid down in the Valdez vs. RTC8 that the subsequent void marriage in Article 40 is a very exceptional void marriage? It is submitted therefore that, despite the decision of the Supreme Court in the Nicdao Cario case, the basic difference between Article 40 and Article 41 must still be maintained. The Valdez ruling is a sounder one as it is clearly based on the clear wordings and intention of Article 50 of the Family Code. Fortunately, the Valdez ruling was forcefully reiterated by the Supreme Court in the subsequent 2005 case of Buenaventura vs. Court of Appeals.9

G.R. No. 132529, February 2, 2001. 260 SCRA 221. 9 G.R. Nos. 127358 and 127449, March 31, 2005.
7 8
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PERSONS WHO CAN ENFORCE DELIVERY OF PRESUMPTIVE LEGITIME AND HOW ENFORCEMENT CAN BE MADE. The parties (the former husband and the former wife), the children, the guardian or the trustee of the childrens property can enforce the delivery of the presumptive legitime. However, the procedure for doing so for each of them differs. Under the new rules, the delivery of the presumptive legitime can be made after finality of judgment on motion of either party, referring to the former husband and the former wife, in the annulment or nullity case itself. The delivery of the presumptive legitime by the children, the guardian or the trustee of their property can be done by filing a summary court proceeding praying for such delivery under Article 253 in relation to Chapter 2 of Title XI of the Family Code. While the common children are not parties to the annulment case relative to voidable marriages under Article 45 or a nullity case relative to a subsequent void marriage under Article 40, but considering that they are materially affected by the nullity or annulment judgment in so far as the presumptive legitime is concerned, they are specially granted by the second paragraph of Article 51 of the Family Code legal standing to seek the enforcement of the judgment. The childrens guardian or the trustee of their property may likewise ask for the enforcement for and on behalf of the children. However, they cannot do so by motion in the nullity or annulment case as they are not party to the said case but by filing the proper petition in the Family Court. SUPPORT OF THE CHILDREN. Even if the marriage is annulled or nullified, the children shall still continue to be supported by the parties considering that they are still parents of their children. If the marriage is annulled, the children remain legitimate. If the marriage is voided, the children are illegitimate except when the ground for nullity is either Article 36 or Article 53 in which case the children are legitimate. However, regardless of whether the children are legitimate or illegitimate, parents are obliged to support them.10 The obligation of supporting the common children can also therefore be enforced on the basis of the decision for nullity or annulment of marriage. TERMINATION OF SUPPORT BETWEEN THE PARTIES. After the finality of the judgment of annulment or nullity, substan
10
Article 195 of the Family Code.
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tive law particularly Article 198 of the Family Code provides, among others, that the obligation of mutual support of the spouses ceases. The parties are not anymore obliged to support each other because the legal bond between them does not exist anymore. The parties are not related anymore and therefore they have no obligation to support each other. REIMBURSEMENT OF SUPPORT PENDENTE LITE. In case of voidable marriage, there is no need for the recipient to reimburse the former-provider-spouse the money received by the formerrecipient-spouse during the pendency of the case once the annulment is granted. This is so because a voidable marriage is valid up to the time it is annulled. However, in case of nullity-of-marriage, the former-recipient-spouse, who was erroneously given support pendente lite, should reimburse the former-provider-spouse all the money as support pendente lite obtained by such former-recipient-spouse during the pendency of the suit. This is so because a void marriage is considered as having never to have taken place and cannot be the source of rights.11 As a legal consequence of the declaration of nullity of marriage, the former provider-spouse was not after all liable to give support pendente lite as no legal tie existed between the parties from the inception of the union. Accordingly, the court shall require the former-recipient-spouse to return to the former-provider-spouse the money obtained as support pendente lite by him or her from such former-provider-spouse with legal interest from the dates of actual payment.12

Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage. (a) The court shall issue the Decree after: (1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located; (2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and

11 12
Ninal vs. Bayadog, 328 SCRA 122. Section 7, Rule 61 of the 1997 Rules of Civil Procedure.
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(3) The delivery of the childrens presumptive legitimes in cash, property, or sound securities. (b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition. Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected. REGISTRATION OF THE DECREE. The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and the National Census and Statistics Office. The prevailing party shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree. FORMAL EFFECT OF NON-OBSERVANCE. If the registration of the entry of judgment, the liquidation/partition, the delivery of the presumptive legitime, and the registration or recording in the proper registries are not made, the formal effect is that the Decree of Absolute Nullity of Marriage or the Decree of the Annulment of Marriage shall not issue. SUBSTANTIAL EFFECT OF NON-OBSERVANCE. If the registration of the entry of judgment, the liquidation/partition, the delivery of the presumptive legitime, and the registration or recording in the proper registries are not made, the substantial effects are the following:
1) 2) Any subsequent marriage shall be void pursuant to Article 53 of the Family Code. The property regime of the subsequent void marriage shall be the special co-ownership under Article 147 of the Family Code, in the absence of any other grounds to make the marriage void. The children of the subsequent void marriage shall however be considered legitimate pursuant to Article 54 of the Family Code.
3)
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SUBSEQUENT MARRIAGE WITHOUT ENTRY OF JUDGMENT AND DECREE. If, except for the issuance and/or registration of the entry of judgment and the Decree, all the liquidation/partition, the delivery of the presumptive legitime, and the registration or recording in the proper registries of the same as well as the recording of the judgment of nullity or annulment pursuant to these rules and Article 52 of the Family Code, together with all other requirements for a marriage, have been complied with by both of the parties, a subsequent marriage entered into by either of the said parties, without waiting for the issuance and/or registration of the entry of judgment and the Decree, shall be valid. While the registered Decree is the best evidence of the nullity or annulment, substantive law does not make the non-issuance or the non-registration of an entry of judgment or a Decree a factor to make the subsequent marriage void. Article 53 in relation to Article 52 of the Family Code makes a subsequent marriage void only if the judgment of annulment or of absolute nullity of marriage, the partition and distribution of the properties of the spouses and the delivery of the childrens presumptive legitime have not been recorded in the appropriate civil registries. Article 53 does not include the non-issuance and the non-recording of the entry of judgment or Decree as another factor to make the subsequent marriage void. Void marriages are only those expressly provided by law as void. The rules cannot be construed as providing, either expressly or impliedly, directly or indirectly, the nullity of a subsequent marriage in such a case in the absence of any statute particularly providing that the non-issuance or non-registration of the entry of judgment or the Decree shall make any subsequent marriage void. AMENDMENT OF BIRTH CERTIFICATE OF CHILDREN. As a general rule, if a marriage is void, the children conceived and born inside such a void marriage are illegitimate.1 Hence, there is a need to have the birth certificate of the children conceived and born inside a judicially declared void marriage amended so that the birth certificate can reflect their real status. The court, in its decision, shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected. However, under Article 54 of the Family Code, if the nullity or voidness of the marriage is based on Article 36 referring to psychological incapacity or Article 54 referring to non-liquidation and non1 Article 165 of the Family Code: Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code.
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recording of decree and liquidation of properties and/or non-delivery of presumptive legitime, the children are considered legitimate. Hence, if the birth certificates in these specific cases already state that the children are legitimate, there is no more need for amending the said birth certificates. This is also true in an annulled voidable marriage because such a marriage is considered valid up to the time it is annulled and therefore children born inside such a voidable or annullable marriage are legitimate. Sec. 23. Registration and publication of the decree; decree as best evidence. (a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree. (b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation. (c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children. BEST EVIDENCE. The Decree itself is not the best evidence. For the Decree to be the best evidence, it must be a registered Decree. It must be noted however that, for as long as the decision has become final, all the effects of its finality, subject to the limitation provided by law, shall ipso jure become operative even if the entry of judgment and the Decree have not yet been issued and registered. Hence, the parties become single again as to their status after finality of the decision even in the absence of an entry of judgment or the Decree. Their property regime is also automatically dissolved upon finality. One limitation which limits the effect of the finality is the non-recording of the liquidation and partition of the dissolved property regime,
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which will make a subsequent marriage void pursuant to Article 53 in relation to Article 52 of the Family Code. In effect, though the decision has become final and executory, a former spouse who has become single cannot remarry unless the judgment of nullity or annulment has been recorded, and the liquidation and partition of the properties of the dissolved property regime of the previous marriage, and the delivery of the presumptive legitime of the children in the proper cases are duly registered and recorded in the proper registries prior to the subsequent marriage. Sec. 24. Effect of death of a party; duty of the Family Court or Appellate Court. (a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts. (b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts. EFFECT OF DEATH. Death shall terminate a pending proceeding. The reason advanced by the Committee on the Revision of Rules is that the continuation of the liquidation and partition in the same proceeding would overburden the Family Court concerned, and intestate and testate proceedings are not covered by the Family Code of the Philippines.1 The law likewise provides that the judgment shall be binding upon all the parties and their successors in interest in the settlement of estate in the regular courts if the party dies after the entry of judgment of nullity or annulment. It is submitted that the rule would have been better had it provided that the judgment shall affect everybody with or without interest if the party dies after finality of judgment and not after the entry of judgment. It must be remembered that an action for nullity or annulment of marriage, involving as it does the status of a person, is an action in rem2 and therefore binding upon
Rationale of the New Rules as submitted by the Committee on the Revision of Rules to the Supreme Court, November 11, 2002, Page 9. 2 Rayray vs. Chae Kyung Lee, 18 SCRA 450.
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the whole world, whether or not the whole world has actually read or has been actually notified of the decision. The res is the relation of the parties or their marriage tie. Unless otherwise provided by law, the binding effect of a decision cannot be diminished such that it is binding upon some and not upon others and binding on different people at different times. The binding effect after finality and not after the entry of judgment is more in keeping with the enforceable effect of an executory judgment. Besides, the entry of judgment may even be issued way beyond the finality of the decision and this will result in more complications. After all, Article 52 of the Family Code already provides that it is the recording of the judgment, not the entry of judgment, that will affect third persons. Sec. 25. Effectivity. This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003. PUBLICATION. The rule was published in the March 7, 2003 issue of the Philippine Daily Inquirer. It took effect on March 15, 2003.
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RULE ON LEGAL SEPARATION

[A.M. No. 02-11-11-SC]
Section 1. Scope. This Rule shall govern petitions for legal separation under the Family Code of the Philippines. The Rules of Court shall apply suppletorily.
SIMILARITY OF PROCEDURE. The procedural rules on legal separation are similar with the rules on annulment and nullity of marriage. There are however rules which are only special to legal separation cases, such as the rules on revocation of donation and reconciliation. In legal separation, the bond of marriage is not dissolved. Legal separation is also known as relative divorce. Unlike in annulment and nullity of marriage, the grounds for legal separation may or may not exist at the time of the marriage ceremony. The ground can arise after the marriage ceremony. NATURE OF THE PROCEEDING. Unlike an annulment or nullity case which is an action in rem as it deals with status,1 a legal separation case is an action which is purely personal.2 It does not deal with status as the bond of marriage remains intact. Sec. 2. Petition.
(A) Who may and when to file. (1) A petition for legal separation may be filed only by the husband or the wife, as the case may be, within five years from the time of the occurrence of any of the following causes: (a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

1 2
Rayray vs. Chae Kyung Lee, 18 SCRA 450. Lapus vs. Eufemio, 43 SCRA 177. 64
Sec. 2
RULE ON LEGAL SEPARATION [A.M. No. 02-11-11-SC]
65
(b) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (d) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (e) Drug addiction or habitual alcoholism of the respondent; (f) dent; Lesbianism or homosexuality of the respon-
(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines; (h) Sexual infidelity or perversion of the respondent; (i) Attempt on the life of petitioner by the respondent; or (j) Abandonment of petitioner by respondent without justifiable cause for more than one year. (B) Contents and form. The petition for legal separation shall: (1) Allege the complete facts constituting the cause of action. (2) State the names of ages of the common children of the parties, specify the regime governing their property relations, the properties involved, and creditors, if any. If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visi-
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tation rights, administration of community or conjugal property, and other similar matters requiring urgent action. (3) Be verified and accompanied by a certification against forum shopping. The verification and certification must be personally signed by the petitioner. No petition may be filed solely by counsel or through an attorneyin-fact. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country. (4) Be filed in six copies. The petitioner shall, within five days from such filing, furnish a copy of the petition to the City or Provincial Prosecutor and the creditors, if any, and submit to the court proof of such service within the same period. Failure to comply with the preceding requirements may be a ground for immediate dismissal of the petition. (C) Venue. The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing, or in the case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner. In stations where no branches of the Regional Trial Court are designated as Family Courts, the cases falling within the jurisdiction of the Family Courts shall be raffled among the branches of the Regional Trial Court within the same station which shall try and decide such cases according to existing issuances. (Supreme Court Resolution En Banc dated July 8, 2003, effective on August 15, 2003) PRESCRIPTION. An action for legal separation must be filed within five years from the occurrence of the cause. After the lapse
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of the five-year period, the legal separation case cannot be filed. The time of discovery of the ground for legal separation is not material in counting the prescriptive period. Hence, if the wife commits sexual infidelity and the husband discovered such ground only after six (6) years from the time it was actually committed, the husband cannot anymore file the legal separation case as the filing of the same has already prescribed. During the Senate Committee Hearing on the Family Code on January 28, 1988, Justice Ricardo Puno had the occasion to explain the reason for the prescriptive period, to wit:
JUSTICE PUNO. Madam Chairman, this is a provision in the Family Code that is precisely in answer to certain objections in the Code of 1950, where discovery was one of the starting points of prescription. In the Code of 1950, the law says that the action for legal separation must be filed within one year from the discovery of the cause, but not later than five years from the occurrence of the cause. The discovery, however, could only serve to shorten but not to lengthen the period. So that if there is discovery before the five-year period, immediately the period for prescription commences to run and it lapses after one year. But if the discovery occurs after the occurrence, the discovery no longer serves to affect the prescriptive period. So, this, is really an improvement over the provisions of the Code of 1950 because, now, we made the five-year limitation an absolute prescriptive period so that irrespective of when it was discovered, it is the occurrence that will govern, and therefore, it will always be for five years. It will never be shortened to the period of one year. Since the law wants to preserve marriage rather than destroy it, we therefore make this five-year limitation a uniform period of prescription. The danger, Madam Chairman, is that the discovery may come so many years later, and therefore, it will make the stability of the marriage very precarious. The law assumes that if you discover it after five years, forgiveness is already the order of the day, and no longer recrimination.
REPEATED PHYSICAL VIOLENCE OR GROSSLY ABUSIVE CONDUCT. The frequency of physical violence inflicted upon the petitioner, a common child, or a child of the petitioner warrants a decree of legal separation. This ground however does not include repeated physical violence upon the child of the respondent or the guilty spouse. The law does not give a cause of action to the petitioner to file a case for legal separation on the ground that the respondent-spouse repeatedly inflicts physical violence upon his or her own child with another person. However, such repeated physical violence may be a cause to suspend or terminate, depending on the severity of the violence, the
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Sec. 2
parental authority of the respondent upon his or her own minor child with another person pursuant to Article 231(1) of the Family Code. Physical violence connotes the infliction of bodily harm. Although the physical infliction must generally cause a certain degree of pain, the frequency of the act and not the severity of the same is the determinative factor under this ground. Indeed, the act may be involve some form of violence although the same is not that severe. However, it must be inflicted with bad faith and malice. In the original draft of the Civil Law and Family Code committees, the phrase used was habitual physical violence. Justice Caguioa objected to the use of the phrase habitual as it connotes a length of time and accordingly, Justice Reyes suggested the word repeated which was adopted by the committee.1 However, even if the act is not repeated or does not involve physical violence, such act may nevertheless constitute grossly abusive conduct on the part of the respondent which may warrant the issuance of a legal separation decree. Grossly abusive conduct has no exact definition and therefore is determined on a case to case basis. Hence, a singular but serious act of squeezing of neck, pulling of hair and the like without the intent to kill may be included in this phrase.2 Also, the continued manifestation by one spouse of indifference or aversion to the other coupled with persistent neglect of the duties incident to the marital relation has been declared by American jurisprudence as cruelty enough to warrant a decree of divorce.3 In the same vein this may be an example of grossly abusive conduct as a ground for legal separation. If however, such in-difference or neglect are manifestations of the respondents psychological incapacity to perform the essential marital obligations, the same may be a ground for nullity of marriage under Article 36 of the Family Code if such behavior exists at the time of the marriage ceremony and is grave and incurable. Also, where it appears that a spouse has deliberately adopted, as a course of conduct, the use of offensive language toward the other spouse, continually calling him or her vile and opprobrious names, with the intent and fixed purpose of causing unhappiness, American
1 Minutes of the 156th joint meeting of the Civil Code and Family Law Committees held on September 27, 1986, Page 11. 2 Minutes of the 156th joint meeting of the Civil Code and Family Law Committees held on September 27, 1986, Page 11. 3 Ann. Cas, 1918B 480.
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69
courts usually consider such conduct to be legal cruelty or abusive treatment which can justify a divorce.4 Under the Family Code, such a situation can fall under grossly abusive conduct. COMPULSION BY PHYSICAL VIOLENCE OR MORAL PRESSURE TO CHANGE RELIGIOUS OR POLITICAL AFFILIATION. Answering queries and comments relative to this particular ground, Justice Ricardo Puno during the hearing on February 3, 1988 in the Senate Committee of Women and Family Relations remarked,
I did catch one suggestion that Article 55, physical violence and moral pressure to compel the petitioner to change religious or political affiliation should be amended to remove political affiliation so that it would merely be physical violence or moral pressure to compel the petitioner to change his religious affiliation. I would like to call attention to paragraph 1. In paragraph 1, it says, physical violence or grossly abusive conduct directed against the petitioner, the common child or a child of the petitioner. The physical violence here is for any purpose. So, no matter how insignificant the purpose is, as long as there is repeated physical violence, there will be a ground for legal separation. If we remove political affiliation here, it will mean that it can still be an item for purposes of legal separation except that you have to do it repeatedly. So, if youre going to have your wife change her political affiliation and you would exert physical violence repeatedly, it will also be a ground for legal separation. Now, what we did here, is we equate it with religious conviction, so that with one attempt, one incident of physical violence or moral pressure to compel the change in religious affiliation or the change in political affiliation, it can be a ground for legal separation. Now, with due respect, we believe that political ideas are probably quite as important as religious ideas. We feel that there should be unity within the family, we think that the couple should learn to live with each others political ideas. That is the main context of reconciliation. If they cannot live together within the family, how can we live together as a nation sharing different political ideals. We feel that this is an answer to the human
Ann. Cas, 1918B 487.
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Sec. 2
rights concept which includes, among others, the right to accept one anothers political beliefs. So, we feel that the nuance is not really as important as is imagined because what will happen here merely, is that you would have a repetition of the physical violence and that would then be a ground for legal separation. Finally, this is not divorce, this is not a cutting of the marital ties. It is just a separation from bed and board but they remain married, now, perhaps, thereafter, there may still be a reconciliation that would enable them to restore their family life. That was the main point that moved the committee members to include political affiliation in paragraph 2.5
CORRUPTION OR INDUCEMENT TO ENGAGE IN PROSTITUTION. Parents and those exercising parental authority have the duty, among others, to provide their unemancipated children with moral and spiritual guidance, to instruct them by right precept and good example, and to protect them from bad company and prevent them from acquiring habits detrimental to their health, studies and morals. Hence, if one of the spouses induces the petitioner, a common child, or a child of the petitioner to engage in prostitution or if such spouse connives in such corruption or inducement, a valid legal separation decree may issue to prevent the guilty spouse from exercising such morally depraved acts detrimental to the growth of the children and the family as a whole. The children here may or may not be emancipated. The immoral and corrupt act referred to is prostitution only. The inducement likewise refers to prostitution only. It cannot be any other immoral or corrupt act. Otherwise, the undue stretching of the import of the article will not serve the policy of the law of discouraging legal separation. It must likewise be observed that a mere attempt is enough to be a ground for legal separation. It is not important that the respondent successfully corrupted or induced the petitioner, a common child or a child of the petitioner to engage in prostitution, or connivance in such corruption or inducement. If the respondent is successful, it is, of course, definitely a ground for legal separation. The ground, however, does not include as the subjects of such an attempt the child of the respondent or the guilty spouse with another
5 Copied verbatim from transcript of Hearing dated February 3, 1988, 10:30 a.m. in the Senate Committee of Women and Family Relations.
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71
person. The law does not give a cause of action to the petitioner to file a case for legal separation on the ground that respondent-spouse committed the ground provided in Article 55(3) upon his or her own child with another person. However, such act may be a cause to suspend or terminate, depending on severity of the corruption inducement or connivance, the parental authority of the respondent upon his or her own minor child with another person pursuant to Article 231(2) and (4) of the Family Code. If the such corruption, inducement or connivance is successful, it can even give cause of action to permanently terminate parental authority under Article 232 of the Family Code. FINAL JUDGMENT INVOLVING MORE THAN SIX YEARS OF IMPRISONMENT. The offense for which the spouse is sentenced by final judgment of more than six years of imprisonment need not be necessarily against the other spouse, their common children or the petitioners children. The offense could have been committed against anybody. This ground can be invoked even if the convicted party has been validly pardoned. During one of the Civil Law and Family Code joint meetings, Justice Reyes and Justice Caguioa stated that the idea is the stigma created by one spouse being sentenced to imprisonment for more than six years.6 The judgment must likewise be final. Hence, the injured spouse cannot file a case for legal separation while the criminal conviction is still on appeal because, in such a case, the decision has not yet become final. While the case is still on appeal, the erring spouse is still presumed innocent and there is still a possibility that the conviction can be reversed by the higher courts. DRUG ADDICTION, HABITUAL ALCOHOLISM, LESBIANISM AND HOMOSEXUALITY. The extent and nature of drug addiction, habitual alcoholism, lesbianism and homosexuality as grounds for legal separation are the same as those in annulment cases. However, in annulment cases, the drug addiction, habitual alcoholism, lesbianism and homosexuality are instances of fraud which must exist at the time of the celebration of the marriage. In legal separation, such grounds can exist even after the marriage ceremony. In cases where a spouse had engaged in homosexual activities despite repeated demands from the other spouse for him to desist
6 Minutes of the 156th joint meeting of the Civil Code and Family Law Committees held on September 27, 1986, Page 12.
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Sec. 2
from undertakings such activities, American courts usually granted a divorce decree to the complaining spouse by considering the homosexual activity within the purview of the statutory ground of cruelty as the continued acts can create serious mental anguish on the part of the innocent spouse as to endanger her life and health. In H vs. H,7 the New Jersey Superior Court, said:
It is difficult to conceive of a more grievous indignity to which a person of normal psychological and sexual constitution could be exposed than the entry by his spouse upon an active and continuous course of homosexual love with another. Added to the insult of sexual disloyalty (which is present in ordinary adultery) is the natural revulsion arising from the knowledge of the fact that the spouses betrayal take the form of perversion.
BIGAMY. Bigamy is the act of illegally contracting a second marriage despite full knowledge that the first marriage is still validly existing or without obtaining the needed judicial declaration of presumptive death of the first spouse who was absent for four or two consecutive years pursuant to Article 41 of the Family Code. Whether the illegal second marriage has been solemnized in the Philippines or abroad is immaterial. So long as there has been a subsequent bigamous marriage, wherever celebrated, a legal separation decree may issue. However, if the bigamous marriage were committed abroad, the guilty party cannot be criminally prosecuted for bigamy in the Philippines as our penal statutes are territorial in nature. SEXUAL INFIDELITY OR PERVERSION. The husband and the wife are obliged to observe mutual love, respect and fidelity. Although adultery and concubinage are included in acts of sexual infidelity, other acts of sexual infidelity short of adultery and concubinage are enough so long as the said acts committed by one spouse would constitute a clear betrayal of the trust of his or her spouse by having intimate love-affairs with other persons. Hence, even a husbands single act of sexual intercourse with a woman other than her wife may warrant the issuance of a decree of legal separation. This is true even if the husband and the woman did not commit concubinage. This is a drastic departure from the requirements under the Civil Code where, in so far as the husband is concerned, he must have committed concubinage which is done in any of the following manner, to
78 ALR 2d 799.
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73
wit: (a) maintaining a mistress in the conjugal dwelling; (b) sexual intercourse with other woman under scandalous circumstances; and (c) cohabiting with her in any other place. Also, it has been held that a Filipina who obtains an absolute divorce abroad and subsequently marries a foreigner and cohabits with the same, has technically committed intercourse with a person other than her husband, considering that the divorce obtained abroad is not recognized in the Philippines and her subsequent marriage therefore is bigamous.8 As to sexual perversion, this would include engaging in such behavior not only with third persons but also with the spouse. Thus, the joint Civil Code and Family Law revision committees clarified that it would include sexual perversion with ones spouse and other sexual practices like oral sexual intercourse but that if one condones sexual infidelity or perversion, he is estopped from raising it as a ground for legal separation because condonation would tantamount to consent.9 Interestingly, in the United States, certain acts of perversion such as bestiality are not only grounds for relative divorce but also for absolute divorce under the ground of cruelty against the other spouse as they exert such an unsettling effect not only on the marital relationship but on the mental condition of the other spouse as it can create great psychological and physical agony on the part of the said innocent spouse. Thus, in a case where a wife and her relatives saw her husband on different occasions engaging in carnal intercourse with a cow and, when confronted about the situation by the wife, the husband merely evaded the issue and even resorted to vile language, necessitating the wife to separate from the husband, an American court ruled that for the wife to continue living with the erring spouse can seriously impair the wifes health and imperil her life, and therefore, the divorce is justified.10 ATTEMPT ON LIFE. A criminal attempt to kill a spouse is clearly an act of moral depravity which warrants a decree of legal separation. However, the attempt on the life of the spouse must pro8 Tenchavez vs. Escao, 15 SCRA 355; Manila Surety & Fidelity Co., Inc. vs. Teodoro, 20 SCRA 463. 9 Minutes of the 156th Joint Meeting of the Civil Code and Family Committees held on September 27, 1986, Page 12. 10 Prather vs. Prather, 68 NW 806.
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Sec. 2
ceed from an evil design and not from any justifiable cause like selfdefense or from the fact that the spouse caught the other in flagrante delicto having carnal knowledge with another man or woman. No previous criminal conviction is required for the legal separation case to prosper. The criminal attempt can be proven by a preponderance of evidence in the civil case for legal separation. If the guilty spouse has been criminally convicted by a competent court, the innocent spouse can disinherit the guilty spouse even if no legal separation case has been filed.11 Their children likewise can disinherit the guilty spouse unless there has been a reconciliation between them.12 If the innocent spouse had previously made provisions in a will, in favor of the guilty spouse, a legal separation decree will have the effect of revoking such provision by operation of law.13 UNJUSTIFIED ABANDONMENT. The abandonment or desertion must be willful. The act is willful when there is a design to forsake the other spouse intentionally, or without cause, and therefore, break up the marital union; deliberate intent to cease living with the other spouse; abnegation of all duties of the marriage relation, not to return. Mere severance of the relation is not sufficient. There must be a wrongful intent to desert, continued for the statutory period.14 Physical separation alone is not the full meaning of the term abandonment, if the husband or the wife, despite his or her voluntary departure from the society of his or her spouse, neither neglects the management of the conjugal partnership nor ceases to give support to his wife or her husband.15 There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation.16 Abandonment implies a total renunciation of his or her duties. The fact that the defendant never ceased to give support to his wife and children negatives any intent on his part not to return to the conjugal abode and resume his marital duties and rights. In People vs. Schelske,17 it was held that where a husband, after leaving his wife, continued to make small contributions at intervals to her support and
Article 921 of the Civil Code. Article 920(8) of the Civil Code. 13 Article 63(4) of the Family Code. 14 Tipton vs. Tipton, 169 Ia. 182, 151 N.W. 90. 15 See De la Cruz vs. Dela Cruz, 22 SCRA 333. 16 Partosa-Jo vs. Court of Appeals, 216 SCRA 692. 17 154 N.W. 781, 783.
11 12
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75
that of their minor child, he was not guilty of their abandonment, which is an act of separation with intent that it shall be perpetual, since contributing to their support negatived such intent. In In re Hoss Estate,18 it was ruled that a father did not abandon his family where the evidence disclosed that he almost always did give his wife part of his earnings during the period of their separation and that he gradually paid some old rental and grocery bills.19 The act of separation, and the continued intent to remain separate, must be wrongful in the sense that there is no reasonable excuse for the one who separated. Thus, it has been held to be abandonment by a husband where he forces his wife to leave his home by his refusal to leave with her unless she gets rid of children by a former marriage whom he knows are entirely dependent on her and where he had agreed when he married her that she might bring them to his home.20 Also, a separation in which both parties willingly concur is not, in any sense of the word, a willful desertion of one by the other.21 The abandonment must be for more than one year to warrant a decree of legal separation. It will not be granted, however, as against a spouse who became insane after the initial act of desertion or abandonment, but before the statutory period had expired, the general rule being that, in computing such period, the time during which the offending spouse has been insane cannot be included.22 The rule is grounded on the theory that the desertion must continue to be willful or intentional for the full statutory period, and that an insane person cannot be said to have or maintain such an intention, and, in addition, if he had retained the power of reason, he might have repented and returned before the expiration of the full period. It has also been held that where a husband used reasonable remonstrance and has endeavored without avail to persuade his wife not to leave him, the fact that he had submitted to the inevitable and has rendered her some assistance in connection with her going, should not be construed to imply consent to the separation.23
257 NYS 278. De la Cruz vs. Dela Cruz, 22 SCRA 333. 20 Williamson vs. Williamson, 183 Ky. 435, 209 S.W. 503, 3 ALR 799. 21 Smythe vs. Smythe, 80 Ore. 150, 149 Pac. 516. 22 Wright vs. Wright, 99 S.E. 515, 4 ALR 1331. 23 Nunn vs. Nunn, 91 Ore. 384, 178 Pac. 986, 3 ALR 500.
18 19
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Secs. 3-5
A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.24 Sec. 3. Summons. The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules: (a) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such place as the court may order. In addition, a copy of the summons shall be served on respondent at his last known address by registered mail or by any other means the court may deem sufficient. (b) The summons to be published shall be contained in an order of the court with the following data: (1) title of the case; (2) docket number; (3) nature of the petition; (4) principal grounds of the petition and the reliefs prayed for; and (5) a directive for respondent to answer within thirty days from the last issue of publication. Sec. 4. Motion to Dismiss. No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; Provided, however, That any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer. Sec. 5. Answer. (a) The respondent shall file his answer within fifteen days from receipt of sum
24
Articles 101 and 128 of the Family Code.
Secs. 6-8
77
mons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by respondent himself and not by counsel or attorney-in-fact. (b) If the respondent fails to file an answer, the court shall not declare him in default. (c) Where no answer is filed, or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties. Sec. 6. Investigation Report of Public Prosecutor. (a) Within one month after receipt of the court order mentioned in paragraph (c) of the preceding section, the public prosecutor shall submit a report to the court on whether the parties are in collusion and serve copies on the parties and their respective counsels, if any. (b) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of copy of the report. The court shall set the report for hearing and if convinced that parties are in collusion, it shall dismiss the petition. (c) If the public prosecutor reports that no collusion exists, the Court shall set the case for pretrial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial. Sec. 7. Social Worker. The court may require a social worker to conduct a case study and to submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary. Sec. 8. Pre-trial.
(a) Pre-trial mandatory. A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public
78
Sec. 9
prosecutor that no collusion exists between the parties on a date not earlier than six months from date of the filing of the petition. (b) Notice of Pre-trial. (1) The notice of pretrial shall contain: (a) the date of pre-trial conference; and (b) an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of the pre-trial. (2) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial. (3) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address. Sec. 9. Contents of pre-trial brief. The pre-trial brief shall contain the following: (1) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof; (2) A concise statement of their respective claims together with the applicable laws and authorities; (3) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues; (4) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof; (5) The number and names of the witnesses and their respective affidavits; and
Secs. 10-12
79
(6) Such other matters as the court may require. Failure to file the pre-trial or to comply with its required contents shall have the same effect as failure to appear at the pre-trial under the succeeding section. Sec. 10. Effect of failure to appear at the pretrial. (1) If the petitioner fails to appear personally, 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. (2) If the respondent filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days a report to the court stating whether his non-appearance is due to any collusion between the parties. If there is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence. Sec. 11. Pre-trial conference. At the pre-trial conference, the court may refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law. The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month. In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition. Sec. 12. Pre-trial order. (a) The proceedings in the pre-trial shall be recorded. Upon termina-
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Sec. 12
tion of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed on the pleadings, and, except as to the ground of legal separation, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties. (b) Should the action proceed to trial, the order shall contain a recital of the following: (1) Facts undisputed, admitted, and those which need not be proved subject to Section 13 of this Rule; (2) Factual and legal issues to be litigated; (3) Evidence, including objects and documents, that have been marked and will be presented; (4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and (5) Schedule of the presentation of evidence. The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits. (c) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case unless modified by the court to prevent manifest injustice. (d) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications.
Secs. 13-14
81
Sec. 13. Prohibited compromise. The court shall not allow compromise on prohibited matters, such as the following: (1) The civil status of persons; (2) The validity of a marriage or of a legal separation; (3) Any ground for legal separation; (4) Future support; (5) The jurisdiction of courts; and (6) Future legitime.
Sec. 14. Trial. (a) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. (b) The grounds for legal separation must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (c) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the partys right to privacy; or would be offensive to decency or public morals. (d) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court. COOLING-OFF PERIOD. Substantive law, particularly Article 58 of the Family Code, provides that an action for legal separation
82
Secs. 13-14
shall in no case be tried before six months shall have elapsed since the filing of the petition. This is also the reason why the new rules provide that the pre-trial shall be set after the last pleading has been served and filed, or upon receipt of the no-collusion report of the public prosecutor but, in all the said cases, not earlier than six (6) months from date of the filing of the petition. The six-month period is known as the cooling-off period. Whether or not the defendant files an answer to the complaint, no trial or hearing on the merits shall be set by the courts for six months from the filing of the petition. This six-month period is designed to give the parties enough time to further contemplate their positions with the end in view of attaining reconciliation between them. This is called the cooling-off period.
It is understandable why there should be a period during which the court is precluded from acting. Ordinarily of course, no such delay is permissible. Justice to the parties would not thereby be served. The sooner the dispute is resolved, the better for all concerned. A suit for legal separation, however, is something else again. It involves a relationship on which the law for the best of reasons would attach the quality of permanence. That there are times when domestic felicity is much less than it ought to be, is not of course to be denied. Grievances, whether fancied or real, may be entertained by one or both of the spouses. There may be constant bickering. The loss of affection on the part of one or both may be discernible. Nonetheless, it will not serve public interest, much less welfare of the husband or the wife, to allow them to go their respective ways. Where there are offsprings, the reason for maintaining the conjugal union is even more imperative. It is a mark of realism of the law that for certain cases, adultery on the part of the wife and concubinage on the part of the husband, or an attempt of one spouse against the life of the other, it recognizes, albeit reluctantly, that the couple is better off apart. A suit for legal separation lies. Even then the hope that the parties may settle their differences is not all together abandoned. The healing balm of time may aid in the process. Hopefully, the guilty parties may mend his or her ways, and the offended party may in turn exhibit magnanimity. Hence, the interposition of a six-month period before an action for legal separation is tried. x x x The recital of their grievances against each other in court may only fan their already inflamed passions against one another, and the lawmaker has imposed the period to give them opportunity for dispassionate reflection.1

1
Somosa-Ramos vs. Vamenta, Jr., 46 SCRA 110, 112, 113, 114.
Sec. 13-14
83
Failure to observe the six-month cooling-off period is a ground to set aside a decision granting legal separation. Thus in Pacete vs. Carrianga,2 where the legitimate wife filed a case with two causes of action, namely: to nullify the bigamous marriage between her husband and the latters mistress and, at the same time, to obtain a legal separation decree against her husband, and where the trial court, without observing the required six-month-cooling-off period tried the case on the merits and rendered a judgment voiding the bigamous marriage and issuing a legal separation decree, the Supreme Court set aside the decision on the ground that the six-month cooling-off period was a mandatory requirement and its non-compliance made the decision infirm. That other remedies, whether principal or incidental, have likewise been sought in the same action cannot dispense, nor excuse compliance, with any of the statutory requirement.3 Nevertheless, what is prevented from being heard during the sixmonth period is the hearing on the merits with respect to the validity or invalidity of the ground for legal separation. Any other incident such as the determination of the custody of the children, alimony and support pendente lite may be heard inside the six-month cooling-off period. The law expressly enjoins that these should be determined by the court according to the circumstances. If these are ignored or the courts close their eyes to actual facts, rank injustice may be caused. If the administrator spouse is dissipating the conjugal assets during this cooling-off period, a motion for injunction may be filed and heard seeking the prevention of the erring spouse from further undertaking such harmful acts.4 NON-APPLICATION OF 6-MONTH COOLING-OFF PERIOD. In case of legal separation where there is an allegation of violence provided for in Republic Act 9262 otherwise known as the AntiViolence Against Women and Their Children Act of 2004, the observance of the 6-month cooling-off period shall be dispensed with. EFFORTS FOR RECONCILIATION. Also, no legal separation may be decreed unless the court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. This is provided for in Article 59
231 SCRA 321. Pacete vs. Carrianga, 231 SCRA 321. 4 Somosa-Ramos vs. Vamenta, Jr., 46 SCRA 110.
2 3
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Secs. 15-16
of the Family Code. It must be remembered that, unlike in a case of annulment or declaration of nullity of a marriage where the objective of the plaintiff in such cases is the complete severance of the marriage ties, a legal separation decree will not sever such marital ties but will merely separate the husband and wife from bed and board. Sec. 15. Memoranda. The court may require the parties and the public prosecutor to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. Sec. 16. Decision. (a) The court shall deny the petition on any of the following grounds: (1) The aggrieved party had condoned the offense or act complained of or has consented to the commission of the offense or act complained of; (2) There is connivance in the commission of the offense or act constituting the ground for legal separation; (3) Both parties have given ground for legal separation; (4) There is collusion between the parties to obtain the decree of legal separation; or (5) The action is barred by prescription. (b) If the court renders a decision granting the petition, it shall declare therein that the Decree of Legal Separation shall be issued by the court only after full compliance with liquidation under the Family Code. However, in the absence of any property of the parties, the court shall forthwith issue a Decree of Legal Separation which shall be registered in the Civil Registry where the marriage was recorded
Secs. 15-16
85
and in the Civil Registry where the Family Court granting the legal separation is located. (c) The decision shall likewise declare that: (1) The spouses are entitled to live separately from each other but the marriage bond is not severed; (2) The obligation of mutual support between the spouses ceases; and (3) The offending spouse is disqualified from inheriting from the innocent spouse by intestate succession, and provisions in favor of the offending spouse made in the will of the innocent spouse are revoked by operation of law. (d) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall also be published once in a newspaper of general circulation.
CONDONATION. Condonation is the act of forgiving the offense after its commission. However, it has been held that condonation implies a condition of future good behavior by the offending spouse. Condonation of the violation of the marital duties and obligations being conditional on the future good conduct of the offending spouse, subsequent offense on his or her part revokes or nullifies the condonation and revives the original offense.1 Also, where condonation of adultery has been obtained by a false pretense of repentance, the original offense may be revived, although there is only a presumption, and no strict proof, of a subsequent matrimonial offense.2 In Ocampo vs. Florenciano,3 the Supreme Court held that the failure of the husband to look actively for his adulterous wife after
1 Ann. Cas. 1918A 657 note; Brown vs. Brown, 103 Kan. 53, 172 Pac 1005, LRA 1918F 1033. 2 Jordan vs. Jordan, 6 Eng. Rul. Cas. 581. 3 107 Phil. 35.
86
Secs. 15-16
she left the conjugal home does not constitute condonation or consent of the wifes adulterous acts. The Supreme Court said that:
It must be remembered that she left him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers was the obligation to return.
Also, it has been held that the act of giving money to an erring wife and the fact that no action was taken against her before the courts of justice are sufficient to establish forgiveness amounting to condonation, for condonation is the forgiveness of one of the married parties of an offense which he knows the other has committed against the other and, at any rate, pardon or condonation does not require sexual intercourse and it may be express or implied.4 CONSENT. There is consent when either of the spouses agreed to or did not object, despite full knowledge, to the act giving rise to a ground for legal separation, before such act was in fact committed. Hence, an agreement between the parties that they agree to live separately from each other, and that they will not object to the others act of sexual infidelity, adultery or, concubinage has been declared by the Supreme Court as void but, though void, is nevertheless, an expression of their clear consent to the commission of the sexual infidelity.5 Consent may be deduced also from the acts of the spouses. Thus, in People vs. Sensano,6 where the husband, knowing that his wife resumed living with her paramour, did nothing to interfere with their relations or to assert his rights as husband and, instead, left for the Territory of Hawaii where he remained for seven years totally abandoning his wife and child, the Supreme Court ruled that the acts of the husband constituted consent to the adulterous acts of the wife and hence, he cannot file a case for adultery against the wife. CONNIVANCE. In Greene vs. Greene,7 it was held that:
connivance, or procurement, denotes direction, influence, personal exertion, or other action with knowledge and belief that
Almacen vs. Baltazar, 103 Phil. 1147. People vs. Schneckenburger, 73 Phil. 413; People vs. Guinucud, 58 Phil. 621. 6 58 Phil. 73. 7 Court of Appeals of North Carolina, 1972, 15 N.C. App. 314, 190 S.E.d 258.
4 5
Secs. 15-16
87
such action would produce certain results and which results are produced.8 The basis of the defense of connivance is the maxim volenti non fit injuria, or that one is not legally injured if he has consented to the act complained of or was willing that it should occur. It is also said that the basis of the defense of connivance is the doctrine of unclean hands.9
In this regard, it has also been held that where a husband employed agents to induce, persuade and coerce his wife into participating in illicit sexual activities, this act of the husband can be considered as active connivance. When a husband lays a lure for his wife, either acting in person or through an agent, his will necessarily concurs in her act.10 EQUAL GUILT. The reason for this rule lies in the equitable maxim that he who comes into equity must come with clean hands.11 Also, it is also a rule that, when two persons acted in bad faith, they should be considered as having acted in good faith. They are in pari delicto. Hence, the plaintiff-spouse cannot invoke the guilt of the other if such plaintiff-spouse is guilty of giving grounds for legal separation. COLLUSION. Although collusion and connivance are closely related, it has been held that the distinction between them is that collusion is a corrupt agreement, while connivance is a corrupt consenting. While the courts have not always been careful to distinguish between connivance and collusion, it seems to be well-settled that to constitute collusion there must be an agreement between husband and wife looking to the procuring of a divorce.12 In Ocampo vs. Florenciano,13 the Supreme Court expounded on the concept of collusion, thus:
The mere circumstance that defendant told the Fiscal that she liked also to be legally separated from her husband, is not obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes precautions against
Cohen, Divorce and Alimony in North Carolina, 59, IV, p. 98. 24 Am. Jur. 2d, Divorce and Separation, 193, p. 352. 10 Witherspoon vs. Witherspoon, 108 Pa. Super. 309, 64 A. 842, 84e. 11 Ann. Cas. 1917A 178 note. 12 2 ALR 701 note. 13 107 Phil. 35.
8 9
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Secs. 15-16
collusion, which implies more than consent or lack of opposition to the agreement. Needless to say, when the court is informed that defendant equally desires the separation and admitted the commission of the offense, it should be doubly careful lest the collusion exists. xxx Collusion in divorce or legal separation means the agreement * * * between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. It is a ground for denying divorce.14 In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor. Here the offense of adultery had really taken place, according to the evidence. The defendant could not have falsely told the adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the Fiscal to prosecute. She could not have practiced deception at such a personal risk. In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it.15 And proof that the defendant desires the divorce and makes no defense, is not by itself collusion.16
CESSATION OF MUTUAL SUPPORT. Section 16(c)(2) provides that one of the effects of a legal separation decree is that the obligation of mutual support between the spouses ceases. This rule was lifted from Article 198 of the Family Code. Hence, it should be interpreted together with the substantive law on the matter which is Article 198 of the Family Code. This article provides that, in a legal separation, nullity of marriage, and annulment of marriage cases,
14 Griffith vs. Griffith, 69 N.J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590. 15 Williams vs. Williams, [N.Y.] 40 N.E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N.Y. Suppl. 231; Conyers vs. Conyers, 224 S.W. [2d] 688. 16 Pohlman vs. Pohlman, [N.J.] 46 Atl. Rep. 658.
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once the judgment becomes final, the obligation of mutual support between the spouses ceases. Article 198 continues by qualifying the cessation of mutual support in legal separation by providing the following: However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent spouse, specifying the terms of such order. It is clear therefore that the cessation of mutual support between the spouses in legal separation may include a situation where, regardless of who as between them is the guilty party, both husband and wife shall cease to support each other, and a situation where the court can decree that the guilty spouse is not anymore entitled to be supported by the innocent spouse, but the innocent spouse shall still have the right to be supported by the guilty spouse. In the latter situation, the obligation to support is also not anymore mutual or reciprocal considering that it has become a one way affair where only the guilty spouse in an existing marriage is obliged to give support. DESIGNATION OF PARENT TO EXERCISE PARENTAL AUTHORITY. Article 213 of the Family Code also provides that in case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. This designation however does not necessarily mean that the other parent who has not been designated loses his or her parental authority. Parental authority can only be lost on causes provided by law17 such as when the child reaches the age of majority and/or upon court order. In Cang vs. Court of Appeals,18 the mother was designated to be the one who will exercise parental authority. Hence, because of the designation, the mother shall have the right to the childrens services and earnings, and the right to direct their activities and make decisions regarding their care and control, education, health and religion. This designation however does not allow the mother to have the children adopted without the consent of the father because, without anything in the legal separation decree expressly terminating the parental authority of the father, such parental authority still subsists and therefore his consent must still be obtained. Sec. 17. Appeal.
(a) Pre-condition. No appeal from the decision shall be allowed unless the appellant has filed

17 18
Cang vs. Court of Appeals, 296 SCRA 128. Ibid.
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Secs. 18-20
a motion for reconsideration or new trial within fifteen days from notice of judgment. (b) Notice of Appeal. An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal upon the adverse parties. Sec. 18. Liquidation, partition and distribution, custody, and support of minor children. Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody and support of common children, under the Family Code unless such matters had been adjudicated in previous judicial proceedings. Sec. 19. Issuance of Decree of Legal Separation. (a) The court shall issue the Decree of Legal Separation after: (1) registration of the entry of judgment granting the petition for legal separation in the Civil Registry where the marriage was celebrated and in the Civil Registry where the Family Court is located; and (2) registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located. (b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition. Sec. 20. Registration and publication of the Decree of Legal Separation; decree as best evidence.
Secs. 17-21
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(a) Registration of decree. The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, in the Civil Registry of the place where the Family Court situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree. (b) Publication of decree. In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation. (c) Best evidence. The registered Decree shall be the best evidence to prove the legal separation of the parties and shall serve as notice to third persons concerning the properties of petitioner and respondent. Sec. 21. Effect of death of a party; duty of the Family Court or Appellate Court. (a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated without prejudice to the settlement of estate in proper proceedings in the regular courts. (b) If the party dies after the entry of judgment, the same shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts. DEATH TERMINATES LEGAL SEPARATION CASE. In Lapuz vs. Eufemio,1 the questions posed for resolution were: Does the death of the plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights? The pertinent ruling of the Supreme Court, which is applicable under the provisions on legal separation or relative divorce in the Family Code, is as follows, to wit:
An action for legal separation which involves nothing more than the bed and board separation of the spouses (there

1
43 SCRA 177.
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Secs. 17-21
being no absolute divorce in this jurisdiction) is purely personal. x x x Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis moritur cum persona. ... When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during the course of the suit x x x. The action is absolutely dead (Cass., July 27, 1871, D. 71.1.81; Cass req., May 8, 1933, D.H. 1933, 332). Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. x x x The same rule is true of cases of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208). A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they cannot survive the death of the plaintiff if it occurs prior to the decree. [The decision then enumerates the effects of a legal separation decree under Article 106 of the Civil Code which has been essentially adopted by Article 63 of the Family] x x x. From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the terms of the Civil Code article, are vested exclusively in the person of the spouses; and by their nature and intent, such claim and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a
Sec. 22
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claim that is not thereby extinguished after a party dies, under Section 17, Rule 3 of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party. Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted... The same result flows from a consideration of the enumeration of the actions that survive for or against administrator in Section 1, Rule 87, of the Revised Rules of Court: Section 1. Actions which may and which may not be brought against executor or administrator. No action upon a claim for the recovery of money or debt or interest thereon, shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover for an injury to person or property, real or personal, may be commenced against him. Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration. A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of a decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming; death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn.
Sec. 22. Petition for revocation of donations. (a) Within five (5) years from the date the decision granting the petition for legal separation has become final, the innocent spouse may file a petition under oath in the same proceeding for legal separation to revoke the donations in favor of the offending spouse.
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(b) The revocation of the donations shall be recorded in the Register of Deeds in the places where the properties are located. (c) Alienations, liens, and encumbrances registered in good faith before the recording of the petition for revocation in the registries of property shall be respected. (d) After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the designation of the offending spouse as a beneficiary in any insurance policy even if such designation be stipulated as irrevocable. The revocation or change shall take effect upon written notification thereof to the insurer. PETITION FOR REVOCATION. The rules provide that the verified petition for revocation may be filed in the same proceeding for legal separation. However, the substantive law on the matter, particularly the second paragraph of Article 64 of the Family Code, provides that revocation must be by way of an action.1 A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.2 Substantive law therefore clearly mandates that revocation must be made in a court proceeding precisely filed for that purpose. Action contemplates a direct civil proceeding for the purpose of precisely obtaining a decision which is the revocatory act setting aside the donation. Substantive law on revocation therefore is more coherent and juridically sound. The right to revoke, according to Article 64 of the Family Code, arises only after the finality of the decree of legal separation. The innocent party therefore has five (5) years from that time to file an action for revocation. Prior to the finality of the decision or the decree of legal separation, the innocent party does not even have any right to revoke the donation on the basis of the decree of legal separation. How therefore can an action be commenced by way of a petition within a proceeding initiated by a petition for legal separation the decision of which has already become final? Definitely, this new petition
1 The second paragraph of Article 64 provides that: The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation has become final. 2 Rule 1, Section 3(a) of the Revised Rules of Court of the Philippines.
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for revocation cannot be made by way of an amended or supplemental petition to the petition for legal separation because the decision on the latter has already become final and executory. It cannot likewise be filed simultaneously with the petition for legal separation as an independent and second cause of action therein simply because the cause of action to revoke the donation arises only after finality of the decree of legal separation. In short, there cannot be any existing right to be enforced by way of a civil action prior to the finality of the decree, and therefore there can be no enforceable right to revoke the donation at the time the petition for legal separation is filed. The procedure therefore of allowing the filing of a petition to revoke the donation in the same proceeding for legal separation is indeed very novel. It must nevertheless be emphasized that filing of the petition to revoke the donation in the same proceeding for legal separation is merely directory as clearly evidenced by the use of the word may in the rules. Hence, the innocent party can still file the action not in the same proceeding for legal separation but in an entirely independent action. It is suggested that the filing of an independent action is the better procedure to follow. If third persons are already involved with respect to the revocation of a donation, the petition for revocation must not be made in the same proceeding for legal separation as these third persons are not parties to that same proceeding. REVOCATION OR CHANGE OF BENEFICIARY. Section 22(d) provides that the revocation or change of the beneficiary shall take effect upon written notification thereof to the insurer. This is quite different from substantive law, particularly Article 64 of the Family Code, which provides that the revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. Thus, while the rules refer to notication to the insurer, substantive law refers to notification to the insured. The discrepancy clearly is remarkable and has obviously different consequences. Which then will prevail? The effects of a contract and of an act affecting a contract must be governed by substantive law and not by procedural law. Hence, it would appear that the provision in the Family Code must prevail. The revocation must take effect upon notification to the insured. However, making the revocation take effect upon written notification to the insurer as provided by the rules is better than notification to the insured. The deliberations of the Civil Code and
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Secs. 17-21
Family Law committees, which drafted the Family Code, on Article 64 of the Family Code from its original wording up to the finalized version are very enlightening. The discussions starting from the original text up to the final version are as follows, to wit:
The innocent spouse, after judgment of legal separation has been granted, may revoke donations or any insurance made by him or by her to the offending spouse even if the latters designation as a beneficiary is irrevocable. The revocation of the donation shall be recorded in the places where the properties are located. Alienations and mortgages made before the notation of the complaint for revocation in the Registries of Property shall be valid. In case of insurance, notice of the revocation of the beneficiary clause shall be given to the insurer. The right to revoke under this Article prescribes after five years. Justice Puno suggested that the first sentence of the first paragraph be modified to read as follows: The innocent spouse, after final judgment of legal separation has been rendered, may revoke donations or any insurance policy . . . Justice Caguioa objected to the phrase insurance policy since what is being revoked is the insurance beneficiary. Prof. Bautista and Prof. Baviera proposed the phrase any insurance benefit. On the other hand, Justice Caguioa suggested the following version: . . . may revoke donations or the designation of the beneficiary in the insurance . . . Justice Puno reworded the first sentence as follows: The innocent spouse, after final judgment of legal separation has been rendered, may revoke donations made by him or by her in favor of the offending spouse and any designation of the latter as insurance beneficiary even if such designation is irrevocable. Justice Caguioa proposed the following version of the above sentence: Once the judgment of legal separation has been rendered, the innocent spouse may revoke the dona-
Sec. 22
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tions made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance, even if the designation is irrevocable. Judge Diy suggest the opening clause be modified to read: After the finality of the decree of legal separation, . . . The Committee approved the above.
Prof. Bautista proposed that the phrase as well as the designation of the latter as beneficiary be substituted with as well as his or her designation as beneficiary. The other members, nevertheless, preferred the original wording. The Committee approved Justice Puno a suggestion that the word policy be inserted between insurance and even and that the designation be substituted with such designation. Dean Gupit proposed that the provision be simplified to . . . as well as any irrevocable designation . . . Justice Reyes, however, suggested that the clause even if such designation is irrevocable be clarified to read even if such designation be stipulated as irrevocable. Prof. Bautista commented that the word designation is used twice. The other members, however, approved such repetition for clarity. Thus, the first sentence of Article 64 shall read: After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The Committee approved the second sentence as is.
On the third sentence of the first paragraph of Article 64, Justice Reyes suggested that mortgages be substituted with encumbrances. Justice Puno remarked that they should also include liens. The Committee agreed to say Alienations, liens and encumbrances. Justice Reyes raised the question: What is going to be noted or recorded: the revocation or the complaint for revocation? Justice Puno added that the judgment must also be recorded because
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Sec. 22
the judgment is covered by the general law on registration. The judgment will be recorded. Justice Puno suggested that, for clarity, the idea in the provision is to give notice of the complaint for revocation, for which reason the recording of the said complaint would suffice. On another point, Justice Puno suggested that in good faith the inserted between made and before in the third sentence of the first paragraph of Article 64. Prof. Baviera proposed that they be recorded in good faith. Justice Puno, however, suggested the following: Alienations, liens and encumbrances made before the recording in good faith of the complaint for revocation . . . Justice Reyes commented that the good faith will only refer to the recording. He added that the idea is that the alienations, liens and encumbrances must be recorded in good faith. Justice Puno opined that they are really talking of two recordings in the provision: the recording of the alienations, liens and encumbrances and the recording of the complaint for revocation, both of which should be in good faith. He then invited attention to the present Article 1544 of the Civil Code, which reads as follows: If the same thing should have been sold to different vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it should be movable property. Should it be immovable property, the ownership shall belong to the person acquiring it who in good faith first recorded it in the Registry of Property. Should there be no inscription, the ownership shall pertain to the person who in good faith was first in the possession; and, in the absence thereof, to the person who presents the oldest title, provided there is good faith. After further deliberation, Justice Puno suggested that, in order to simplify the provision, the third sentence of the first paragraph of Article 64 should be deleted since it is covered by the general rules on registration. Justice Caguioa, however, opined that it would be better if they will provide for it in Article 64. Justice Reyes modified the third sentence as follows:
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Alienations, liens and encumbrances recorded in good faith before the notation of the complaint for revocation in the Registries of Property shall be valid. Prof. Baviera suggested that shall be valid be substituted with shall be respected, which the Committee approved. Justice Caguioa proposed that recorded be substituted with registered and notation with recording. The Committee approved the proposal. Thus, the third sentence shall read: Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the Registries. The Property shall be respected. On the last sentence of the first paragraph of Article 64, Judge Diy raised the question: Why do they have to say that notice will be given to the insurer when they cannot really revoke the beneficiary clause without notifying the insurer. In reply, Justice Caguioa suggested that the last sentence be eliminated. Dean Gupit added that it is already covered by the insurance law. After a brief discussion, Justice Caguioa proposed that the following sentence be added to the first paragraph: In case of insurance, the change of beneficiary shall be governed by the insurance law. Justice Puno posed the question: It is clear that in the case of revocation of the designation of the beneficiary, if one does not notify the insurer, it remains. What happens if one notifies the beneficiary without notifying the insurer? The other members replied that it also remains. Justice Puno suggested that this point be clarified in the provision. He then proposed the following additional sentences, as slightly modified by Justice Caguioa and Prof. Baviera: The revocation or change in the designation of the insurance beneficiary shall take effect upon notice thereof to the insurer. Prof. Bautista suggested that they say written notice. Prof. Baviera modified it to read upon receipt of written notice. Justice Puno, however, proposed that they say upon written notification. The Committee approved the proposal. Thus, the last sentence of the first paragraph of Article 64 shall read: The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insurer.
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Sec. 22
On the last paragraph, Judge Diy inquired if it is clear as to when the five-year period should be counted. Justice Puno suggested that the phrase after the finality of the decree be added at the end and that the phrase the donation be inserted between revoke and under for clarity since the insurance may be changed anytime. The Committee approved the second suggestion. On the first one, Justice Caguioa suggested that they say from the time the decree of legal separation becomes final, which the Committee approved. The Committee likewise approved Justice Caguioas proposal that right be substituted with action. Prof. Baviera suggested that the phrase prescribes after five years should be substituted with must be brought within five years. The Committee approved the suggestion. Thus, the last paragraph shall read:
The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation has become final. Hence, the proposed Article shall read:
AFTER THE FINALITY OF THE DECREE OF LEGAL SEPARATION, THE INNOCENT SPOUSE MAY REVOKE THE DONATIONS MADE BY HIM OR BY HER IN FAVOR OF THE OFFENDING SPOUSE, AS WELL AS THE DESIGNATION OF THE LATTER AS BENEFICIARY IN ANY INSURANCE POLICY, EVEN IF SUCH DESIGNATION BE STIPULATED AS IRREVOCABLE. THE REVOCATION OF THE DONATIONS SHALL BE RECORDED IN THE REGISTRIES OF PROPERTY IN THE PLACES WHERE THE PROPERTIES ARE LOCATED. ALIENATIONS, LIENS AND ENCUMBRANCES REGISTERED IN GOOD FAITH BEFORE THE RECORDING OF THE COMPLAINT FOR REVOCATION IN THE REGISTRIES OF PROPERTY SHALL BE RESPECTED. THE REVOCATION OF OR CHANGE IN THE DESIGNATION OF THE INSURANCE BENEFICIARY SHALL TAKE EFFECT UPON WRITTEN NOTIFICATION THEREOF TO THE INSURER. THE ACTION TO REVOKE THE DONATION UNDER THIS ARTICLE MUST BE BROUGHT WITHIN FIVE YEARS FROM THE TIME THE DECREE OF LEGAL SEPARATION HAS BECOME FINAL.3
3 Minutes of the 158th joint meeting of the Civil Code and Family Law Committees held on October 11, 1986, pages 15-20.
Sec. 23
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From the deliberation of the code commission, the revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insurer and not to the insured as provided for in the law itself. There is a discrepancy therefore between the final version of the provision as deliberated and the one signed by the President into law. The former states notification to the insurer and the latter states notification to the insured. Notification to the insurer is indeed more practical because it is the insurer who will be liable for the insurance. Hence, it is important to notify the insurer so that there will be no way for the insured or the beneficiary to get the proceeds after the policy has been revoked. While there is nothing wrong in making the revocation effective upon notification to the insured as provided by the law and not the insurer, this procedure is very impractical and prejudicial to the insurer. It may happen that, after the revocation of the insurance by notification to the insured as provided by the law, the insurer, who has no knowledge of the revocation, might, by its mistake, or by its ignorance of the revocation or by the fraudulent act of the insured, pay the proceeds of the insurance to the former beneficiary. Inconvenience therefore will result on the part of the insurer in seeking the return of the proceeds unduly given. Hence, clearly there has been a mistake in the printing of the final version signed as law by the President. The correct procedure as deliberated should have been notification to the insurer, which is now provided under the new Rules on Legal Separation, and not the insured. Be that as it may, since the law states notification thereof to the insured and not the insurer, the law must be applied as written up to such time the same is effectively amended. There might be some inconvenience to the insurer but the purpose of revocation can likewise be achieved. To make sure that the designation of the beneficiary is legally revoked, written notification must be made both to the insurer and the insured following both the substantive law and procedural law. Sec. 23. Decree of Reconciliation. (a) If the spouses had reconciled, a joint manifestation under oath, duly signed by the spouses, may be filed in the same proceeding for legal separation. (b) If the reconciliation occurred while the proceeding for legal separation is pending, the court
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Sec. 24
shall immediately issue an order terminating the proceeding. (c) If the reconciliation occurred after the rendition of the judgment granting the petition for legal separation but before the issuance of the Decree, the spouses shall express in their manifestation whether or not they agree to revive the former regime of their property relations or choose a new regime. The court shall immediately issue a Decree of Reconciliation declaring that the legal separation proceeding is set aside and specifying the regime of property relations under which the spouse shall be covered. (d) If the spouses reconciled after the issuance of the Decree, the court, upon proper motion, shall issue a decree of reconciliation declaring therein that the Decree is set aside but the separation of property and any forfeiture of the share of the guilty spouse already effected subsists, unless the spouses have agreed to revive their former regime of property relations or adopt a new regime. (e) In case of paragraphs (b), (c) and (d), if the reconciled spouses choose to adopt a regime of property relations different from that which they had prior to the filing of the petition for legal separation, the spouses shall comply with Section 24 hereof. (f) The decree of reconciliation shall be recorded in the Civil Registries where the marriage and the Decree had been registered. Sec. 24. Revival of property regime or adoption of another. (a) In case of reconciliation under Section 23, paragraph (c) above, the parties shall file a verified motion for revival of regime of property relations or the adoption of another regime of property relations in the same proceeding for legal separation attaching the said motion their agreement for the approval of the court.
Secs. 23-24
103
(b) The agreement which shall be verified shall specify the following: (1) The properties to be contributed to the restored or new regime; (2) Those to be retained as separate properties of each spouse; and (3) The names of all their known creditors, their addresses, and the amounts owing to each. (c) The creditors shall be furnished with copies of the motion and the agreement. (d) The court shall require the spouses to cause the publication of their verified motion for two consecutive weeks in a newspaper of general circulation. (e) After due hearing, and the court decides to grant the motion, it shall issue an order directing the parties to record the order in the proper registries of property within thirty days from receipt of a copy of the order and submit proof of compliance within the same period. REVIVAL AND ADOPTION OF PROPERTY REGIME. Significantly the new rules promulgated by the Supreme Court for legal separation cases, Supreme Court En Banc Resolution A.M. No. 0211-12 effective on March 15, 2003, allow in Sections 23(c), (e) and 24 thereof not only the revival of the previous property regime but also they provide a new rule allowing the adoption of another regime of property relations different from that which they had prior to the filing of the petition for legal separation. This is a new rule which is not contained in Articles 66 and 67 of the Family Code. Questions thus arise if the new rule goes beyond the substantive law provided in Articles 66 and 67 of the Family Code which clearly refer only to revival of the previous property regime. The following diverging analyses may be considered: 1) The first point of view posits that Articles 66 and 67 of the Family Code are the substantive-law-provisions dealing with the property regime upon reconciliation. These substantive provisions refer only to the revival of the former
104
Secs. 23-24
property regime. It is restrictive and therefore no other property regime can be judicially applied for. The new rule allowing the adoption of a different property regime is an undue extension of substantive law and therefore has no legal basis. The adoption of a new property regime is not a revival and hence it should not be allowed. In case of conflict, the substantive law, which is the Family Code, should prevail. Moreover, if the framers of the Family Code intended to allow the adoption of a new property regime, they could have easily inserted a provision in the Family Code to allow it and yet they did not do so. The clear inference of this omission is that the adoption of another property regime is not allowed. This point of view is fortified by Article 88 in relation to the absolute community property regime and Article 107 in relation to the conjugal partnership property regime in the Family Code which provide the substantive rule that any stipulation, express or implied, for the commencement of either the absolute community of property regime or the conjugal partnership property regime at any other time other than at the precise moment that the marriage is celebrated shall be void. This point of view is likewise supported by the fact that while the Family Code provides in Article 67 the statutory basis for the manner by which revival can be made, the same Family Code does not provide for the procedure for the adoption of any other regime, highlighting therefore the fact that only revival is allowed. 2) A second point of view is that, though Article 66(2) of the Family Code refers to revival only, it does not expressly provide that a different property regime cannot be applied for by the parties. Article 66 is therefore not restrictive. These provisions therefore must be construed to allow what they do not expressly disallow. The new rule allowing the adoption of a different property regime is therefore acceptable. However, considering the marriage bond is still intact and has never been cut, this new rule cannot include allowing a change from the absolute community to the conjugal partnership and vice versa considering that Article 88 in relation to the absolute community property regime and Article 107 in relation to the conjugal part-
Secs. 23-24
105
nership property regime in the Family Code provide the substantive rule that any stipulation, express or implied, for the commencement of either the absolute community of property regime or the conjugal partnership property regime at any other time other than at the precise moment that the marriage is celebrated shall be void. The new rule can allow only a change to a different property regime other than the absolute community or the conjugal partnership. For example, it can allow a different kind of regime devised by the parties themselves. The fact that, unlike Article 67 on revival, there is nothing in the Family Code providing for the procedure on how the adoption of a new regime can be made in court allows the Supreme Court to fill in these procedural gaps. 3) Still a third point of view is that, provided there is court approval, the parties can request for any other different regime. Significantly, during the meeting of the Committee on the Revision of Rules, some members opined that the adoption of a new regime can be made provided that the public and the creditors of the spouses are sufficiently protected and for as long as nobody is prejudiced and provided the adoption of the new regime is approved by the court.1 Apparently, this opinion was followed as the adoption of a new regime is reflected in the new rule. As pointed out in the previous discussion, Articles 88 and 107 of the Family Code, in so far as the absolute community and the conjugal partnership property are concerned, were not even taken into consideration; thereby, making the rules, to the extent that they involve the absolute community or the conjugal partnership, legally questionable.
It would seem that the better rule is the Second Point of View as this would harmonize the rule and the substantive law. Another situation that can arise is when the spouses, prior to the marriage ceremony entered into a marriage settlement providing for a particular property regime that shall govern their marital relations. Let us suppose that the agreed property regime is the conjugal partnership property. Article 76 of the Family Code provides that
1 Minutes of the Meeting of the Committee on Revision of the Rules of Court, July 24, 2001, Page 3.
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Sec. 25
modification of the marriage settlement to be valid must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. Hence, for the couple to be able to modify their property regime during the marriage it must fall only in the cases provided for under Articles 66, 67, 128, 135 and 136. For purposes of legal separation, the pertinent provisions are only Articles 66 and 67. In these latter articles, the spouses are allowed either to maintain the separation of property as a result of the liquidation after the decree for legal separation, OR to revive their former property regime. Articles 66 and 67 do not expressly provide for the adoption of a new property regime. Relevantly, Articles 88 and 107 also expressly provide that the absolute community or the conjugal partnership cannot take place at any other time other than at the precise moment of the celebration of marriage. Any stipulation to that effect is void. The court therefore has no authority to approve a stipulation of the parties which is void from the beginning. Hence, can the court approve the adoption of another property regime other than the absolute community of property or the conjugal partnership of gains? If we follow the First Point of View explained above, it cannot be done. If we follow the Second Point of view as explained previously, it can be done. If we follow the Third Point of view, it can be done. It is suggested however that the Second Point of view is the better rule. Sec. 25. Effectivity. This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003.
107
RULE ON PROVISIONAL ORDERS

[A.M. No. 02-11-12-SC]
Section 1. When issued. Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation, and at any time during the proceeding, the court, motu proprio or upon application under oath of any of the parties, guardian or designated custodian, may issue provisional orders and protection orders with or without a hearing. These orders may be enforced immediately, with or without a bond, and for such period and under such terms and conditions as the court may deem necessary. Sec. 2. Spousal Support. In determining support for the spouses, the court may be guided by the following rules: (a) In the absence of adequate provisions in a written agreement between the spouses, the spouses may be supported from the properties of the absolute community or the conjugal partnership. (b) The court may award support to either spouse in such amount and for such period of time as the court may deem just and reasonable based on their standard of living during the marriage. (c) The court may likewise consider the following factors: (1) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; (2) the time necessary to acquire sufficient education and training to enable the spouse
107
108
Secs. 1-2
seeking support to find appropriate employment, and that spouses future earning capacity; (3) the duration of the marriage; (4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to the marriage, including services rendered in homemaking, child care, education, and career building of the other spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the spouses; (9) the ability of the supporting spouse to give support, taking into account that spouses earning capacity, earned and unearned income, assets, and standard of living; and (10) any other factor the court may deem just and equitable. (d) The Family Court may direct the deduction of the provisional support from the salary of the spouse. SOURCE OF SUPPORT IN LEGAL SEPARATION AND ANNULMENT OF MARRIAGE CASES. Under the new rules, the source of support must be pursuant to any written agreement between the parties. In the absence of a written agreement, the spouses may be supported from the properties of the absolute community of property or the conjugal partnership of gains. It must be importantly emphasized however that this must be applicable only if the case is one of legal separation or of annulment of marriage. In legal separation, the bond of marriage is not severed. In a voidable or annullable marriage, the marriage is valid up to the time that it is annulled. Hence, in both legal separation case and annulment of marriage case, an absolute community of property or conjugal partnership of gains can legally exist even if the parties are separated while the case is pending. For the Family Court therefore to direct deduction of the provisional support from the salary of the spouse is justifiable considering that the salary of the spouse forms part of the community property or conjugal property. SOURCE OF SUPPORT IN VOID MARRIAGES. It is different in case the marriage is void. A void marriage cannot be the source
Secs. 1-2
RULE ON PROVISIONAL ORDERS [A.M. No. 02-11-12-SC]
109
of rights1 considering that it is invalid from the beginning and is considered to have never taken place.2 Hence there is no legal or juridical basis for the parties in a void marriage to support each other. One asserting the voidness of a marriage therefore cannot assert at the same time that he or she is entitled to be supported by the other party. These two positions are clearly inconsistent with each other. Also, in a void marriage, there is no absolute community of property. Neither is there any conjugal partnership of gains. Hence, since Section 2(a) narrowly refers to an absolute community of property or the conjugal partnership of gains which applies only to valid marriages, Section 2(a) therefore cannot legally apply to void marriages. However the Family Code provides that, in void marriages, a co-ownership exists either under Article 147 or 148 of the Family Code. The co-ownership in Article 147 of the Family Code applies in cases where the parties in a void marriage live exclusively with each other as husband and wife. It is only the properties acquired while they lived together which shall be owned by them in equal shares, such that they cannot encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of the cohabitation. It is very clear therefore that properties acquired by each party prior to and after the cohabitation are not included in the co-ownership and are therefore separately owned. Legally, the fruits of the separate properties of each of the parties are not even included in the co-ownership.3 The co-ownership in Article 148 of the Family Code is much stricter in the sense that the co-owned properties are only those which are the result of their joint actual contribution during their cohabitation. If support is to be sought therefore in a void marriage during the pendency of a declaration of nullity case, the party-spouse asserting the voidness of the marriage can only seek this support from the co-owned properties acquired while he or she lived together with the other party and not from the properties acquired by the other party prior to or after the cohabitation. Support cannot be claimed from the separate property of the other spouse as the one claiming it precisely
Ninal vs. Bayadog, 328 SCRA 122. Ninal vs. Bayadog, 328 SCRA 122. 3 Valdez vs. RTC, 260 SCRA 221.
1 2
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Secs. 1-2
is estopped from doing so considering that he or she asserts that the marriage is void. It cannot even be obtained from the fruits of the separate properties as said fruits do not form part of the co-ownership.4 In the co-ownership under Article 147, the co-owned properties will include salary acquired by any of the parties while they lived together. Salaries acquired before the cohabitation and after the termination of the cohabitation are exclusive property of the party who earned it. The court therefore cannot direct the deduction of salary acquired after cohabitation for the provisional support of the other party who asserts the voidness of the marriage, especially considering that, in a void marriage, there is no juridical and legal basis for one party to support the other party. In the stricter form of co-ownership under Article 148, the salary are not even included in the co-ownership even if acquired during cohabitation. In case, during the pendency of a nullity case, the court grants provisional support to a particular party sourced from the salary acquired before or after (not during) cohabitation by the other party or from any property acquired before or after (not during) cohabitation by the other party, the order for such provisional support, which in effect is support pendente lite, must include a directive that, in the event that the marriage is declared void, all the amounts given representing the provisional support, should be reimbursed in favor of the party who gave it. The basis for this directive is because a void marriage cannot be the source of rights.5 In effect, the recipient after all did not justly and legally have any right to be supported by the other party. This is pursuant to Section 7, Rule 61 of the 1997 Rules of Civil Procedure. This reimbursement is also in consonance with Article 22 of the Civil Code on unjust enrichment providing that every person who through an act or performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. SUPPORT PENDENTE LITE IN GENERAL. Rule 61 of the 1997 Rules of Civil Procedure provides the manner by which support pendente lite can be obtained, thus:
4 5
Valdez vs. RTC, 260 SCRA 221. Ninal vs. Bayadog, 328 SCRA 122.
Secs. 1-2
111
Section 1. Application. At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application for support pendente lite may be filed by any party stating the grounds for the claim and the financial condition of both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof. Sec. 2. Comment. A copy of the application and all supporting documents shall be served upon the adverse party, who shall have five (5) days to comment thereon unless a different period is fixed by the court upon his motion. The comment shall be verified and shall be accompanied by affidavits, depositions or other authentic documents in support thereof. Sec. 3. Hearing. After the comment is filed, or after the expiration of the period for its filing, the application shall be set for hearing not more than three (3) days thereafter. The facts in issue shall be proved in the same manner as is provided for evidence on motions. Sec. 4. Order. The court shall determine provisionally the pertinent facts, and shall render such order as justice and equity may require, having due regard to the probable outcome of the case, and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant or the resources or means of the adverse party and the terms of payment or mode for providing support. If the application is denied, the principal case shall be tried and decided as early as possible. Sec. 5. Enforcement of order. If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion, issue an order of execution against him or her, without prejudice to his liability for contempt. When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to the applicant may, after due notice and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support. Sec. 6. Support in criminal cases. In criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect thereof has not been
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Secs. 1-2
waived, reserved or instituted prior to its filing, the accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the crime. The application therefor may be filed successively by the offended party, her parents, grandparents or guardian and the State in the corresponding criminal case during its pendency, in accordance with the procedure established under this Rule. Sec. 7. Restitution. When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefor, it shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of actual payment, without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give support. Should the recipient fail to reimburse said amounts, the person who provided the same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give such support.6
PROOF IN SUPPORT PENDENTE LITE. The Supreme Court has held that:
in determining the amount to be awarded as support pendente lite, it is not necessary to go fully into the merits of the case, it being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficient to enable it to justly resolve the application, one way or the other, in view of the merely provisional character of the resolution to be entered. Mere affidavit may satisfy the court to pass upon the application for support pendente lite. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record.7
MATTERS TO BE PROVEN PRELIMINARILY IN SUPPORT PENDENTE LITE. For support pendente lite to be granted, there are basically three (3) matters to be proven. They are: (1) the need of the recipient, (2) the capacity of the giver, and (3) the probable outcome of the case.8 For example, a husband files a case for nullity of marriage based on absence of a marriage license. During the hearing, the wife files an application for support pendente lite. She was able to prove her needs and the earning capacity of the husband. However, after

Mangonon vs. Court of Appeals, 494 SCRA 1. Reyes vs. Ines-Luciano, 88 SCRA 803; Mangonon vs. Court of Appeals, 494 SCRA 1. 8 As to the probable outcome of the case see Section 4, Rule 61 of the Revised Rules of Court.
6 7
Secs. 1-2
113
the husband shows proof that there is no marriage license, she was not able to adduce proof even on a prima facie level to show that there is a marriage license. Hence, the probable outcome of the case is that the husband would probably win and the marriage will be declared void. In this case, support pendente lite should be denied. In such a case, the probable outcome suggesting the marriage is void does not justify support for the wife because, if the marriage is indeed declared void, it means that, from the time of the marriage ceremony, there is no juridical relationship between the husband and the wife to justify the giving of support considering that the marriage is void from the beginning. If however the wife proves, on a preliminary level, that indeed there is an authentic marriage license, then the probable outcome of the case would be denial of the petition for nullity, which, in turn, would mean that the juridical relationship of husband and wife would be maintained warranting the support pendente lite. In Lerma vs. Court of Appeals,9 where a spouse, who was convicted of adultery, was the one who filed a case against her husband for legal separation and, during the pendency of the suit, invoked the provision of Article 292 of the Civil Code which is now Article 198 of the Family Code and where the other spouse contended that such adulterous act of the spouse is a defense to successfully resist giving support pendente lite, the Supreme Court observed and ruled:
It is suggested that while adultery may be a defense in an action for personal support, that is, support of the wife by the husband from his own funds, it is not a defense when the support is to be taken from the conjugal partnership property. We do not see that the distinction is material in this case. In the first place Article 292 is not in itself the source of the legal right to receive support. It merely states that the support, not only of the spouses but also of the children, shall be taken from the conjugal property during the pendency of the legal separation proceeding. It does not preclude the loss of such right in certain cases. In the second place, the said article contemplates the pendency of a court action and, inferentially at least, a prima facie showing that the action will prosper. For if the action is shown to be groundless, the mere filing thereof will not necessarily set Article 292 in operation. This is also the sense of Section 5 of Rule 61, supra, which requires, among other things, when support pendente lite is applied for, that the court determine provisionally the probable outcome of the case. x x x

9
61 SCRA 440.
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Sec. 3
In a provisional sense at least, within the meaning of Rule 61 (Section 5), the probable failure of the respondents suit for legal separation can be foreseen since she is not an innocent spouse, having been convicted of adultery by the Court of First Instance. It is true that the judgment of conviction is on appeal in the Court of Appeals, but the same undoubtedly satisfies the standard of provisional showing set by the aforesaid Rule. If legal separation cannot be claimed by the guilty spouse in the first place, the fact that an action for that purpose is filed anyway should not be permitted to be used as a means to obtain support pendente lite, which, without such action, would be denied on the strength of the decisions of this Court recognizing adultery as a good defense. Otherwise as pointed out by the petitioner, all that an erring spouse has to do to circumvent such defense would be to file a suit for legal separation no matter how groundless. The right to separate support or maintenance, even from the conjugal partnership property, presupposes the existence of a justifiable cause for the spouse claiming such right to live separately. This is implicit in Article 104 of the Civil Code [now Article 61 of the Family Code] which states that after the filing of the petition for legal separation the spouses shall be entitled to live separately from each other. A petition in bad faith, such as that filed by one who is himself or herself guilty of an act which constitutes a ground for legal separation at the instance of the other spouse, cannot be considered as within the intendment of the law granting support.
FACTORS. The factors to be considered in giving spousal support are enumerated in Section 2(c). They were largely adopted from the New York State Domestic Relation Law and the California Code.10 The guidelines can also be the bases for the final adjudication on support.11 They are however not exclusive as the court determining the support can look at other considerations that may be special in the particular case. Sec. 3. Child Support. The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership.
10 Rationale of the New Rules as submitted by the Committee on the Revision of Rules to the Supreme Court, November 11, 2002, Page 11. 11 Rationale of the New Rules as submitted by the Committee on the Revision of Rules to the Supreme Court, November 11, 2002, Page 11.
Sec. 4
115
Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the recipient. In determining the amount of provisional support, the court may likewise consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the child; (2) the physical and emotional health of the child and his or her special needs and aptitudes; (3) the standard of living the child has been accustomed to; (4) the non-monetary contributions that the parents will make toward the care and well-being of the child. The Family Court may direct the deduction of the provisional support from the salary of the parent. SUPPORT IN ARREARS. Support in arrears may also be claimed from the person required to give support if it is shown that he or she has failed to provide support in the past.1 Sec. 4. Child Custody. In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child. The court may likewise consider the following factors: (a) the agreement of the parties; (b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent; (c) the childs health, safety, and welfare; (d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; (e) the nature and frequency of contact with both parents; (f) habitual use of alcohol or regulated

1
Mangonon vs. Court of Appeals, 494 SCRA 23.
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Sec. 4
substances; (g) marital misconduct; (h) the most suitable physical, emotional, spiritual, psychological and educational environment; and (i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit. The court may award provisional custody in the following order of preference: (1) to both parents jointly; (2) to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit; (3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; (4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (5) to the childs actual custodian over twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court suitable to provide proper care and guidance for the child. The custodian temporarily designated by the court shall give the court and the parents five (5) days notice of any plan to change the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents. CUSTODY PENDENTE LITE. The inflexible criterion in custody cases is always the paramount interest of the child.1 Everything revolves around this criterion. Hence, the enumeration provided in the second paragraph of Section 4 provides only very good guidelines but does not serve as mandatory benchmarks. The order of preference provided for in the third paragraph is not mandatory but should be directory only. This is so because, again, the inflexible criterion is the paramount interest of the children. Thus even if the children expressly state that they prefer to be with their grandparents, who however are pedophiles and child-molesters, the court can definitely

1
Querubin vs. Querubin, 87 Phil. 125; Chua vs. Cabangbang, 27 SCRA 791.
Sec. 5
117
and totally disregard the preferential rule and place the children in the custody of the person whom it thinks to be the most fit to take care of the children. However, it must be stressed that the preference must be followed if all of those enumerated are fit. Sec. 5. Visitation Rights. Appropriate visitation rights shall be provided to the parent who is not awarded provisional custody unless found unfit or disqualified by the court. VISITATION RIGHTS. While custody of a child may be awarded to a particular parent, this does not deprive the other parent from exercising his or her visitorial rights unless the court, for some compelling reason, deprives him or her of this right. And even if a parent has been legally deprived of his or her visitorial rights, this can be reinstated if it can be shown that the grounds for deprivation have become to harsh or are not anymore present. In the case of Silva vs. Court of Appeals,1 the Supreme Court explained the reason for a parents visitorial rights, thus:
Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their proper upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child. The petition bears upon this concern.
Carlitos E. Silva, a married businessman, and Suzanne T. Gonzales, an unmarried local actress, cohabited without the benefit of marriage. The union saw the birth of two children: Ramon Carlos and Rica Natalia. Not very long after, a rift in their relationship surfaced. It began, according to Silva, when Gonzales decided to resume her acting carrer over his vigorous objections. The assertion was quickly refuted by Gonzales who claimed that she, in fact, had never stopped working throughout their relationship. At any rate, the two eventually parted ways.
275 SCRA 604.
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Sec. 5
The instant controversy was spawned, in February 1986, by the refusal of Gonzales to allow Silva, in apparent contravention of a previous understanding, to have the children in his company on weekends. Silva filed a petition for custodial rights over the children before the Regional Trial Court (RTC), Branch 78, of Quezon City. The petition was opposed by Gonzales who averred that Silva often engaged in gambling and womanizing which she feared could affect the moral and social values of the children. In an order, dated 07 April 1989, the trial court adjudged:
WHEREFORE, premises considered, judgment is rendered directing respondent to allow herein petitioner visitorial rights to his children during Saturdays and/or Sundays, but in no case should he take out the children without the written consent of the mother or respondent herein. No pronouncement as to costs. (Rollo, p. 29) Silva appeared somehow satisfied with the judgment for only Gonzales interposed an appeal from the RTCs order to the Court of Appeals. In the meantime, Gonzales got married to a Dutch national. The newlyweds emigrated to Holland with Ramon Carlos and Rica Natalia. On 23 September 1993, the appellate tribunal ruled in favor of Gonzales, it held: In all questions, regarding the care, custody, education and property of the child, his welfare shall be the paramount consideration not the welfare of the parents (Art. 8, PD 603). Under the predicament and/or status of both petitioner-appellee and respondent-appellant, We find it more wholesome morally and emotionally for the children if we put a stop to the rotation of custody of said children. Allowing these children to stay with their mother on weekdays and then with their father and the latters live-in partner on weekends may not be conducive to a normal up-bringing of children of tender age. There is no telling how this kind of set-up, no matter how temporary and/or remote, would affect the moral and emotional conditions of the minor children. Knowing that they are illegitimate is hard enough, but having to live with it, witnessing their father living with a woman not their mother may have a more damaging effect upon them. Article 3 of PD 603, otherwise known as the Child and Youth Welfare Code, provides in part:
Sec. 5
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Art. 3. Rights of the Child. x x x (1) x x x (2) x x x (3) x x x (4) x x x
(5) Every child has the right to be brought up in an atmosphere of morality and rectitude for the enrichment and the strengthening of his character. (6) x x x (7) x x x
(8) Every child has the right to protection against exploitation, improper influences, hazards and other conditions or circumstances prejudicial to his physical, mental, emotional, social and moral development. x x x
With Articles 3 and 8 of PD No. 603, in mind, We find it to the best interest of the minor children, to deny visitorial and/or temporary custodial rights to the father, even at the expense of hurting said parent. After all, if indeed his love for the children is genuine and more divine than the love for himself, a little self-sacrifice and self-denial may bring more benefit to the children. While petitioner-appellee, as father, may not intentionally prejudice the children by improper influence, what the children may witness and hear while in their fathers house may not be in keeping with the atmosphere of morality and rectitude where they should be brought up. The children concerned are still in their early formative years of life. The molding of the character of the child starts at home. A home with only one parent is more normal than two separate houses (one house where one parent lives and another house where the other parent with another woman/man lives). After all, under Article 176 of the Family Code, illegitimate children are supposed to use the surname of and shall be under the parental authority of their mother. The child is one of the most important assets of the nation. It is thus important we be careful in rearing the children especially so if they are illegitimates, as in this case. WHEREFORE, in view of all the foregoing, judgment is hereby rendered giving due course to the appeal. The Order of the Regional Trial Court of Quezon City dated April 7, 1989 is
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hereby reversed. Petitioner-appellees petition for visitorial rights is hereby denied. SO ORDERED. (Rollo, pp. 22-23)
The issue before us is not really a question of child custody; instead, the case merely concerns the visitation right of a parent over his children which the trial court has adjudged in favor of petitioner by holding that he shall have visitorial rights to his children during Saturdays and/or Sundays, but in no case (could) he take out the children without the written consent of the mother x x x. The visitation right referred to is the right of access of a noncustodial parent to his or her child or children (See BLACKS LAW DICtIONARY, Sixth edition, p. 1572). There is, despite a dearth of specific legal provisions, enough recognition on the inherent and natural right of parents over their children. Article 150 of the Family Code expresses that (f)amily relations include those x x x (2) (b)etween parents and children; x x x. Article 209, in relation to Article 220, of the Code states that it is the natural right and duty of parents and those exercising parental authority to, among other things, keep children in their company and to give them love and affection, advice and counsel, companionship and understanding. The Constitution itself speaks in terms of the natural and primary rights of parents in the rearing of the youth (Art. II, Sec. 12, 1987 Constitution). There is nothing conclusive to indicate that these provisions are meant to solely address themselves to legitimate relationships. Indeed, although in varying degrees, the laws on support and successional rights, by way of examples, clearly go beyond the legitimate relationships as well (Arts. 176, 195, Family Code). Then, too, and most importantly, in the declaration of nullity of marriages, a situation that presupposes a void or inexistent marriage, Article 49 of the Family Code provides for appropriate visitation rights to parents who are not given custody of their children. There is no doubt that in all cases involving a child, his interest and welfare is always the paramount consideration. The Court shares the view of the Solicitor General, who has recommended due course to the petition, that a few hours spent by petitioner with the children, however, could not all be that detrimental to the children. Similarly, what the trial court has observed is not entirely without merit; thus: The allegations of respondent against the character of petitioner, even assuming as true, cannot be taken as sufficient basis to render petitioner an unfit father. The fears expressed by
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respondent to the effect that petitioner shall be able to corrupt and degrade their children once allowed to even temporarily associate with petitioner is but the product of respondents unfounded imagination, for no man, bereft of all moral persuasions and goodness, would ever take the trouble and expense in instituting a legal action for the purpose of seeing his illegitimate children. It can just be imagined the deep sorrows of a father who is deprived of his children of tender ages. (Rollo, p. 29). The Court appreciates the apprehensions of private respondent an their well-meant concern for the children; nevertheless, it seems unlikely that petitioner would have ulterior motives or undue designs more than a parents natural desire to be able to call on, even if it were only on brief visits, his own children. The trial court, in any case, has seen it fit to understandably provide this precautionary measure, i.e., in no case (can petitioner) take out the children without the written consent of the mother. WHEREFORE, the decision of the trial court is REINSTATED, reversing thereby the judgment of the appellate court which is hereby SET ASIDE. No costs. SO ORDERED.
Sec. 6. Hold Departure Order. Pending resolution of the petition, no child of the parties shall be brought out of the country without prior order from the court. 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 child 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 issued within twenty-four hours from the time of its issuance and through the fastest available means of transmittal. The hold departure order shall contain the following information:
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(a) the complete name (including the middle name), the date and place of birth, 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 was issued; (c) the specific nature of the case; and (d) the date of the hold departure order.
If available, a recent photograph of the person against whom a hold departure order has been issued or whose departure from the country has been enjoined should also be included. The court may recall the 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 child. PROHIBITION. Section 6 immediately starts by providing that pending the resolution of the petition, no child of the parties shall be brought out of the country without prior order of the court. The phrase no child expresses the prohibitory nature of the rule, while the word shall its mandatory character. It must be emphasized that the prohibition to bring the child out of the country does not arise by virtue of the Hold Departure Order (HDO) issued by the court. The prohibition shall exist and be enforced as soon as the petition for an annulment of marriage, nullity of marriage or legal separation case is filed. It is the pendency of the petition that creates the prohibition. The issuance of a Hold Departure Order therefore is not a condition sine qua non for the prohibition to exist. Hence, once the petitioner files the case, he or she cannot anymore bring the child out of the country even for a few days-vacation without prior order of the court. If he does so, it can constitute a contemptuous violation for which he or she can be sanctioned on the ground that he or she has committed an improper act tending to impede, obstruct or degrade the administration of justice.1 The contempt proceedings can even be initiated by the court motu proprio.2

1 2
Rule 71, Section 3 of the Rules of Court. Rule 71, Section 4 of the Rules of Court.
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Even prior to the service of summons and the complaint to the defendant, the court can already issue a Hold Departure Order and furnish the same to the Bureau of Immigration, the Department of Justice and the Department of Foreign Affairs to inform the said agencies of the existing prohibition. If the defendant is in custody of the children, he or she must be immediately served with summons and the complaint so that he or she will know that the prohibition has already started. The prohibition is a necessary measure not only for the parties concerned but also for the Court. In awarding the custody of a child to one spouse or to third persons, the court has exercised a very serious decision, which if warranted by the circumstances, must be changed to serve the paramount interest of the child. When the welfare of a helpless child is at stake, it is the bounden duty of courts which they cannot shirk to respect, enforce, and give meaning and substance to a childs natural, legal right to live and grow in the proper physical, moral and intellectual environment.3 To be able to implement this bounden duty or any court order or a change thereof for the benefit of the child, the child must be within the effective reach of the courts powers and processes. The court must be able to readily know his or her condition. If the person to whom custody pendente lite is given abuses his or her right and takes the child in a foreign country without the necessary order, it will not only be detrimental to the exercise of parental authority of the parent here in the Philippines but also prejudicial to the orderly administration of justice as it would effectively frustrate the implementation of any directive of the court for the best interest of the child. HOLD DEPARTURE ORDER. The Hold Departure Order under Section 64 is essential for administrative purposes. It is the official court document that shall justify the Bureau of Immigration, Department of Justice and the Department of Foreign Affairs, to prevent and disallow any attempt by anybody to have the children brought out of the country. Although the prohibition starts from the moment of the filing of the petition, the mere showing that a petition for annulment,
3 Chua vs. Cabangbang, 27 SCRA 791. 4 This is an expansion of Administrative Circular 39-97 which directs that hold departure orders may be issued only in criminal cases within the exclusive regional jurisdiction of the Regional Trial Courts. (Rationale of the New Rules as submitted by the Committee on the Revision of Rules to the Supreme Court, November 11, 2002, Page 12)
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nullity or legal separation has been filed will not be enough for the Bureau of Immigration, Department of Justice and the Department of Foreign Affairs to effectively disallow the leaving of the child on the basis of such case. A Hold Departure Order must be furnished these agencies. In the event however that the party or parties concerned are able, upon motion, to get an order from the court allowing the children to be brought out of the country or in the event the court motu proprio allows the same, the order itself will be valid only as between the parties. Without any directive contained in such order expressly lifting the Hold Departure Order or without the issuance of another order containing such an express revocation of the Hold Departure Order (initiated either by motion or by the court motu proprio), the Bureau of Immigration, Department of Justice and the Department of Foreign Affairs will still be justified in following the previously issued Hold Departure Order. In short, for these agencies to allow the child to leave, the Hold Departure Order must be lifted, either in the order allowing the children to leave or in an independent order (initiated by motion or by the court motu proprio) revoking the Hold Departure Order. The lifting of the Hold Departure Order can contain terms and conditions as may be to the best interest of the children. Sec. 7. Order of Protection . The court may issue an Order of Protection requiring any person: (a) to stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court; (b) to refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded; (c) to refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the child; (d) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods;
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(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; (f) to comply with such other orders as are necessary for the protection of the child. ORDER OF PROTECTION. The enumeration in Section 7 is not exclusive.1 There may be other kinds of protective orders which the court can issue for the protection of the child. The protective order is issued so that the child can as much as possible live a normal and wholesome life free from any tension, bickering, and recrimination from quarreling parents or from people who are not in favor of the custodial order of the court. Sec. 8. Administration of Common Property. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose. The receiver or administrator may not dispose of or encumber any common property or specific separate property of either spouse without prior authority of the court. The provisional order issued by the court shall be registered in the proper Register of Deeds and annotated in all titles of properties subject of the receivership or administration. RECEIVER OR SOLE ADMINISTRATOR. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to act as the receiver or sole administrator of the common property subject to precautionary conditions it may impose, in the event anyone of the spouses abandons the family or fails to comply with his or her marital obligations.
1 Rationale of the New Rules as submitted by the Committee on the Revision of Rules to the Supreme Court, November 11, 2002, Page 12.
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Interestingly, in Sabalones vs. Court of Appeals,1 a husband, after his long years of service as a diplomat, went back to the Philippines. Instead of going back to his legitimate spouse and children, he went to reside with his bigamous wife and illegitimate children. During the nineteen years that he was abroad, it was the legitimate wife who administered the conjugal properties without complaint from the husband. After his arrival, the husband filed a case in court to seek approval of an intended sale of one of the conjugal partnership properties. The wife opposed the petition and counterclaimed for legal separation and praying for the forfeiture of the husbands share in the conjugal partnership property. The wife won as the court found out that the husband really committed bigamy. The case was appealed to the Court of Appeals. The wife filed a motion for the issuance of a preliminary injunction to stop the husband from interfering with her management of the conjugal properties. The husband likewise filed a similar motion to prevent the wife from entering into a renewal of contract with the tenants of their conjugal properties. The Court of Appeals granted the motion of the wife and rejected that of the husband. On a petition for review to the Supreme Court, the husband contended that the Court of Appeals erred in granting the injunction because under Article 124 of the Family Code, the husband and the wife are joint administrators of the property and hence no injunctive relief can be issued against one or the other because no right will be violated. The husband further contended that the Court of Appeals failed to appoint an administrator as mandated by Article 61 of the Family Code. The Supreme Court ruled against the husband stating thus:
We agree with the respondent court that pending the appointment of an administrator over the whole mass of conjugal assets, the respondent court was justified in allowing the wife to continue with her administration. It was also correct, taking into account the evidence adduced at the hearing, in enjoining the petitioner from interfering with his wifes administration pending the resolution of the appeal. The law does indeed grant the spouses joint administration over the conjugal properties as clearly provided in the abovementioned Article 124 of the Family Code. However, Article 61, also above-quoted, states that after a petition for legal separation had been filed, the trial court shall, in the absence of a written

1
G.R. No. 106169, February 14, 1994, 48 SCAD 286.
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agreement between the couple, appoint either one of the spouses or a third person to act as the administrator. While it is true that no formal designation of the administrator has been made, such designation was implicit in the decision of the trial court denying the petitioner any share in the conjugal properties (and thus disqualifying him as administrator thereof). The designation was in effect approved by the Court of Appeals when it issued in favor of the respondent wife the preliminary injunction now under challenge. The primary purpose of the provisional remedy of injunction is to preserve the status quo of the things subject of the action or the relations between the parties and thus protect the rights of the plaintiff respecting these matters during the pendency of the suit. Otherwise, the defendant may, before final judgment, do or continue doing the act which the plaintiff asks the court to restrain and thus make ineffectual the final judgment that may be rendered afterwards in favor of the plaintiff. x x x x x x xxx
The Court notes that the wife has been administering the subject properties for almost nineteen years now, apparently without complaint on the part of the petitioner. He has not alleged, much less shown, that her administration has caused prejudice to the conjugal partnership. What he merely suggests is that the lease of the Forbes Park property could be renewed on better terms, or he should at least be given his share of the rentals. x x x x x x xxx
x x x Regardless of the outcome of the appeal, it cannot be denied that as the petitioners legitimate wife (and the complainant and injured spouse in the action for legal separation), the private respondent has a right to a share (if not the whole) of the conjugal estate. There is also, in our view, enough evidence to raise the apprehension that entrusting said estate to the petitioner may result in its improvident disposition to the detriment of his wife and children. We agree that inasmuch as the trial court had earlier declared the forfeiture of the petitioners share in the conjugal properties, it would be prudent not to allow him in the meantime to participate in its management. Let it be stressed that the injunction has not permanently installed the respondent wife as the administrator of the whole mass of conjugal assets. It has merely allowed her to continue administering the properties in the meantime without interference from the petitioner, pending the express designation of
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the administrator in accordance with Article 61 of the Family Code.2
Sec. 9. Effectivity. This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003.
286.
Sabalones vs. Court of Appeals, G.R. No. 106169, February 14, 1994, 48 SCAD
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RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS
[A.M. No. 03-04-04-SC]
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.
NATURE OF THE CASE. A petition for custody and a habeas corpus case are not civil actions. They are special proceedings. As such, the rule that earnest efforts towards a compromise between members of the same family should first be made before filing of the suit is not applicable in these cases.1 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. PARTIES. The plaintiff or plaintiffs in a custody case are normally one of the parents or both of them. However, the plaintiff can be a person or persons other than the parent or parents. However these persons must show their right to the custody of the child. If the best interest of the child so dictate, the custody of the child may even be awarded to third persons. STATUS OF CHILDREN. The rule applies both to legitimate and illegitimate children.
Manalo vs. Court of Appeals, G.R. No. 129242, January 16, 2002.
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Secs. 3-6
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. VENUE. Section 5(b) of Republic Act No. 8369, otherwise known as the Family Act of 1997 provides, among others that the Family Courts shall have exclusive original jurisdiction to hear and decide petitions for custody of children and habeas corpus in relation to the latter. 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.
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MOTION TO DISMISS. This rule is similar to the rules on judicial declaration of nullity of a void marriage, annulment of a voidable marriage, and legal separation. 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. PERIOD TO FILE ANSWER. Unlike in ordinary civil action where the period to file answer is 15 days, the respondent is given time to file a verified answer within five (5) days only after the service of summons and copy of the petition. The welfare of the child is the paramount consideration in custody cases. Hence, time is very material. 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. SOCIAL WORKER. Each Family Court must have a qualified social worker with academic preparation in behavioral sciences to carry out the duties of conducting intake assessment, social case studies, casework and counseling, and other social services that my be needed in connection with cases filed with the court.1 If the court decides to have a case study of the minors and the parties prior to the pre-trial, the social worker must submit a report or a recommendation within three days from the date of pre-trial. If circumstances so warrant, the social worker can recommend that the court avail itself of consultative services of psychiatrists, psychologists, and other qualified specialists presently employed in other departments of the government in connection with its cases.2 Sec. 9. Notice of mandatory pre-trial. Within fifteen days after the filing of the answer or the ex1 Section 10 of R.A. No. 8369, the Family Courts Act, and Supreme Court Resolution En Banc [A.M. No. 00-8-03-SC]. 2 Section 10 of R.A. No. 8369.
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piration 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.
NOTICE AND PRE-TRIAL PRESENTATION OF MINOR. The parties shall be notified of the date of the pre-trial. The court shall sent notices within 15 days from receipt of the answer or from the expiration of the period to file the answer. The notice shall also require the parties to file a pre-trial brief. More importantly, it shall likewise require the respondent to present the minor before the court at the pre-trial hearing. The presentation of the minor is a new rule. This is important especially if the parties contending are the parents. This is an effective way by which a non-custodial parent can immediately see his or her child on the very first day of hearing, especially if the custodial parent has the tendency to deprive the other of his or her visitation rights. Sec. 10. Contents of pre-trial brief. The pretrial 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;
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(f) The number and names of the witnesses and their respective affidavits which shall serve as the affiants 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. AFFIDAVIT IN LIEU OF ORAL DIRECT TESTIMONY. The rule expressly recognizes the procedure that the testimonies can be in the form of affidavits. This creates another exception to Section 1, Rule 132 of the Revised Rules of Court providing that the examination of witnesses shall be in open court and, unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally. After the contents of the affidavit have been duly affirmed and confirmed in court, the witness shall still be subjected to cross-examination on the contents of the said affidavit. Considering that the affidavit shall still be subjected to cross-examination, it will not constitute hearsay.1 Also, because of the cross-examination and the subsequent re-direct and re-cross examination of the witnesses, the court will have the opportunity to test the veracity of the affiants allegations2 and to evaluate the demeanor of the witness whether or not it is consistent with the truth. Sec. 11. Effect of failure to appear at the pretrial. (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.
1 2
Valenzuela vs. Bellosillo, 322 SCRA 337; Molina vs. People, 298 SCRA 138. Valenzuela vs. Bellosillo, 322 SCRA 337.
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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 (5) 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. MEDIATION. So that the proceedings can be expedited with less expenses to the parties, the said parties can have issues which can be compromised, such as those relating to properties, threshed out by means of mediation. The process of mediation is in furtherance of Section 2(a), Rule 18 of the 1997 Rules of Civil Procedure, as amended, requiring courts to consider the possibility of an amicable settlement or of a submission to alternative modes of resolution. Mediation is a process of resolving disputes with the aid of a neutral person who helps parties identify issues and develops proposals to resolve their disputes. Unlike arbitration, the Mediator is not empowered to decide disputes.1 It is a process where the parties to a pending case are directed by the court to submit their dispute to a Mediator, a neutral third party, who works with them to reach a settlement of their controversy. The mediator acts as a facilitator for the parties to arrive at a mutually acceptable arrangement, which will be the basis for the court to render a judgment based on a compromise.2 Mediation is protected by confidentiality. Information discovered in mediation is inadmissible in court. A party cannot use information gathered in mediation against the other party. The Mediator cannot be subpoenaed to reveal what transpired in mediation.3 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 provi1 Philippine Mediation Center, PHILJA Judicial Journal, January-March 2002 Issue, Volume 4, Issue No. 11, Page 1. 2 Philippine Mediation Center, PHILJA Judicial Journal, January-March 2002 Issue, Volume 4, Issue No. 11, Page 1. 3 Ibid., Pages 3-4.
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sional 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 twentyone 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. PARENTAL PREFERENCE RULE. Under the parental preference rule, the natural parents, who are of good character and who can reasonably provide for the child, ordinarily are entitled to the custody as against all persons. The right of custody accorded to parents spring from the exercise of parental authority.1 Accordingly, such parents are entitled to the custody of their children as against foster or prospective adoptive parents; and such entitlement applies also as against other relatives of the child, including grandparents, or as against an agency or institution.2 In deciding the issue of the custody of the child between a stranger and the parents, it has been said that:
1 Santos vs. Court of Appeals, 242 SCRA 407. 2 67 C.J.S. 207, 208 cited in dissenting opinion of Justice Makasiar in Luna vs. IAC, 137 SCRA 7.
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parents are entitled to the custody of their children. Every court recognizes the deep and enduring affection which parents have for their children and their willingness to make sacrifices and endure hardships in their interests which a stranger would not consider. No court would deprive a parent of his child simply because someone else might give it better care and attention than the means of the parents permit.3 Putting the matter in another way, it is quite correct to say that the welfare of the children is always a matter of paramount concern, but the policy of the state proceeds on the theory that their welfare can best be attained by leaving them in the custody of their parents and seeing to it that the parents right thereto is not infringed or denied. This is the law of the land on this subject. And it never becomes a judicial question as to what is for the welfare and best interests of children until the exceptional case arises where the parents are dead, or where they are unfit to be intrusted [sic] with the custody and rearing of their children and have forfeited this right because of breach of parental duty, or when the right has been prejudiced by the discord of the parents themselves. There are enough of the latter sort of cases where the courts are compelled to interfere and take the custody of children from unfit parents, or to decide which of the quarrelling parents should have their custody.4
TENDER YEARS RULE. Both substantive law and procedural rule provide a very special case as to custody of minors. The second paragraph of Article 213 of the Family Code provides that No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Similarly, the last sentence of Section 6, Rule 99 of the Rules of Code, which is suppletory in nature to the new rules pursuant to Section 1 of the new Rule, provides that No child under seven years of age shall be separated from the mother, unless the court finds that there are compelling reasons therefore. This is called the maternal preference rule or the tender-years-rule. For the said child to be separated from the mother, there are two (2) mandatory legal requisites that must be present: first is the requirement of the presence of a compelling reason; and second is the requirement of a court finding that the reasons are indeed compelling. Mere allegations in a petition, though verified, are therefore not enough. The court must find the reasons to be compelling. This can only be done by the presentation of competent

3 4
Ascroft vs. Jensen, 214 Minn. 193, 195, 7 N.W. 2d 393, 394. In Re Kailer, 123 Kan 230, 231, cited In Re Armentrout, 58 ALR3d 1065.
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evidence. The burden of proof therefore lies on the person, who seeks the separation of the mother from her child below seven years old, to prove the existence of a compelling reason. Absence of any evidence of compelling reason or her unfitness, the mother is not under any obligation to first prove that she is fit or that there is no compelling reason; hence, she has no legal duty to first justify her custody of her own child below seven (7) years of age. This is so because the law and the rule, in legally giving to her the rightful custody of the said child, already acknowledged her fitness. To destroy that legal acknowledgment, concrete evidence must be offered. In applying the tender-years rule, the child must be under seven years of age either at the time the parent is given the custody or at the time that the decision is rendered.5 To highlight the importance of the tender-years-rule, the law and the rule aforequoted are both prohibitory and mandatory. The phrase no child indicates their prohibitory nature, while the word shall stresses their mandatory character.6 In this regard, Article 5 of the Civil Code provides that Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. Any court order that contravenes the rule is void. Also, any agreement by the parties unduly depriving the mother of the custody of her children under seven (7) years of age in the absence of any compelling reason to warrant the same is null and void.7 The Civil Code Commission in recommending that preference stated:
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 as to be for compelling reason for the good of the child; those cases must indeed be rare, if the mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover her moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation.8
5 Espiritu vs. Court of Appeals, 242 SCRA 362. 6 Lacson vs. San Jose-Lacson, 24 SCRA 837. 7 Ibid. 8 Report of the Code Commission, Page 12, cited in Lacson vs. San Jose-Lacson, 24 SCRA 837.
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However, the above opinion of the Code Commission must not be construed to supplant the inflexible criterion in deciding issues of the custody of children. This criterion is always the paramount interest of the child. In Espiritu vs. Court of Appeals,9 despite the choice of the children to go to the father and the determination of an expert psychologist and an expert social worker that the children was better off with the father, the Court of Appeals awarded to the mother, who was convicted of bigamy, the custody of the children who, at the time of the filing of the case in the lower court, were below seven years of age and who saw their mother kissing another man. The Court of Appeals ruled that children below seven years of age should still be awarded to the mother even if the latter is a prostitute or is unfaithful to her husband. This is on the theory that moral dereliction has no effect on a baby unable to understand such action. At the time the Court of Appeals decided the case, the children were already above seven years of age. The Supreme Court reversed the decision of the Court of Appeals and made a determination that the welfare of the children was better served if they were with their father. The Supreme Court said that:
The Court of Appeals was unduly swayed by an abstract presumption of law rather an appreciation of the relevant facts. x x x In all controversies regarding the custody of the minors, the sole and foremost consideration is the physical, educational, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents. x x x. Whether the child is under or over seven years of age, the paramount criterion must always be the childs interest. x x x Once the choice of the child has been made, the burden returns to the court to investigate if the parents thus chosen is unfit to assume parental authority and custodial responsibility.
Adultery of the parent during the childs formative years may likewise be considered in questions involving the custody of children. It has been said that:
It is not logical to assume that a woman can be a good mother and an adulteress at the same time. The primary duty of any mother is to educate her children in the basic moral principles. One who does not possess these principles can hardly be expected to teach them to others.10

9 10
242 SCRA 362. 24 Notre Dame Law 597, 599, case note.
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EXCEPTION TO MATERNAL PREFERENCE. Maternal preference is not an absolute rule. It is intended to serve only the function as a tie-breaker in those rare instances when parental qualities are so equally balanced between litigants that resort to the preference is necessary. Article 213 likewise specifically provides that, if the courts determine that there are compelling reasons existing to deprive the mother of the custody of the child, then an order depriving the mother of custody may be validly issued. What constitutes compelling reason must be clearly shown by positive and clear evidence of the unfitness of the mother and its determination is left to the sound judgment of the courts.11 Thus,
A state statute which provided that, other things being equal, a mother is to be given preference in the matter of the custody of her children of tender years was construed to require that the mother may not be deprived of custody absent a showing of her positive, and not merely comparative, unfitness as a parent, in Earnst vs. Earnst (1966, Okla.) 418 P2d 351, the court reversing a judgment changing the custody of a 5-year-old child from her mother to her father. It is not sufficient to establish the unfitness of a mother for the custody and control of her minor child, the court observed, to show that she has some fault of character, or bad habits; rather it must be shown that her condition in life, or her character and habits are such that provision for the childs ordinary comfort and contentment, or for its intellectual and moral development, cannot be reasonably expected at the mothers hand. And applying this standard in the present case, the court concluded that testimony by several of the mothers relatives to the effect that she slept too late in the morning after being out late at night, left the child in the care of the grandmother in many occasions, failed to properly bathe and dress the child, and otherwise neglected the child, lacked the clarity and decisiveness necessary to be convincing, and revealed at best ill feeling and a long lived controversy between the mother and her relatives. None of the relatives, the court added, testified that the mother was an unfit parent, but merely said that she was neglectful, without any explanation of the term.12
In David vs. Court of Appeals,13 where it was shown that the father was well-off compared to the mother but the latter can nev11 Medina vs. Makabali, 27 SCRA 502; Cervantes vs. Fajardo, 169 SCRA 575. 12 Modern Status of Maternal Preference or Presumption in Child Custody Cases by Thomas R. Trenkner, J.D. 70 ALR 3d 262. 13 250 SCRA 82.
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ertheless decently support her children, the Supreme Court still awarded the children to the mother by stating:
Nor is the fact that private respondent is well-off a reason for depriving petitioner of the custody of her children, especially that she has been able to rear and support them on her own since they were born. Petitioner is a market vendor earning from P2,000 to P3,000 when the RTC decision was rendered. She augments her income by working as secretary at the Computer System Specialist, Inc., earning a monthly income of P4,500.00. She has an arrangement with her employer so that she can personally attend to her children. She works up to 8:00 oclock in the evening to make up for time lost during the day. That she receives help from her parents and sister for the support of the three children is not a point against her. Cooperation, compassion, love and concern for every member of the family are characteristics of the close family ties that bind the Filipino family and have make it what it is. Daisie and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough, however, that petitioner is earning a decent living and is able to support her children according to her means.
In Castelo vs. Estacio,14 where a mother filed a habeas corpus case to get custody of her two children below seven years of age from the father and where it was positively and convincingly shown that the mother of two children below seven years of age can hardly attend to the said children as she was selling jewelry at an average of more than 13 hours a day, that she desired to have the children adopted by her aunt in exchange for monetary consideration leading the court to state that such was a misplaced sense of moral values for a mother, that she used prohibited drugs which made her violent whenever she was under the influence of the same, that she lived in a house with only one room without partition and toilet facilities and which practically was surrounded by stagnant water infested by mosquitoes whereas the father who had custody of the child lived in a well-furnished surrounding with the paternal grandparents and who was shown to have taken care of the children very well, and that, when she took the children with her, the children almost always ended up getting sick without the said mother having them checked by a doctor and, in fact, she even waited for the father to fetch them so that the father had to be the one who took them to the doctor, the

14
CA-G.R. No. SP-31466 dated May 31, 1994.
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Court of Appeals ruled that the situation and behavior of the mother clearly showed compelling reasons to grant the children to the father even though they were below seven years of age. The childs best interest is the cardinal principle in determining the right as between parents to custody, and any presumption of maternal preference is to be resorted to only in the rare situation in which all other considerations are equal, with the parental qualities of litigants so equally balanced that a resort to the presumption is necessary.15 Thus,
Observing that while, as a general rule, courts will indulge the presumption that the interests of young children are best served when they are in the custody of their mother, the controlling consideration is always the welfare of the children, the court in Monacelli vs. Monacelli (1972, Dist Col App 296 A2d 445), affirmed a judgment continuing the custody of three minor children in their father rather than their mother. The childrens mother, the court observed, resided in her parents home without gainful employment and made no plans to move to any environment better suited to the healthy development of the children. Moreover, the court pointed out that notwithstanding protracted psychiatric care, the mother, in the opinion of the trial court, exhibited attitudes which were deemed to have deleterious effects upon the children.16
CUSTODY GRANTED TO OTHERS. Custody may even be awarded to persons who are strangers to the family if such award would best serve the paramount interest of the child.17 Thus, it has been held that:
The absence of any kinship between the child and the Cabangbangs alone cannot serve to bar the lower court from awarding her custody to them. Indeed, the law provides that in certain cases the custody of a child may be awarded even to strangers, as against either the father and the mother or against both. Thus, 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 to entrust the care, custody and control of the child, the court may either des15 Cooke vs. Cooke, 70 ALR3d 255. 16 Modern Status of Maternal Preference or Presumption in Child Custody Cases by Thomas R. Trenkner, J.D. 70 ALR 3d 262. 17 Balatbat vs. Balatbat, 98 Phil. 998.
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ignate the paternal or maternal grandparents of the child, or his oldest brother or sister, or some reputable and discreet persons to take charge of such child, or commit it to any suitable asylum, childrens home, or benevolent society.18
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 extra-judicial 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;
18 Chua vs. Cabangbang, 27 SCRA 291, citing Section 6, Rule 99 of the Rules of Court.
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(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. PARAMOUNT INTEREST OF THE CHILD. In custody cases, the rights of the parents are not in issue. They have been overridden by the singular interests of the child which the parents in turn have submerged by their own acts, in a ratio directly proportional to their responsibility for the familys division. The childs best interest, which constitutes the cardinal principle and the paramount consideration1 in custody cases, is not a principle to be placed upon the balance of scales but rather is the measure by which all else is to be decided. No factor will be given weight that is not homogeneous with that cardinal principle.2 Hence, in custody cases where the spouses are separated from each other, the courts shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. In this regard, it has been stated that:
when the welfare of a helpless child is at stake, it is the bounden duty of courts which they cannot shirk to respect, enforce, and give meaning and substance to a childs natural and legal right to live and grow in the proper physical, moral and intellectual environment.3
If the child is seven years old and above, his or her choice of a parent with whom he or she will live is significant and the court should take this into consideration. However, such choice is not determinative of the issue of custody because, while the choice may be in favor of one parent, the court may still nevertheless award custody to the
Querubin vs. Querubin, 87 Phil. 125. Cooke vs. Cooke, 70 ALR 3rd 255. 3 Chua vs. Cabangbang, 27 SCRA 791.
1 2
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other parent or even to a third person if the paramount interest of the child so dictates. However, if the child has made a choice and there is no showing that the selected parent is in any way unfit to have custody of the child, the child should be awarded to such parent.4 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. VISITATION RIGHTS. The non-custodial parents must be allowed also to exercise his or her right of companionship over his or her child. The exercise of this visitation rights is not only for the benefit of the non-custodial parent but, more importantly for the paramount interest of the child. It is for the childs best interest that he or she grows up knowing his or her parents. The child is also entitled to the love, affection, advice, counsel and understanding of the non-custodial parent.1 These visitation rights are very important so that the non-custodial parent, like the custodial parent, will also have the opportunity within his or her limited time to exercise his or her obligation to provide the children with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, selfreliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship.2 WITHHOLDING OF VISITATION RIGHTS. While the recognition and enforcement of the visitation rights of a non-custodial parent or parents is very important, such right can be withheld if the court finds such parent or parents unfit or disqualified.

4
David vs. Court of Appeals, 250 SCRA 82. Article 220(2) of the Family Code. Article 220(3) of the Family Code.
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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 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.
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PROHIBITION. Section 16 immediately starts by providing that the minor child subject of the petition shall not be brought out of the country without prior order from court while the petition is pending. It must be emphasized that the prohibition to bring the child out of the country does not arise by virtue of the Hold Departure Order (HDO) issued by the court. The prohibition shall exist and be enforced as soon as a petition is filed. It is the pendency of the petition that creates the prohibition. The issuance of a Hold Departure Order therefore is not a condition sine qua non for the prohibition to exist. Even prior to the service of summons and the petition to the respondent, the court can already issue a Hold Departure Order and furnish the same to the Bureau of Immigration, the Department of Justice and the Department of Foreign Affairs to inform the said agencies of the existing prohibition. If the defendant is in custody of the children, he or she must be immediately served with summons and the petition so that he or she will know that the prohibition has already started. HOLD DEPARTURE ORDER. The Hold Departure Order under Section 161 is essential for administrative purposes. It is the official court document that shall justify the Bureau of Immigration, Department of Justice and the Department of Foreign Affairs, to prevent and disallow any attempt by anybody to have the children brought out of the country. Although the prohibition starts from the moment of the filing of the petition, the mere showing that a petition has been filed will not be enough for the Bureau of Immigration, Department of Justice and the Department of Foreign Affairs to effectively disallow the leaving of the child on the basis of such case. A Hold Departure Order must be furnished these agencies. In the event however that the party or parties concerned are able, upon motion, to get an order from the court allowing the children to be brought out of the country or in the event the court motu proprio allows the same, the order itself will be valid only as between the parties. Without any directive contained in such order expressly recalling the Hold Departure Order or without the issuance of another order containing such an express recall of the Hold Departure Order
1 This is an expansion of Administrative Circular 39-97 which directs that hold departure orders may be issued only in criminal cases within the exclusive regional jurisdiction of the Regional Trial Courts. (Rationale of the New Rules as submitted by the Committee on the Revision of Rules to the Supreme Court, November 11, 2002, Page 12)
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(initiated either by motion or by the court motu proprio), the Bureau of Immigration, Department of Justice and the Department of Foreign Affairs will still be justified in following the previously issued Hold Departure Order. In short, for these agencies to allow the child to leave, the Hold Departure Order must be recalled, either in the order allowing the children to leave or in an independent order (initiated by motion or by the court motu proprio) recalling the Hold Departure Order. The recall of the Hold Departure Order can contain terms and conditions as may be to the best interest of the children. 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
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designate either the paternal or maternal grandparent of the minor, of 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. NO FINALITY OF CUSTODY JUDGMENT. It must be pointed out however that decisions of the courts, even the Supreme Court, on the custody of minor children are always open to adjustments as the circumstances relevant to the matter may demand in the light of the inflexible criterion namely, the paramount interest of the children.1 Thus, in Luna vs. Intermediate Appellate Court,2 where the custody of the child was awarded to the grandparents by the lower court but which award was later reversed by the Court of Appeals which made judgment in favor of the natural parents and which Court of Appeals decision was affirmed by the Supreme Court and consequently became final and executory, a writ of execution to deliver the child to the natural parents by the lower court to which the case was remanded for execution was set aside by the Supreme Court when, after the decision of the Supreme Court, the child manifested that she would kill herself if she were delivered to her natural parents instead of letting her stay with her grandparents. The Supreme Court even ruled in its subsequent decision that the decision of the lower court, which

1 2
Unson III vs. Navarro, 101 SCRA 189. 137 SCRA 7.
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it previously in effect reversed when it affirmed the decision of the Court of Appeals awarding the child to the natural parents, should be maintained. 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. MOTION FOR RECONSIDERATION OR NEW TRIAL. As a condition precedent for an appeal, the party intending to make such appeal must first file a motion for reconsideration or a new trial. This is to give the judge who issued the decision to take a second look at the case especially considering that the paramount interest of the child may vary from time to time. 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
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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. HABEAS CORPUS. 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.1 The writ issued by the court or judge shall be directed to an officer and shall command him to take and have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint.2 The writ of habeas corpus can be used by the parents as against third persons. Thus, the writ of habeas corpus is also a proper remedy to enable parents to regain the custody of a minor daughter even though the latter be in the custody of third person of her free will because the parents were compelling her to marry a man against her will.3 However, it has been ruled that a writ of habeas corpus cannot be availed of by a father to get custody of her 24-year-old daughter who voluntarily went with a married man.4 Depending on the circumstances of the case, a habeas corpus case can be availed of to secure the custody of a child5 in case the parents are separated from each other. Thus, the mother of an illegitimate child can avail of a habeas corpus proceeding to get her daughter from the father who took the child to live with his legitimate family.6 This is especially true considering that a mother has sole parental
Section 1, Rule 102 of the Rules of Court of the Philippines. Section 6, Rule 102 of the Rules of Court of the Philippines. 3 David vs. Court of Appeals, 250 SCRA 82. 4 Real vs. Trouthman, 20 SCRA 180. 5 David vs. Court of Appeals, G.R. No. 111180, November 16, 1995. 6 Ibid.
1 2
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authority over her illegitimate child7 in cases where the said mother and child are not living as a family with the father.8 HABEAS CORPUS AND THE TENDER-YEARS RULE. Can a writ of habeas corpus therefore be sought by a father against the mother of their child below seven years of age on the basis merely of a verified petition? In Gualberto vs. Gualberto,9 the Supreme Court said that such case has no leg to stand on. The prohibitory and mandatory nature of the tender-years rule does not allow this. If the writ is issued, the court shall order that the body of the child be taken away from the mother, even against her will, on the basis only of a verified petition without any court finding or determination yet of any compelling reason as imperatively required by law. Moreover, the respondentmother would be required to show cause why the child should not be taken from her prior to any presentation of any compelling reason by the petitioner. Significantly, the Rules of Court provides that a writ of habeas corpus shall extend to a situation where the rightful custody of any person is withheld from the person entitled thereto.10 If the writ is issued against a mother of a child of tender years, the object of the tender-years rule enunciated in Article 213 of the Family Code will clearly be negated, for such writ shall take away the child below seven years from the mother who, precisely and by mandate of the law, has rightful custody of the child and is the one entitled thereto. As previously explained in the discussion on the tender-years rule, absence of any evidence of compelling reason or of her unfitness, the mother is not under any obligation to first prove that she is fit or that there is no compelling reason; hence, she has no legal duty to first justify her custody of her own child below seven years of age. This is so because the law and the rule, in legally giving to her the rightful custody of the said child, already acknowledge her fitness. To destroy this legal acknowledgment, concrete evidence must be offered. What then is the remedy of the father? If there are compelling reasons to deprive the mother of the custody of the child below seven years of age, the remedy of the father is to file a verified petition for custody of child under Section 2 of the Rule. In such a case, the rule provides that, at the pre-trial, the respondent shall be required to bring the child to court. The father can also seek custody pendente lite
Article 176 of the Family Code; David vs. Court of Appeals, 250 SCRA 82. David vs. Court of Appeals, 250 SCRA 82. 9 G.R. No. 154994, G.R. No. 156254, June 28, 2005. 10 Section 1, Rule 102 of the Rules of Court of the Philippines.
7 8
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of the child by proving compelling reasons in a preliminary hearing for that purpose pursuant to Section 13 of the Rule. He can likewise seek a protective order under Section 17(d) of the Rule so that he could enforce his visitation rights during the pendency of the proceedings. If the father has no compelling reason to seek custody of the child under seven years of age, the said father can file a case to compel the mother to recognize his visitation rights. IDENTITY. The question of identity is relevant and material in habeas corpus proceedings, subject to the usual presumptions including those as to identity of the person. Thus in Tijam vs. Court of Appeals,11 where the real parent-petitioner filed a habeas corpus case against the impostor-parent-private respondent who kidnapped the child from the real parent and caused the issuance of a falsified birth certificate indicating that the child was hers and that of her live-in partner despite the fact that she and her partner were sterile, the Supreme Court ruled that the child belongs to the real parent by making the following observations as to identity:
A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is sufficient to establish that John 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 that 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 (where he bumped his private parts against the edge of a banca causing him excruciating pain and eventual loss of his child-bearing capacity) 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 had

11
G.R. No. 125901, March 8, 2001.
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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 in 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 courts 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 Bienvenidas 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 the subject minor is indeed the son of petitioners. The writ of habeas corpus is proper to regain custody of said child.12
HABEAS CORPUS IN THE RULES OF COURT. The rules provide that the Rules of Court shall apply in a suppletory nature. In so far as habeas corpus is concerned, Rule 102 of the Rules of Court governs habeas corpus.
Rule 102 HABEAS CORPUS SECTION 1. To what habeas corpus extends. Except as otherwise expressly provided by law, the writ of habeas corpus

12
Tijam vs. Court of Appeals, G.R. No. 125901, March 8, 2001.
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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. SEC. 2. Who may grant the writ. The writ of habeas corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or by the Court of Appeals or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Court of First Instance, or any judge thereof for hearing and decision on the merits. It may also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district. SEC. 3. Requisites of application therefor. Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth: (a) That the person in whose behalf the application is made is imprisoned or restrained of his liberty; (b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (c) known; The place where he is so imprisoned or restrained, if
(d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear. SEC. 4. When writ not allowed or discharge authorized. If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in
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this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. SEC. 5. When the writ must be granted and issued. A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it. SEC. 6. To whom writ directed, and what to require. In case of imprisonment or restraint by an officer, the writ shall be directed to him, and shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint. SEC. 7. How prisoner designated and writ served. The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer, or by a person deputed by the court or judge. Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. If that person cannot be found, or has not the prisoner in his custody, then the service shall be made on any other person having or exercising such custody. SEC. 8. How writ executed and returned. The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or, in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or judge; and the officer shall make due return of the writ, together
156
Sec. 20
with the day and the cause of the caption and restraint of such person according to the command thereof. SEC. 9. Defect of form. No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned of restrained is held and the court or judge before whom he is to be brought. SEC. 10. Contents of return. When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably: (a) Whether he has or has not the party in his custody of power, or under the restraint; (b) If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth of large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held; (c) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; (d) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. SEC. 11. Return to be signed and sworn to. The return or statement shall be signed by the person who makes it; and shall also be sworn to by him if the prisoner is not produced, and in all other cases unless the return is made and signed by a sworn public officer in his official capacity. SEC. 12. Hearing on return. Adjournments. When the writ is returned before one judge, at a time when the court is in session, he may forthwith adjourn the case into the court, there to be heard and determined. The court or judge before whom the writ is returned or adjourned must immediately proceed to hear and examine the return, and such other matters as are properly
Sec. 20
157
submitted for consideration, unless for good cause shown the hearing is adjourned, in which event the court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. If the person imprisoned or restrained is not produced because of his alleged sickness or infirmity, the court or judge must be satisfied that it is so grave that such person cannot be produced without danger, before proceeding to hear and dispose of the matter. On the hearing the court or judge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authorized to commit by law. SEC. 13. When the return evidence, and when only a plea. If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint; but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts. SEC. 14. When person lawfully imprisoned recommitted, and when let to bail. If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. If he be admitted to bail, he shall forthwith file a bond in such sum as the court or judge deems reasonable, considering the circumstances of the prisoner and the nature of the offense charged, conditioned for his appearance before the court where the offense is properly cognizable to abide its order or judgment; and the court or judge shall certify the proceedings, together with the bond, forthwith to the proper court. If such bond is not so filed, the prisoner shall be recommitted to confinement. SEC. 15. When prisoner discharged if no appeal. When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released.
158
Sec. 20
SEC. 16. Penalty for refusing to issue writ, or for disobeying the same. A clerk of court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, and may also be punished by the court or judge as for contempt. SEC. 17. Person discharged not to be again imprisoned. A person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court having jurisdiction of the cause or offense; and a person who knowingly, contrary to the provisions of this rule, recommits or imprisons, or causes to be committed or imprisoned, for the same offense, or pretended offense, any person so set at liberty, or knowingly aids or assists therein, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, notwithstanding any colorable pretense or variation in the warrant of commitment, and may also be punished by the court or judge granting the writ as for contempt. SEC. 18. When prisoner may be removed from one custody to another. A person committed to prison, or in custody of an officer, for any criminal matter, shall not be removed therefrom into the custody of another officer unless by legal process, or the prisoner be delivered to an inferior officer to carry to jail, or, by order of the proper court or judge, be removed from one place to another within the Philippines for trial, or in case of fire, epidemic, insurrection, or other necessity or public calamity; and a person who, after such commitment, makes signs, or countersigns any order for such removal contrary to this section, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action. SEC. 19. Record of writ, fees and costs. The proceedings upon a writ of habeas corpus shall be recorded by the clerk of the court, and upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires. The fees of officers and witnesses shall be included in the costs taxed, but no officer or person shall have the right to demand payment in advance of any fees to which he is entitled
Secs. 21-22
159
by virtue of the proceedings. When a person confined under color of proceedings in a criminal case is discharged, the costs shall be taxed against the Republic of the Philippines, and paid out of its Treasury; when a person in custody by virtue or under color of proceedings in a civil case is discharged, the costs shall be taxed against him, or against the person who signed the application for the writ, or both, as the court shall direct.
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. CONFIDENTIALITY. The confidentiality of the hearings on the custody of minor may or may not be closed to the public depending upon the discretion of the court. However, as to the records of the case, they are, as a general rule, confidential and can be released to non-parties only upon approval of the court. 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.
160
Secs. 21-22
RULE ON GUARDIANSHIP OF MINORS

[A.M. No. 03-02-05-SC]
Section 1. Applicability of the Rule. This Rule shall apply to petitions for guardianship over the person or property, or both, of a minor. The father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on guardianship. PARENTS AS GUARDIANS. The laws concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience and capacity for judgment required for making lifes difficult decision. More important historically, it has recognized that natural bonds of affection lead parents to act in the best interest of the child.1 Hence, parents exercise legal guardianship over the person and property of their minor children without the necessity of court appointment.
Unemancipated minor children, due to the incomplete development of their mind and intellectual faculties, and to their lack of experience in the world, need the counsel, care, and guidance of their progenitors in order to prevent the impulse of passion, excited by worldly illusions which their undeveloped intellectual faculties are not strong enough to overcome, from leading them to serious consequences.2
NON-APPLICABILITY OF SUPPLETORY CHARACTER OF RULE. While the rule states that it is suppletory to the provisions of the Family Code on Guardianship, Article 225 of the Family

1 2
Parham vs. J.R., 442 US 584, 61 L. Ed 2d 101. Salvana and Saliendra vs. Gaela, 55 Phil. 680.
160
Sec. 2
RULE ON GUARDIANSHIP OF MINORS [A.M. No. 03-02-05-SC]
161
Code provides that, with respect to the parental authority over the property of the child, the ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent remarried, in which case the ordinary rules on guardianship shall apply. Sec. 2. Who may petition for appointment of guardian. On grounds authorized by law, any relative or other person on behalf of a minor, or the minor himself if fourteen years of age or over, may petition the Family Court for the appointment of a general guardian over the person or property, or both, of such minor. The petition may also be filed by the Secretary of Social Welfare and Development and by the Secretary of Health in the case of an insane minor who needs to be hospitalized. GUARDIAN. A guardianship is a trust relation of the most sacred character, in which one person, called a guardian, acts for another, called the ward, whom the law regards as incapable of managing his own affairs.1 It has been said that in no relation, except that of parent and child or husband and wife, are the elements of confidence on one side and active good faith on the other more essential than in the relation of guardian and ward. The ward is frequently a minor and often so young as to be entirely dependent on his guardian. The guardian is sometimes the wards father or mother and, if not, sustains a quasiparental relation. The government itself is, in a sense, the supreme guardian, whom the individual guardian represents in its solicitude for the welfare of the wards. Guardianship, therefore, has been said to be a trust of the highest and most sacred character. The law looks on the guardian as a trustee, and as such, he cannot be allowed by law to have any inducement to neglect his wards interest.2 GUARDIANSHIP PROCEEDING. Persons other than the parents cannot be expected to have the same sense of devotion and loyalty to the child not their own and therefore more protection and safeguards are needed. They must therefore file a petition for guardianship if they want to be guardians of minors who are not their

1 2
39 Am. Jur. 9. 39 Am. Jur. 159.
162
Secs. 3-4
children. Thus, in a case where the dispute deals with the issue of which person, namely the mother or the childs uncle, should take hold or manage the proceeds of an insurance policy given to the child by the deceased father, the Supreme Court observed that:
It is not an unreasonable assumption that between a mother and an uncle, the former is likely to lavish more care on and pay greater attention to her. This is all the more likely considering that the child is with the mother. There are no circumstances then that did militate against what conforms to the natural order of things, even if the language of the law were not as clear. It is not to be lost sight of either that the judiciary pursuant to its role as an agency of the State as parens patriae, with an even greater stress on family unity under the present Constitution, did weigh in the balance the opposing claims and did come to the conclusion that the welfare of the child called for the mother to be entrusted with such responsibility.3
Sec. 3. Where to file petition. A petition for guardianship over the person or property, or both, of a minor may be filed in the Family Court of the province or city where the minor actually resides. If he resides in a foreign country, the petition shall be filed with the Family Court of the province or city where his property or any part thereof is situated. ACTUAL RESIDENCE. If the minor resides in the Philippines, the petition shall be filed in the Family Court of the province or city where the minor has his actual residence. The word actually denotes that the residence requirement does not refer to legal residence.1 Sec. 4. Grounds of petition. The grounds for the appointment of a guardian over the person or property, or both, of a minor are the following: (a) death, continued absence, or incapacity of his parents; (b) suspension, deprivation or termination of parental authority;

3
Cabanas vs. Pilapil, 58 SCRA 94.
1 Minutes of the Meeting of the Committee on the Revision of the Rules of Court, November 11, 2002, Page 3.
Sec. 4
163
(c) remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; or (d) when the best interests of the minor so require. SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY. Parental authority can be suspended or terminated only on grounds provided by law. Mainly these grounds are contained from Article 228 up to Article 2321 of the Family Code. Other laws may also provide grounds for suspension and termination. Article 278 of the Revised Penal Code provides, among others, that it is unlawful for any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under sixteen years of age to deliver, either gratuitously or in consideration of any price, compensation or promise, such child to any habitual vagrant or beggar, or to any person who, being an acrobat, gymnast, rope-walker, diver, wild animal tamer or circus manager or engaged in a similar calling who employs said children in exhibitions. In case it is the parents who entrust such child, he or she may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority and they shall be punished by the penalty of prision correcional in its minimum and medium periods and a fine not exceeding P500. REMARRIED PARENT. The death of one spouse does not terminate the parental authority of the surviving spouse. Neither does the nullity of a void marriage or annulment of a voidable marriage terminate the parental authority of the separated parents over their common children. What then is the effect of remarriage? If the marriage is terminated by death, Article 212 of the Family Code is explicit as to the effect of remarriage of the surviving parent. It provides that the marriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. This clearly implies that the appointment of a new guardian over the person and property of the children terminates the surviving-remarried-parents parental authority. Concomitantly, a remarried parents parental authority over the person or property of his or her children can only

1
See Appendix A.
164
Sec. 4
be removed if, according to Section 6 of the new Rule, such parent is found to be unsuitable to exercise parental authority. Consequently, the appointment of a new guardian must necessarily mean a clear showing that the surviving-remarried-parent is unsuitable to exercise parental authority. If the marriage is terminated by either a declaration of nullity of a void marriage or the annulment of a voidable marriage, the law does not have a provision similar to Article 212 of the Family Code on death with respect to a surviving spouse. The law is silent as to the effect of the remarriage of the separated parents as to their respective parental authority over their children. Nevertheless, in so far as parental authority over the person of the common children is concerned, it is clear that the said parental authority is not terminated considering that the law on parental authority does not provide remarriage of a parent as a ground to terminate his or her parental authority.2 In so far as the parental authority over the property of the common children is concerned, substantive law clearly and specially suggests that remarriage has an effect on the guardianship of the parents over their children. Pursuant to substantive law, particularly Article 225 of the Family Code, the special rule is that, with respect to the property of the common children, the father and the mother are the legal guardians of their common children without necessity of a court appointment. This special rule is reiterated in Section 1 of the new rules. In this regard, the last paragraph of Article 225 generally provides that the ordinary rules of guardianship, which needs court appointment to be constituted as a guardian, shall be merely suppletory. This is reiterated in Section 1 of the new procedural rule which states that the new rule is suppletory to the provisions of the Family Code on Guardianship. However, the same substantive law contained in Article 225 of the Family Code, in the last paragraph thereof, significantly and mandatorily provides that for remarried parents the ordinary rules of guardianship shall apply. Thus, it provides that the ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent remarried, in which case the ordinary rules on guardianship shall apply. In so far as parental authority over the property of the children is concerned, the clause a parent

2
Articles 228, 229, 230, 231 and 232 of the Family Code.
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165
remarried, in which case the ordinary rules on guardianship shall apply could not refer to a situation where the surviving spouse remarries after the death of his or her spouse because such situation is governed by Article 212 of the Family Code. The said clause could only refer to a situation where a previous spouse is remarried after the nullification or annulment of his or her prior marriage. If the ordinary rules on guardianship would apply to this latter case of a remarried parent, then it is clear that, to put effect to Article 225 of the Family Code, the remarried parent should apply as a legal guardian precisely in accordance with the ordinary rules of guardianship; undeniably implying that, at the time of remarriage, his or her parental authority over the property of the common children has been legally affected. In including a remarried parent as exception together with strangers and persons with substitute parental authority, there is clearly an obvious recognition that his or her situation is totally different from one who has not remarried. A remarried parent may be unduly influenced by the new spouse to undertake certain activities not promoting or protecting the interest of the children and thereby affecting his or her loyalty to the same. While this undue influence of the new spouse of the remarried-parent may or may not actually happen, what is sought to be protected is the interest of the children from being exposed to this possibility. What is sought to be prevented is obviously the danger of placing the properties of the children in a situation where a person, who is not related to the children, could entertain undue interest in the childrens properties, by detrimentally influencing the remarried parent who has authority over the same as to how the properties will be managed. Hence, to protect the children, there is a need to follow the ordinary rules of guardianship. Once, the remarried parents parental authority over the children is maintained or reinstated by the court in accordance with the ordinary rules of guardianship, a remarried parents parental authority over the property can only be removed if, according to Section 6 of the Rule, such remarried parent is found to be unsuitable to exercise parental authority. Another point of view with respect to remarried parent after his or her prior marriage has been nullified or annulled is that his parental authority over the property of the children is not affected upon remarriage and hence, his or her guardianship over their property can only be changed if, according to Section 6 of the Rule, such parent is found to be unsuitable to exercise parental authority. This however does not take into consideration the implication or legal consequence provided by Article 225 of the Family Code, the substantive law on
166
Secs. 5-6
the matter, providing that remarried parent shall be governed by the ordinary rules on guardianship. Sec. 5. Qualifications of guardians. In appointing a guardian, the court shall consider the guardians: (a) moral character; (b) physical, mental and psychological condition; (c) financial status; (d) relationship of trust with the minor;
(e) availability to exercise the powers and duties of a guardian for the full period of the guardianship; (f) lack of conflict of interest with the minor; and (g) ability to manage the property of the minor.
Sec. 6. Who may be appointed guardian of the person or property, or both, of a minor. In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, observing as far as practicable, the following order of preference: (a) the surviving grandparent and in case several grandparents survive, the court shall select any of them taking into account all relevant considerations; (b) the oldest brother or sister of the minor over twenty-one years of age, unless unfit or disqualified; (c) the actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; and (d) any other person, who in the sound discretion of the court, would serve the best interests of the minor.
Secs. 7-9
167
Sec. 7. Contents of petition. A petition for the appointment of a general guardian must allege the following: (a) The jurisdictional facts; (b) The name, age and residence of the prospective ward; (c) The ground rendering the appointment necessary or convenient; (d) The death of the parents of the minor or the termination, deprivation or suspension of their parental authority; (e) The remarriage of the minors surviving parent; (f) The names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him in their care and custody; (g) The probable value, character and location of the property of the minor; and (h) The name, age and residence of the person for whom letters of guardianship are prayed. The petition shall be verified and accompanied by a certification against forum shopping. However, no defect in the petition or verification shall render void the issuance of letters of guardianship. Sec. 8. Time and notice of hearing. When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for its hearing, and shall cause reasonable notice to be given to the persons mentioned in the petition, including the minor if he is fourteen years of age or over, and may direct other general or special notice to be given. Sec. 9. Case study report. The court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. The social
168
Secs. 10-12
worker may intervene on behalf of the minor if he finds that the petition for guardianship should be denied. CASE STUDY. The social worker is tasked not only to conduct a case study of the minor but also the prospective guardian. The case study report may be prepared either by the court social worker, the social worker of the Department of Social Welfare and Development, or the social worker of the local government.1 Sec. 10. Opposition to petition. Any interested person may contest the petition by filing a written opposition based on such grounds as the majority of the minor or the unsuitability of the person for whom letters are prayed, and pray that the petition be denied, or that letters of guardianship issue to himself, or to any suitable person named in the opposition. Sec. 11. Hearing and order for letters to issue. At the hearing of the petition, it must be shown that the requirement of notice has been complied with. The prospective ward shall be presented to the court. The court shall hear the evidence of the parties in support of their respective allegations. If warranted, the court shall appoint a suitable guardian of the person or property, or both, of the minor. At the discretion of the court, the hearing on guardianship may be closed to the public and the records of the case shall not be released without its approval. Sec. 12. When and how a guardian of the property for non-resident minor is appointed; notice. When the minor resides outside the Philippines but has property in the Philippines, any relative or friend of such minor, or any one interested in his property, in expectancy or otherwise, may petition
1 Minutes of the Meeting of the Committee on the Revision of the Rules of Court, November 11, 2002, Page 3.
Secs. 13-14
169
the Family Court for the appointment of a guardian over the property. Notice of hearing of the petition shall be given to the minor by publication or any other means as the court may deem proper. The court may dispense with the presence of the non-resident minor. If after hearing the court is satisfied that such non-resident is a minor and a guardian is necessary or convenient, it may appoint a guardian over his property. Sec. 13. Service of final and executory judgment or order. The final and executory judgment or order shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the place where his property or part thereof is situated shall annotate the same in the corresponding title, and report to the court his compliance within fifteen days from receipt of the order. Sec. 14. Bond of guardian; amount; conditions. Before he enters upon the execution of his trust, or letters of guardianship issue, an appointed guardian may be required to post a bond in such sum as the court shall determine and conditioned as follows: (a) To make and return to the court, within three months after the issuance of his letters of guardianship, a true and complete inventory of all the property, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf; (b) To faithfully execute the duties of his trust, to manage and dispose of the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education; (c) To render a true and just account of all the property of the ward in his hands, and of all
170
Secs. 10-15
proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs; and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and (d) To perform all orders of the court and such other duties as may be required by law. Sec. 15. Where to file the bond; action thereon. The bond posted by a guardian shall be filed in the Family Court and, in case of breach of any of its condition, the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property. Whenever necessary, the court may require the guardian to post a new bond and may discharge from further liability the sureties on the old bond after due notice to interested persons, if no inquiry may result therefrom to those interested in the property. CLAIM AGAINST THE GUARDIAN. The claim against the guardian and on the bond can be made in the same proceeding to provide a speedy and inexpensive procedure on the prosecution of the guardian for violating the conditions of the bond.1 FORFEITURE. In Jocson vs. Empire Insurance Co.,2 where the bond of the guardian-father was sought to be forfeited on the ground that, although he had court approval to use some of the money, which the children inherited from their mother, for the childrens clothing and education, such expenditure was illegal because support cannot be taken from the property of the children but from the guardian-fathers own property considering that, according to the law, parents were obliged to support their children, the Supreme Court held that, since
1 Minutes of the Meeting of the Committee on the Revision of the Rules of Court, November 11, 2002, Page 3. 2 103 Phil. 580.
Sec. 16
171
support was dependent also on the need of the recipient and that, for payment thereof, demand was a necessary requisite and considering that there was no demand, the use of the childrens money by the guardian-father to buy them clothes and pay their education, which was made with court approval, was valid and therefore the bond cannot be forfeited. Furthermore, the Supreme Court said, the claim for support should be enforced in a separate action and not in these guardianship proceedings. Sec. 16. Bond of parents as guardians of property of minor. If the market value of the property or the annual income of the child exceeds P50,000.00, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than ten per centum of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the Family Court of the place where the child resides or, if the child resides in a foreign country, in the Family Court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations of a general guardian shall be heard and resolved. BOND. Section 16 is taken from Article 225 of the Family Code. If the value of the property or income of the child exceeds P50,000, the parents are required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians.1 The reason for the P50,000 bench mark drafted by the committee which studied the Family Code, is as that the committee considers P50,000 as the amount when the property is valuable enough to require a bond on the basis of the current valuation, considering the possible abuse by the parents and the expensiveness of the bond.2
1 See Pineda vs. Court of Appeals, 226 SCRA 754. 2 Minutes of the 186th Joint Meeting of the Civil Code and Family Law committees held on July 4, 1987, Page 10.
172
Sec. 16
Also, the law speaks of the market value of the property or the annual income of the child, which means, therefore, the aggregate of the childs property or annual income; if this exceeds P50,000.00 a bond is required.3 In a case where the claims of the three minors were worth P50,000.00 each over the death of their father and where it was contended that, in releasing the said amounts, the insurance company did not violate Section 180 of the Insurance Code requiring the posting of bond on the part of the parent with respect to a claim of a child-beneficiary in cases where the interest of the minor in the particular claim did not exceed twenty thousand pesos, because Article 180 of the Insurance Code was already repealed by Article 225 of the Family Code which provides that a bond is required only if the property or income of the unemancipated children amounts to over P50,000.00, the Supreme Court ruled against the insurance company by observing that, for Article 225 of the Family Code to apply, there must be evidence that the share of each of the minors in the proceeds of the group policy in question is the minors only property. Without such evidence, it would not be safe to conclude that, indeed, that is his only property.4 It is usually held that the giving of such a bond, the qualification of the guardian as it is called, is a condition precedent to the vesting of his authority. Any act done without or before the giving of the bond is a nullity.5 Where the natural guardian is empowered to take possession of and administer on the assets of his ward upon giving bond, the giving of the required bond is a prerequisite to this right to exercise such power.6 SUMMARY PROCEEDING. Parents are required to immediately take care of the affairs of the unemancipated children. The day to day management should not be derailed by long court proceedings. Hence the judicial proceeding with respect to the approval of the bond is summary in nature. This is also because the law itself has already constituted the parents as the legal guardian and hence it is presumed that they will only act to preserve the interest of the children and that the bond they filed with the court is in such amount as will be enough to protect the child. However, the courts still have the discretion to determine what is the reasonable amount but in no
Pineda vs. Court of Appeals, 226 SCRA 754. Pineda vs. Court of Appeals, 226 SCRA 754. 5 39 Am. Jur. 46. 6 39 Am. Jur. 46-47.
3 4
Sec. 17
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case should the amount of the bond be less than ten percent (10%) of the value of the property or annual income of the child. All other incidents and issues shall be decided in an expeditious and inexpensive manner without regard to technical rules in the same proceeding where the bond was approved. This rule was taken from Article 225 of the Family Code. The phrase all other incidents and issues may include the alienation, disposition, mortgaging or otherwise encumbering of the property beyond P50,000. During the deliberations of the Civil Code and Family law committee, Justice Caguioa in referring to this matter of all other incidents and issues in the fourth paragraph of Article 225 which, in the original draft was Article 237, clarified that the obligation to obtain authority on the part of the general guardian to sell or mortgage is limited to real properties which exceeds the value of P50,000, however for purpose of this article, it includes personal properties since they are referring to the second paragraph of the proposed 237.7 Sec. 17. General duties of guardian. A guardian shall have the care and custody of the person of his ward and the management of his property, or only the management of his property. The guardian of the property of a nonresident minor shall have the management of all his property within the Philippines. A guardian shall perform the following du ties: (a) To pay the just debts of the ward out of the personal property and the income of the real property of the ward, if the same is sufficient; otherwise, out of the real property of the ward upon obtaining an order for its sale or encumbrance; (b) To settle all accounts of his ward, and demand, sue for, receive all debts due him, or may, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects; and to appear for and represent the ward in all actions
7 Minutes of the Joint Civil Code and Family Law Committees held on March 1, 1986, Page 6.
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and special proceedings, unless another person is appointed for that purpose; (c) To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward; and if such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court to do so; (d) To consent to a partition of real or personal property owned by the ward jointly or in common with others upon authority granted by the court after hearing, notice to relatives of the ward, and a careful investigation as to the necessity and propriety of the proposed action; (e) To submit to the court a verified inventory of the property of his ward within three months after his appointment, and annually thereafter, the rendition of which may be required upon the application of an interested person; (f) To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within three months after such discovery, succession, or acquisition; and (g) To render to the court for its approval an accounting of the property one year from his appointment, and every year thereafter or as often as may be required. Sec. 18. Power and duty of the court. The court may: (a) Request the assistance of one of more commissioners in the appraisal of the property of the ward reported in the initial and subsequent inventories; (b) Authorize reimbursement to the guardian, other than a parent, of reasonable expenses
Secs. 17-19
175
incurred in the execution of his trust, and allow payment of compensation for his services as the court may deem, just, not exceeding ten per centum of the net income of the ward, if any; otherwise, in such amount the court determines to be a reasonable compensation for his services; and (c) Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the property of the ward, require any person suspected of having embezzled, concealed, or disposed of any money, goods or interest, or a written instrument belonging to the ward or his property to appear for examination concerning any thereof and issue such orders as would secure the property against such embezzlement, concealment or conveyance. Sec. 19. Petition to sell or encumber property. When the income of the property under guardianship is insufficient to maintain and educate the ward, or when it is for his benefit that his personal or real property or any part thereof be sold, mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property, the guardian may file a verified petition setting forth such facts, and praying that an order issue authorizing the sale or encumbrance of the property. SALE AND ENCUMBRANCE. It has been held that the parents authority over the estate of the ward as a legal-guardian would not extend to acts of encumbrance or disposition, as distinguished from acts of management or administration. The distinction between one and the other kind of power is too basic in our law to be ignored.1 Thus, in a case where the mother did not seek court approval of the sale of properties of her minor children, the Supreme Court declared the sale as void with the following observations:
Although the mother was said to be the minor childrens guardian an allegation on which there is not the slightest

1
Nario vs. Philippine American Life Ins., Co., 20 SCRA 434.
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evidence it does not appear that she was authorized to enter into these transaction or that the sale was approved by the competent court. Without the courts authority or approval, the sale was ineffective as to the minor children even if she were the minors judicial guardian. A guardian has no authority to sell real estate of his ward, merely by reason of his general powers, and in the absence of any special authority to sell conferred by will, statute, or order of the court.2 A sale of the wards realty by the guardian without authority from the court is void.3
Likewise, an abdicative waiver of rights by a guardian is an act of disposition. It cannot bind his ward, being null and void as to the ward unless duly authorized by the proper court. Thus, a parent-guardian cannot waive the rights of his or her children over property inherited from the father.4 A parent has no power to compromise their childrens claims, for a compromise has always been deemed equivalent to an alienation, and is an act of strict ownership that goes beyond mere administration.5 The courts approval is necessary in compromises entered into by guardians, parents, absentees representatives and administrators or executors of decedents estates.6 Sec. 20. Order to show cause. If the sale or encumbrance is necessary or would be beneficial to the ward, the court shall order his next of kin and all person/s interested in the property to appear at a reasonable time and place therein specified and show cause why the petition should not be granted. Sec. 21. Hearing on return or order; costs. At the time and place designated in the order to show cause, the court shall hear the allegations and evidence of the petitioner and next of kin, and other persons interested, together with their witnesses,
2 28 C.J., 1133. 3 Lafarga vs. Lafarga, 22 Phil. 357; Ledesma Hermanos vs. Castro, 55 Phil. 136; Drysdales Succ., 130 La., 167, 57 S. 789; Loving vs. Craft, Tx. Civ. A. 228 S.W. 390; Palmer vs. Abraham, 55 Wash., 352; 104 P. 648. 4 See Ledesma Hermanos vs. Castro, 55 Phil. 136, 142; Reyes vs. Barretto-Datu, 19 SCRA 85. 5 Visaya, et al. vs. Suiguitan, et al., G.R. No. L-8300, November 18, 1955; Lindain vs. Court of Appeals, 212 SCRA 725. 6 Article 2032 of the Civil Code.
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and grant or deny the petition as the best interests of the ward may require. Sec. 22. Contents of order for sale or encumbrance and its duration; bond. If, after full examination, it is necessary, or would be beneficial to the ward, to sell or encumber the property, or some portion of it, the court shall order such sale or encumbrance the proceeds of which shall be expended for the maintenance or the education of the ward, or invested as the circumstances may require. The order shall specify the grounds for the sale or encumbrance and may direct that the property ordered sold be disposed of at public sale, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale or encumbrance, but the court may, if deemed expedient, require an additional bond as a condition for the sale or encumbrance. The authority to sell or encumber shall not extend beyond one year, unless renewed by the court. Sec. 23. Court may order investment of proceeds and direct management of property. The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands, in real or personal property, for the best interests of the ward, and may make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant. Sec. 24. Grounds for removal or resignation of guardian. When a guardian becomes insane or otherwise incapable of discharging his trust or is found thereafter to be unsuitable, or has wasted or mismanaged the property of the ward, or has failed to render an account or make a return for thirty days after it is due, the court may, upon reasonable notice to the guardian, remove him as such and require him to surrender the property of the ward to the person found to be lawfully entitled thereto.
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Secs. 25-28
The court may allow the guardian to resign for justifiable causes. Upon the removal or resignation of the guardian, the court shall appoint a new one. No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. Sec. 25. Ground for termination of guardianship. The court motu proprio or upon verified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has come of age or has died. The guardian shall notify the court of such fact within ten days of its occurrence. Sec. 26. Service of final and executory judgment or order. The final and executory judgment or order shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the province or city where his property or any part thereof is situated. Both the Local Civil Registrar and the Register of Deeds shall enter the final and executory judgment or order in the appropriate book in their offices. Sec. 27. Effect of the rule. This Rule amends Rules 92 to 97 inclusive of the Rules of Court on guardianship of minors. Guardianship of incompetents who are not minors shall continue to be under the jurisdiction of the regular courts and governed by the Rules of Court. Sec. 28. Effectivity. This Rule shall take effect on May 1, 2003, following its publication in a newspaper of general circulation not later than April 15, 2003.
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RULE ON ADOPTION
[A.M. No. 02-6-02-SC] A. DOMESTIC ADOPTION
Section 1. Applicability of the Rule. This Rule covers the domestic adoption of Filipino children. NATURE OF ADOPTION PROCEEDINGS. No person can adopt or may be adopted except through a judicial decree by a competent court. A private adoption agreement between parties is void and does not produce any legal effect.1 Adoption is a juridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in accordance with the procedure laid down under the New Rules on Adoption is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise the adoption is an absolute nullity. The fact of adoption is never presumed but must be affirmatively proved by the person claiming its existence.2 Adoption proceedings being in rem, no court may entertain them unless it has jurisdiction, not only over the subject matter of the case and over the parties, but also, over the res, which is the personal status not only of the person to be adopted, but also of the adopting parents.3 Constructive notice to the parties by publication is sufficient.4 Sec. 2. Objectives. (a) The best interests of the child shall be the paramount consideration in all matters relating to his care, custody and adoption,
In re Adoption of Resaba, 95 Phil. 244. Lazatin vs. Campos, 92 SCRA 258. 3 Ellis vs. Republic, 7 SCRA 962. 4 Santos vs. Aranzanso, 16 SCRA 344.
1 2
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in accordance with Philippine laws, the United Nations (UN) Convention on the Rights of the Child, UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally, and the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption. (b) The State shall provide alternative protection and assistance through foster care or adoption for every child who is a foundling, neglected, orphaned, or abandoned. To this end, the State shall: (i) ensure that every child remains under the care and custody of his parents and is provided with love, care, understanding and security for the full and harmonious development of his personality. Only when such efforts prove insufficient and no appropriate placement or adoption within the childs extended family is available shall adoption by an unrelated person be considered; (ii) safeguard the biological parents from making hasty decisions in relinquishing their parental authority over their child; (iii) prevent the child from unnecessary separation from his biological parents; (iv) conduct public information and educational campaigns to promote a positive environment for adoption; (v) ensure that government and private sector agencies have the capacity to handle adoption inquiries, process domestic adoption applications and offer adoption-related services including, but not limited to, parent preparation and post-adoption education and counseling; (vi) encourage domestic adoption so as to preserve the childs identity and culture in his
Sec. 3
RULE ON ADOPTION [A.M. No. 02-6-02-SC]
181
native land, and only when this is not available shall inter-country adoption be considered as a last resort; and (vii) protect adoptive parents from attempts to disturb their parental authority and custody over their adopted child. Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared so as to establish the status of the child as legally available for adoption and his custody transferred to the Department of Social Welfare and Development or to any duly licensed and accredited child-placing or child-caring agency, which entity shall be authorized to take steps for the permanent placement of the child. Sec. 3. Definition of Terms. For purposes of this Rule: (a) Child is a person below eighteen (18) years of age at the time of the filing of the petition for adoption. (b) A child legally available for adoption refers to a child who has been voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his biological parents, or in case of rescission of adoption, his guardian or adopter(s). (c) Voluntarily committed child is one whose parents knowingly and willingly relinquish parental authority over him in favor of the Department. (d) Involuntarily committed child is one whose parents, known or unknown, have been permanently and judicially deprived of parental authority over him due to abandonment; substantial, continuous or repeated neglect and abuse; or incompetence to discharge parental responsibilities. (e) Foundling refers to a deserted or abandoned infant or child whose parents, guardian or
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relatives are unknown; or a child committed to an orphanage or charitable or similar institution with unknown facts of birth and parentage and registered in the Civil Register as a foundling. (f) Abandoned child refers to one who has no proper parental care or guardianship or whose parents have deserted him for a period of at least six (6) continuous months and has been judicially declared as such. (g) Dependent child refers to one who is without a parent, guardian or custodian or one whose parents, guardian or other custodian for good cause desires to be relieved of his care and custody and is dependent upon the public for support. (h) Neglected child is one whose basic needs have been deliberately not attended to or inadequately attended to, physically or emotionally, by his parents or guardian. (i) Physical neglect occurs when the child is malnourished, ill-clad and without proper shelter. (j) Emotional neglect exists when a child is raped, seduced, maltreated, exploited, overworked or made to work under conditions not conducive to good health or made to beg in the streets or public places, or placed in moral danger, or exposed to drugs, alcohol, gambling, prostitution and other vices. (k) Child-placement agency refers to an agency duly licensed and accredited by the Department to provide comprehensive child welfare services including, but not limited to, receiving applications for adoption, evaluating the prospective adoptive parents and preparing the adoption home study report. (l) Child-caring agency refers to an agency duly licensed and accredited by the Department that provides 24-hour residential care services for abandoned, orphaned, neglected or voluntarily committed children.
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(m) Department refers to the Department of Social Welfare and Development. (n) Deed of Voluntary Commitment refers to the written and notarized instrument relinquishing parental authority and committing the child to the care and custody of the Department executed by the childs biological parents or in their absence, mental incapacity or death, by the childs legal guardian, to be witnessed by an authorized representative of the Department after counseling and other services have been made available to encourage the biological parents to keep the child. (o) Child Study Report refers to a study made by the court social worker of the childs legal status, placement history, psychological, social, spiritual, medical, ethno-cultural background and that of his biological family needed in determining the most appropriate placement for him. (p) Home Study Report refers to a study made by the court social worker of the motivation and capacity of the prospective adoptive parents to provide a home that meets the needs of a child. (q) Supervised trial custody refers to the period of time during which a social worker oversees the adjustment and emotional readiness of both adopters and adoptee in stabilizing their filial relationship. (r) Licensed Social Worker refers to one who possesses a degree in bachelor of science in social work as a minimum educational requirement and who has passed the government licensure examination for social workers as required by Republic Act No. 4373. (s) Simulation of birth is the tampering of the civil registry to make it appear in the birth records that a certain child was born to a person who is not his biological mother, thus causing such child to lose his true identity and status. (t) Biological Parents refer to the childs mother and father by nature.
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(u) Pre-Adoption Services refer to psychosocial services provided by professionally-trained social workers of the Department, the social services units of local governments, private and government health facilities, Family Courts, licensed and accredited child-caring and child-placement agencies and other individuals or entities involved in adoption as authorized by the Department. (v) Residence means a persons actual stay in the Philippines for three (3) continuous years immediately prior to the filing of a petition for adoption and which is maintained until the adoption decree is entered. Temporary absences for professional, business, health, or emergency reasons not exceeding sixty (60) days in one (1) year does not break the continuity requirement. (w) Alien refers to any person, not a Filipino citizen, who enters and remains in the Philippines and is in possession of a valid passport or travel documents and visa. Sec. 4. Who may adopt. The following may adopt: (1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude; who is emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his children in keeping with the means of the family. The requirement of a 16-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptees parent; (2) Any alien possessing the same qualifications above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption
Sec. 4
185
and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child: Provided, further, That the requirements on residency and certification of the aliens qualification to adopt in his country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate child of his Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse. (3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. Husband and wife shall jointly adopt, except in the following cases: (i) if one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or (ii) if one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or (iii) if the spouses are legally separated from each other. In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses.
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Secs. 2-4
QUALIFICATIONS. Section 4(1) is lifted from Section 7(a) of the Domestic Adoption Law.1 It specifies the general qualifications of Filipinos who may adopt. Hence, for as long as the statutory qualifications, exclusions and requirements for adoption are met, relatives by blood or affinity are not excluded from adopting one another.2 An individual who has already adopted a child or who has legitimate or illegitimate children may still adopt.3 An elder sister can adopt a younger brother4 and a stepfather may adopt his stepchild.5 It must be importantly emphasized however that as a policy of the state, all measures to maintain the natural parents authority and custody of their children must be encouraged and implemented. Only when such efforts prove to be insufficient and no appropriate placement or adoption within the childs extended family is available shall adoption by an unrelated person be considered.6 AGE DIFFERENCE. The present provision, as a general rule, requires an age difference of at least 16 years between the adopter and the adopted. This is a modification of the 15-year difference set under the Child and Youth Welfare Code and an adherence to the age gap provided for in the repealed section on adoption of the Family Code. It was previously set at 15 years for the reason that it was the median age of the old marriageable ages of 14 for females and 16 for males. Fifteen was deemed to be proper to approximate, as much as possible, natural filiation. With this purpose in mind, and since the marriageable age has been raised to 18 years, the Civil Code Committee which drafted the Family Code proposed originally to raise the age difference to 18 years. However, it was pointed out that raising the age difference requirement would result in the disqualification of a lot of prospective adopters. An 18-year difference was argued to be too wide. The trade-off was between trying to approximate natural filiation against that of disqualifying a lot of prospective adopters which was pointed out to be inconsistent with the principle that adoption be for the benefit of the child. The present age difference of 16 years is a compromise solution to the problem.
Republic Act No. 8552. Santos vs. Republic, 21 SCRA 379. 3 Hofilena vs. Republic, 34 SCRA 545. 4 Tavera vs. Cacdac, 167 SCRA 636. 5 Malkinson vs. Agrava, 54 SCRA 66. 6 Section 2, Article 1 of Republic Act No. 8552.
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CONVICTION AND PARDON. Conviction is necessary because a person is presumed innocent until proven guilty. Pardon will erase the disqualification since the provision refers to the fact of conviction and not to the penalty imposed. The term moral turpitude is in connection with ones ability to rear the child so it will not be affected by pardon.7 ALIENS. Aliens, whether resident or non-resident, can generally adopt for as long as they have all the qualifications possessed by a Filipino national to adopt. This is a departure from the general rule under the repealed provisions on adoption in the Family Code which prohibited aliens to adopt. However, there are added conditions required of aliens, to wit:
a) His/her country has diplomatic relations with the Republic of the Philippines. If the Philippines has previously broken relations with a country but resumes diplomatic relations, this will satisfy the requirement. The requirement of the existence of diplomatic relations is very important so that the Philippines can monitor the progress of a Filipino adoptee in a foreign land in the event the alien adopter brings the Filipino adoptee in his or her own country. This is also for the benefit of the Filipino-adoptee. In case he or she is maltreated, he or she can always go to the Philippine embassy to seek assistance. b) He/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered. An adoption decree is entered only if such decree has become final and executory. c) He/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter. The Philippines follow the nationality rule as to family rights and duties, or to status, conditions and legal capacity of persons.
The requirements on residency and certification of the aliens qualification to adopt in his/her country may be waived in case the alien intending to adopt is either of the following:
7 Sta. Maria, PERSONS AND FAMILY RELATIONS LAW, 1999 edition, Page 605, citing discussions of Committees on the Revision of the Civil Code.
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Secs. 2-4
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or
It must be observed that the waiver is not automatic but clearly discretionary. Hence, depending on the appreciation of the court or the proper administrative body, the waiver of the requirement of residency and certification may or may not be allowed. The determining point in resolving this issue is the paramount interest of the child. Moreover, considering that they are exceptions, they must be strictly construed. For example, a United States citizen, who has been formerly a Filipina and is presently married to an American, arrives in the Philippines. Within a year, the American husband and his former Filipina spouse file a case to jointly adopt the younger Filipino brother of his spouse. They cannot be granted a waiver of the residency and certification requirements because they do not fall under the exceptions. In the first place, the husband is not a former Filipino citizen but a natural born citizen of the United States of America. In the second place, the child to be adopted is not the legitimate child of his spouse. In the third place, when the spouses jointly filed the petition to adopt the wifes Filipino brother (who is a relative of the wife within the fourth civil degree of consanguinity), the said wife was no longer a Filipino citizen.8 However, if the said spouses really want to adopt, they can avail of the Inter-Country Adoption Law if applicable to their case. If a Filipino adopts an alien, the adopted alien does not acquire Philippine citizenship because such acquisition of citizenship acquires the character of naturalization which is regulated, not by the Civil Code or the Family Code, but by special laws.9 JOINT ADOPTION. According to the Supreme Court, joint adoption is more attuned to the legal concept of parental authority.
This is in consonance with the concept of joint parental authority over the child, which is the ideal situation. As the child
8 See Republic of the Philippines vs. Honorable Rodolfo Toledano, et al., G.R. No. 94147, June 8, 1994, 52 SCAD 124. 9 Ching Leng vs. Galang, L-11931, October 27, 1958.
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to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.10
Also, during the deliberations on the Family Code by the Civil Code and Family Law Committees,
Justice Caguioa suggested that they make it mandatory that husband and wife jointly adopt since if they allow one to adopt only with the written consent of the other, it would go against the concept of joint parental authority.11
Sec. 5. Who may be adopted. The following may be adopted: (1) Any person below eighteen (18) years of age who has been voluntarily committed to the Department under Articles 154, 155 and 156 of P.D. No. 603 or judicially declared available for adoption; (2) The legitimate child of one spouse, by the other spouse; (3) An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy; (4) A person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority; (5) A child whose adoption has been previously rescinded; or (6) A child whose biological or adoptive parents have died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parents. (7) A child not otherwise disqualified by law or these rules.
10 Republic vs. Toledano, et al., G.R. No. 94147, June 8, 1994, 52 SCAD 124. 11 Minutes of the 180th Joint Meeting of the Civil Code and Family Law Committees held on April 9, 1987, Page 18.
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Secs. 6-7
Sec. 6. Venue. The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside. Sec. 7. Contents of the Petition. The petition shall be verified and specifically state at the heading of the initiatory pleading whether the petition contains an application for change of name, rectification of simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned, dependent or neglected. 1) If the adopter is a Filipino citizen, the petition shall allege the following: (a) The jurisdictional facts; (b) That the petitioner is of legal age, in possession of full civil capacity and legal rights; is of good moral character; has not been convicted of any crime involving moral turpitude; is emotionally and psychologically capable of caring for children; is at least sixteen (16) years older than the adoptee, unless the adopter is the biological parent of the adoptee or is the spouse of the adoptees parent; and is in a position to support and care for his children in keeping with the means of the family and has undergone pre-adoption services as required by Section 4 of Republic Act No. 8552. 2) If the adopter is an alien, the petition shall allege the following: (a) The jurisdictional facts; (b) Sub-paragraph 1(b) above;
(c) That his country has diplomatic relations with the Republic of the Philippines; (d) That he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country and his government allows the adoptee to enter his country as his
Sec. 7
191
adopted child and reside there permanently as an adopted child; and (e) That he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition and he maintains such residence until the adoption decree is entered. The requirements of certification of the aliens qualification to adopt in his country and of residency may be waived if the alien: (i) is a former Filipino citizen who seeks to adopt a relative within the fourth degree of consanguinity or affinity; or (ii) seeks to adopt the legitimate child of his Filipino spouse; or (iii) is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth degree of consanguinity or affinity of the Filipino spouse. 3) If the adopter is the legal guardian of the adoptee, the petition shall allege that guardianship had been terminated and the guardian had cleared his financial accountabilities. 4) If the adopter is married, the spouse shall be a co-petitioner for joint adoption except if: (a) one spouse seeks to adopt the legitimate child of the other, or (b) if one spouse seeks to adopt his own illegitimate child and the other spouse signified written consent thereto, or (c) if the spouses are legally separated from each other. 5) If the adoptee is a foundling, the petition shall allege the entries which should appear in his birth certificate, such as name of child, date of birth, place of birth, if known; sex, name and citizenship of adoptive mother and father, and the date and place of their marriage.
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Sec. 7
6) If the petition prays for a change of name, it shall also state the cause or reason for the change of name. In all petitions, it shall be alleged: (a) The first name, surname or names, age and residence of the adoptee as shown by his record of birth, baptismal or foundling certificate and school records. (b) That the adoptee is not disqualified by law to be adopted. (c) The probable value and character of the estate of the adoptee. (d) The first name, surname or names by which the adoptee is to be known and registered in the Civil Registry. A certification of non-forum shopping shall be included pursuant to Section 5, Rule 7 of the 1997 Rules of Civil Procedure. FOUR IN ONE PETITION. Before the effectivity on August 22, 2002 of the new Rule on Adoption, the adoption process can involve as many as two different types of proceedings before an adoption decree can be issued. For example: F and M found X in a hospital. X was abandoned by his parents. F and M wanted to adopt X. Through some means, F and M were able to get the child and caused the issuance of a simulated birth certificate stating that X was their son. They took care of X. Subsequently, F and M decided to abide by the law and legally adopt X. F cannot immediately file a case for adoption or, if an adoption proceeding has already been filed, it shall be suspended. This is so because, prior to being adopted, an abandoned child must first be judicially declared as an abandoned child. The judicial declaration of abandonment was initiated by the Department of Social Welfare and Development (DSWD). Also, the simulated birth certificate of the child must first be cancelled rectified or connected. This judicial cancellation rectification or correction is to be done by the parties, who wanted to adopt the child, themselves. Hence, in the example, F and M have to wait for the issuance of a judicial declaration of abandonment emanating from a proceeding initiated by the DSWD and also a judicial cancellation rectification or correction of the simulated birth
Sec. 8
193
certificate emanating from another judicial proceeding initiated by them, namely F and M. Only after accomplishing these procedures can the adoption case commenced or, if it has already started, continue up to the point where the judicial decree of adoption is finally issued. The delay necessarily attending this kind of system is not in the best interest of the child. The new Rule on Adoption seeks to streamline all these by allowing in one petition for adoption an application for change of name, rectification of simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned, dependent or neglected. Sec. 8. Rectification of Simulated Birth. In case the petition also seeks rectification of simulated birth, it shall allege that: (a) Petitioner is applying for rectification of a simulated birth; (b) The simulation of birth was made prior to the date of effectivity of Republic Act No. 8552 and the application for rectification of the birth registration and the petition for adoption were filed within five years from said date; (c) The petitioner made the simulation of birth for the best interests of the adoptee; and (d) The adoptee has been consistently considered and treated by petitioner as his own child. RECTIFICATION OF SIMULATED BIRTH. Section 22 of the Domestic Adoption Act of 1998 provides that:
A person who has, prior to the effectivity of this Act, simulated the birth of a child shall be punished for such act: Provided, That the simulation of birth was made for the best interest of the child and that he/she has been consistently considered and treated by that person as his/her own son/daughter: Provided, further, That the application for correction of the birth registration and the petition for adoption shall be filed within five (5) years from the effectivity of this Act and completed thereafter: Provided, finally, That such person complies with the procedure as specified in Article IV of this Act and other requirements as determined by the Department.
194
Sec. 8
Section 8 of the Rule on Adoption seeks to implement the abovequoted provision. It must be pointed out however that Section 8s requirement letter (b) which is the filing of the application for rectification and the petition for adoption within five (5) years from the date of the effectivity of Republic Act No. 8552, which is merely a reiteration of the second proviso of Section 22 of the Domestic Adoption Act, cannot be made anymore as the five-year period had already expired. The Domestic Adoption Act of 1998 took effect in March of 1998 and therefore the five-year period had lapsed by April 2003. New legislation must be made to revive Section 22 of the Domestic Adoption Act. For a person therefore who wishes to adopt a child and who, at the same time, wishes to rectify a simulated birth certificate, he/she must file a separate judicial special proceeding for the cancellation or correction of entry pursuant to Rule 108 of the Rules of Court. However, the filing of the said petition will not anymore entitle him or her to the immunity-privilege granted under Section 22 of the Domestic Adoption Act against any relevant criminal charge like falsification of public document under the Revised Penal Code. The person seeking rectification can now be subjected to criminal prosecution. For reference, hereunder are the pertinent Sections of Rule 108 of the Rules of Court.
Rule 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY SECTION 1. Who may file petition. Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance of the province where the corresponding civil registry is located. SEC. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.
Sec. 9
195
SEC. 3. Parties. When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. SEC. 5. Opposition. The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. SEC. 6. Expediting proceedings. The court in which the proceeding is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. SEC. 7. Order. After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.
Sec. 9. Adoption of a foundling, an abandoned, dependent or neglected child. In case the adoptee is a foundling, an abandoned, dependent or neglected child, the petition shall allege: (a) The facts showing that the child is a foundling, abandoned, dependent or neglected; (b) The names of the parents, if known, and their residence. If the child has no known or living parents, then the name and residence of the guardian, if any; (c) The name of the duly licensed child-placement agency or individual under whose care the child is in custody; and
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Sec. 9
(d) That the Department, child-placement or child-caring agency is authorized to give its consent. ABANDONED, FOUNDLING OR NEGLECTED CHILD. Section 3(e) of the Domestic Adoption Act of 1998 defines an abandoned child as referring to one who has no proper parental care or guardianship or whose parent(s) has deserted him/her for a period of at least six (6) months and has been judicially declared as such. This definition is reiterated in Section 3(f) of the Rules. By definition therefore, there should already have been a judicial declaration that the child is an abandoned child even before the issuance of the adoption decree. It is normally the Department of Social Welfare and Development (DSWD) which initiates the case for the judicial declaration of an abandoned child. In the judicial action, a directive shall also be issued for the childs involuntary commitment to the DSWD. After the judicial declaration of abandonment and the involuntary commitment of the child to the DSWD, the DSWD gets custody of the child and assumes parental authority. Only after such a judicial declaration can the child be considered as a child legally available for adoption. Under Section 9 of the new Rules, the petition for adoption can already allege that the child is one who has been abandoned by the parents. Hence, in the adoption proceeding, the judicial declaration of abandonment can already be made without filing a separate independent petition to do so. This is also true in case a person seeks a judicial declaration that the child is neglected or is a dependent child. However, considering that, by definition, an abandoned child must already have been judicially declared as such before the issuance of an adoption decree, there must technically be a prior partial judgment of declaration as an abandoned child before the issuance of the adoption decree in the main petition. Be that as it may, there appears to be no legal obstacle if the judicial finding and declaration of an abandoned child (as well as a neglected or dependent child) are simultaneously made with the main adoption decree. Significantly, if the childs biological parents cannot be known or located despite efforts to locate them exerted by the DSWD or any licensed child-placing or child-caring agency, the child must first be registered as a foundling prior to the judicial declaration of abandonment pursuant to Section 5 of the Domestic Adoption Act. For
Secs. 10-11
197
this purpose, a Foundling Certificate shall be issued by the Office of the Local Civil Registrar. Pursuant to Section 16 of the Rules, if the adoption is granted, the court shall order the Civil Registrar where the foundling was registered, to annotate the decree of adoption on the Foundling Certificate and a new birth certificate shall be ordered prepared by the Civil Registrar in accordance with the decree. Sec. 10. Change of name. In case the petition also prays for change of name, the title or caption must contain: (a) The registered name of the child; (b) Aliases or other names by which the child has been known; and (c) The full name by which the child is to be known. Sec. 11. Annexes to the Petition. The following documents shall be attached to the petition: A. Birth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee; B. Affidavit of consent of the following: The adoptee, if ten (10) years of age or 1. over;
2. The biological parents of the child, if known, or the legal guardian, or the childplacement agency, child-caring agency, or the proper government instrumentality which has legal custody of the child; 3. The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10) years of age or over; 4. The illegitimate children of the adopter living with him who are ten (10) years of age or over; and 5. The spouse, if any, of the adopter or adoptee.
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Secs. 10-11
C. Child study report on the adoptee and his biological parents; D. If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in his country and that his government allows the adoptee to enter his country as his own adopted child unless exempted under Section 4(2); E. Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; and F. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any. WRITTEN CONSENT. The State has the duty to foster and nurture a wholesome family unit that constitutes the nucleus of society. Considering that an adoption decree, with certain exceptions, introduces a stranger into an existing family unit, the mandatory written consent required by law is the States way of assuring itself that all the members of the family have been consulted and are amenable to the introduction of a new member in the home. Of paramount importance among the considerations of the State is the maintenance of harmony within the family and the avoidance of any conflict which may arise as a result of the adoption. By requiring consent, the adopter psychologically and emotionally prepares the members of the family to the idea of adoption instead of forcefully imposing upon them the adoptee, without prior consultation. In Tan Suarez vs. Republic,1 it was held that the statement subscribed and sworn to before a notary public by the natural parents of the child sought to be adopted, wherein they expressed their conformity to the adoption of their minor child by the petitioner, was correctly admitted as evidence in an adoption proceeding, although no testimonial evidence identifying the signatures on the said statement had been introduced by the petitioner, because such statement was duly authenticated and the other evidence on record strongly indicate

1
15 SCRA 543.
Sec. 12
199
that it is what it purports to be. Moreover, Section 9, just like the repealed provision of the Family Code and the Civil Code, does not require the court testimony of the persons whose consent is needed before the court. What is only needed under court procedures is that the written consent be attached to the petition.2 The adopter himself or herself can just testify that he obtained the consent of those persons whose consent are required and that such written consent has been attached to the petition. However, in Santos vs. Aranzanso,3 it was held that consent by the parents to the adoption is not an absolute requisite. If the natural parents have abandoned their children, consent by the guardian ad litem suffices. If the child is illegitimate, the consent can be given by the mother alone because, generally, parental authority is vested on the mother and also because, since paternity is disputable, an alleged father might turn out to be not the father and therefore, without any right at all to give the required consent. However, if the alleged father has already to acknowledged and admitted that the child is his and there is no reason to doubt the same, his consent must likewise be obtained especially if the father cohabits with the mother without benefit of a marriage or under a void marriage. Sec. 12. Order of Hearing. If the petition and attachments are sufficient in form and substance, the court shall issue an order which shall contain the following: (1) the registered name of the adoptee in the birth certificate and the names by which the adoptee has been known which shall be stated in the caption; (2) the purpose of the petition; (3) the complete name which the adoptee will use if the petition is granted; (4) the date and place of hearing which shall be set within six (6) months from the date of the issuance of the order and shall direct that a copy thereof be published before the date of hearing at least once a week for three successive weeks in a

2 3
Cathey vs. Republic, 18 SCRA 86. 16 SCRA 344.
200
Sec. 13
newspaper of general circulation in the province or city where the court is situated: Provided, That in case of application for change of name, the date set for hearing shall not be within four (4) months after the last publication of the notice nor within thirty (30) days prior to an election. The newspaper shall be selected by raffle under the supervision of the Executive Judge. (5) a directive to the social worker of the court, the social service office of the local government unit or any child-placing or child-caring agency, or the Department to prepare and submit child and home study reports before the hearing if such reports had not been attached to the petition due to unavailability at the time of the filing of the latter; and (6) a directive to the social worker of the court to conduct counseling sessions with the biological parents on the matter of adoption of the adoptee and submit her report before the date of hearing. At the discretion of the court, copies of the order of hearing shall also be furnished the Office of the Solicitor General through the provincial or city prosecutor, the Department and the biological parents of the adoptee, if known. If a change in the name of the adoptee is prayed for in the petition, notice to the Solicitor General shall be mandatory. Sec. 13. Child and Home Study Reports. In preparing the child study report on the adoptee, the concerned social worker shall verify with the Civil Registry the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the social worker to register the adoptee and secure a certificate of foundling or late registration, as the case may be. The social worker shall establish that the child is legally available for adoption and the documents
Secs. 14-15
201
in support thereof are valid and authentic, that the adopter has sincere intentions and that the adoption shall inure to the best interests of the child. In case the adopter is an alien, the home study report must show the legal capacity to adopt and that his government allows the adoptee to enter his country as his adopted child in the absence of the certification required under Section 7(b) of Republic Act No. 8552. If after the conduct of the case studies, the social worker finds that there are grounds to deny the petition, he shall make the proper recommendation to the court, furnishing a copy thereof to the petitioner. Sec. 14. Hearing. Upon satisfactory proof that the order of hearing has been published and jurisdictional requirements have been complied with, the court shall proceed to hear the petition. The petitioner and the adoptee must personally appear and the former must testify before the presiding judge of the court on the date set for hearing. The court shall verify from the social worker and determine whether the biological parent has been properly counseled against making hasty decisions caused by strain or anxiety to give up the child; ensure that all measures to strengthen the family have been exhausted; and ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest. Sec. 15. Supervised Trial Custody. Before issuance of the decree of adoption, the court shall give the adopter trial custody of the adoptee for a period of at least six (6) months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. The trial custody shall be monitored by the social worker of the court, the Department, or the social service of the local government unit, or the childplacement or child-caring agency which submitted
202
Sec. 16
and prepared the case studies. During said period, temporary parental authority shall be vested in the adopter. The court may, motu proprio or upon motion of any party, reduce the period or exempt the parties if it finds that the same shall be for the best interests of the adoptee, stating the reasons therefor. An alien adopter however must complete the 6-month trial custody except the following: a) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or b) one who seeks to adopt the legitimate child of his Filipino spouse; or c) one who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse the latters relative within the fourth (4th) degree of consanguinity or affinity. If the child is below seven (7) years of age and is placed with the prospective adopter through a pre-adoption placement authority issued by the Department, the court shall order that the prospective adopter shall enjoy all the benefits to which the biological parent is entitled from the date the adoptee is placed with him. The social worker shall submit to the court a report on the result of the trial custody within two weeks after its termination. Sec. 16. Decree of Adoption. If the supervised trial custody is satisfactory to the parties and the court is convinced from the trial custody report and the evidence adduced that the adoption shall redound to the best interests of the adoptee, a decree of adoption shall be issued which shall take effect as of the date the original petition was filed even if the petitioners die before its issuance. The decree shall:
Sec. 16
203
A. State the name by which the child is to be known and registered; B. Order: 1) the Clerk of Court to issue to the adopter a certificate of finality upon expiration of the 15-day reglementary period within which to appeal; 2) the adopter to submit a certified true copy of the decree of adoption and the certificate of finality to the Civil Registrar where the child was originally registered within thirty (30) days from receipt of the certificate of finality. In case of change of name, the decree shall be submitted to the Civil Registrar where the court issuing the same is situated; 3) the Civil Registrar of the place where the adoptee was registered: a. to annotate on the adoptees original certificate of birth the decree of adoption within thirty (30) days from receipt of the certificate of finality; b. to issue a certificate of birth which shall not bear any notation that it is a new or amended certificate and which shall show, among others, the following: registry number, date of registration, name of child, sex, date of birth, place of birth, name and citizenship of adoptive mother and father, and the date and place of their marriage, when applicable; c. to seal the original certificate of birth in the civil registry records which can be opened only upon order of the court which issued the decree of adoption; and d. to submit to the court issuing the decree of adoption proof of compliance with all the foregoing within thirty days from receipt of the decree.
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Secs. 17-18
If the adoptee is a foundling, the court shall order the Civil Registrar where the foundling was registered, to annotate the decree of adoption on the foundling certificate and a new birth certificate shall be ordered prepared by the Civil Registrar in accordance with the decree. MIDDLE NAME OF ADOPTED. While there is nothing in the Civil Code, the Family Code, The Domestic Adoption Law and the rules providing for the middle name which an adopted can use, the Supreme Court has held that, in a case where the father adopted his natural illegitimate child, the surname which can be used by the adopted is the maiden name of the natural mother. This was allowed by the Supreme Court even if the parental authority of the natural mother was already terminated due to the adoption.1 Sec. 17. Book of Adoptions. The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each case, compliance by the Civil Registrar with Section 16(B)(3) and all incidents arising after the issuance of the decree. Sec. 18. Confidential Nature of Proceedings and Records. All hearings in adoption cases, after compliance with the jurisdictional requirements shall be confidential and shall not be open to the public. All records, books and papers relating to the adoption cases in the files of the court, the Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential. If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used.
1 In The Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005.
Secs. 17-19
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Sec. 19. Rescission of Adoption of the Adoptee. The petition shall be verified and filed by the adoptee who is over eighteen (18) years of age, or with the assistance of the Department, if he is a minor, or if he is over eighteen (18) years of age but is incapacitated, by his guardian or counsel. The adoption may be rescinded based on any of the following grounds committed by the adopter: 1) repeated physical and verbal maltreatment by the adopter despite having undergone counseling; 2) 3) attempt on the life of the adoptee; sexual assault or violence; or
4) abandonment or failure to comply with parental obligations. Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code. RESCISSION. Only the adoptee is given legal standing to rescind an adoption decree. If the adoptee is a minor, he or she shall be assisted by the Department of Social Welfare. If he or she is exactly 18 years of age, the adoptee is already emancipated. Nevertheless, the law still requires that the said 18-year-old adoptee must still be assisted by the Department of Social Welfare. If the adoptee is over 18 years of age but incapacitated, the department shall act as his or her guardian or counsel. If the adoptee is over 18 years of age and not incapacitated, he or she is qualified to do all acts of civil life and therefore he or she can file an action for rescission without the assistance of the Department of Social Welfare. Rescission contemplates a situation where the adoption decree is valid up to the time of its termination. A rescinded adoption decree is different from a void decree because the latter contemplates a situation where the judgment is invalid from the beginning. If the adoption decree is void, it can be assailed in a direct proceeding by any interested party such as the biological parent whose consent was not obtained.
206
Secs. 17-19
MALTREATMENT. Repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling is a ground for rescission. This ground connotes the incorrigible nature of the adopters character considering that, having undergone counseling, the adopter still continues to maltreat the adopted in such tormenting and injurious manner. The adopted is entitled to have a wholesome family life. Corollarily, he or she is entitled to be removed from a destructive environment induced or created by the adopter(s). ATTEMPT ON LIFE. Attempt on the life of the adoptee is a very serious ground. It is criminal. It endangers the life of the adoptee. An adopter who commits an act designed to terminate the life of his or her own adopted child directly contravenes the purpose of adoption which is to provide the adoptee with a family environment that will ensure a productive life on the part of the adoptee. SEXUAL ASSAULT OR VIOLENCE. A person who adopts a child and subjects the same to sexual assault or violence does not deserve to continue acting as the adoptive parent. The highly detrimental psychological trauma after such sexual assault or violence can linger for quite a long period of time and may even have an effect on the character and mental well-being of the adopted in his or her adult years. Sexual assault or violence by the adopter on the adopted is a perverse act and the adopted must be immediately removed from an environment that easily subjects him or her to such assault or violence. ABANDONMENT. Abandonment and failure to comply with parental duties also directly negate the purpose of adoption of providing the adoptee with a wholesome and productive family life. An adopter becomes the parent of the adoptee. If the adopter cannot perform his or her duties and responsibilities as a parent, the adoption decree should be terminated. Abandonment connotes a willful and deliberate act of foregoing all parental duties. Failure to comply with parental duties may be intentional or a result of negligence. DISINHERITANCE OF ADOPTEE. While an adopter cannot rescind an adoption decree, he or she is given the right to disinherit the adoptee. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified (Article 916 of the Civil Code). The acts constituting legal causes for disinheriting a descendant enumerated in Article 919 of the Civil Code are the following:
Secs. 20-22
207
1. When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants or ascendants; 2. When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; 3. When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; 4. When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; 5. A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendants; 6. Maltreatment of the testator by word or deed, by the child or descendant; 7. When a child or descendant leads a dishonorable or disgraceful life; 8. Conviction of a crime which carries with it the penalty of civil interdiction.
If the adoptee has given rise to a legal cause for disinheritance, a subsequent reconciliation between him and the adopter deprives the adopter of the right to disinherit, and renders ineffectual any disinheritance that may have been made.1 Sec. 20. Venue. The petition shall be filed with the Family Court of the city or province where the adoptee resides. Sec. 21. Time within which to file petition. The adoptee, if incapacitated, must file the petition for rescission or revocation of adoption within five (5) years after he reaches the age of majority, or if he was incompetent at the time of the adoption, within five (5) years after recovery from such incompetency. Sec. 22. Order to Answer. The court shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of
1
See Article 922 of the Civil Code.
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Secs. 23-24
a copy thereof. The order and copy of the petition shall be served on the adverse party in such manner as the court may direct. Sec. 23. Judgment. If the court finds that the allegations of the petition are true, it shall render judgment ordering the rescission of adoption, with or without costs, as justice requires. The court shall order that the parental authority of the biological parent of the adoptee, if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated and declare that the reciprocal rights and obligations of the adopter and the adoptee to each other shall be extinguished. The court shall further declare that successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected. It shall also order the adoptee to use the name stated in his original birth or foundling certificate. The court shall further order the Civil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate his original birth or foundling certificate. Sec. 24. Service of Judgment. A certified true copy of the judgment together with a certificate of finality issued by the Branch Clerk of the Court which rendered the decision in accordance with the preceding Section shall be served by the petitioner upon the Civil Registrar concerned within thirty (30) days from receipt of the certificate of finality. The Civil Registrar shall forthwith enter the rescission decree in the register and submit proof of compliance to the court issuing the decree and the Clerk of Court within thirty (30) days from receipt of the
Secs. 25-30
209
decree. The Clerk of Court shall enter the compliance in accordance with Section 17 hereof. Sec. 25. Repeal. This supersedes Rule 99 on Adoption and Rule 100 of the Rules of Court.
B. INTER-COUNTRY ADOPTION
Sec. 26. Applicability. The following sections apply to inter-country adoption of Filipino children by foreign nationals and Filipino citizens permanently residing abroad. Sec. 27. Objectives. The State shall:
a) consider inter-country adoption as an alternative means of child care, if the child cannot be placed in a foster or an adoptive family or cannot, in any suitable manner, be cared for in the Philippines; b) ensure that the child subject of inter-country adoption enjoys the same protection accorded to children in domestic adoption; and c) take all measures to ensure that the placement arising therefrom does not result in improper financial gain for those involved. Sec. 28. Where to File Petition. A verified petition to adopt a Filipino child may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found. It may be filed directly with the Inter-Country Adoption Board. Sec. 29. Who may be adopted. Only a child legally available for domestic adoption may be the subject of inter-country adoption. Sec. 30. Contents of Petition. The petitioner must allege:
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Sec. 30
a) his age and the age of the child to be adopted, showing that he is at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted at the time of application, unless the petitioner is the parent by nature of the child to be adopted or the spouse of such parent, in which case the age difference does not apply; b) if married, the name of the spouse who must be joined as co-petitioner except when the adoptee is a legitimate child of his spouse; c) that he has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his country; d) that he has not been convicted of a crime involving moral turpitude; e) that he is eligible to adopt under his national law; f) that he can provide the proper care and support and instill the necessary moral values and example to all his children, including the child to be adopted; g) that he agrees to uphold the basic rights of the child, as embodied under Philippine laws and the UN Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of Republic Act No. 8043; h) that he comes from a country with which the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption of a Filipino child is allowed under his national laws; and i) that he possesses all the qualifications and none of the disqualifications provided in this Rule, in Republic Act No. 8043 and in all other applicable Philippine laws.
Secs. 31-33
211
Sec. 31. Annexes. The petition for adoption shall contain the following annexes written and officially translated in English: a) Birth certificate of petitioner; b) Marriage contract, if married, and, if applicable, the divorce decree, or judgment dissolving the marriage; c) Sworn statement of consent of petitioners biological or adopted children above ten (10) years of age; d) Physical, medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist; e) Income tax returns or any authentic document showing the current financial capability of the petitioner; f) Police clearance of petitioner issued within six (6) months before the filing of the petitioner; g) Character reference from the local church/ minister, the petitioners employer and a member of the immediate community who have known the petitioner for at least five (5) years; h) Full body postcard-size pictures of the petitioner and his immediate family taken at least six (6) months before the filing of the petition. Sec. 32. Duty of Court. The court, after finding that the petition is sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the Inter-Country Adoption Board for appropriate action. Sec. 33. Effectivity. This Rule shall take effect on August 22, 2002 following its publication in a newspaper of general circulation.
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RULE ON EXAMINATION OF A CHILD WITNESS

SECTION 1. Applicability of the Rule. Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses. SEC. 2. Objectives. The objectives of this Rule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth. SEC. 3. Construction of the Rule. This Rule shall be liberally construed to uphold the best interests of the child and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused. SEC. 4. Definitions.
(a) A child witness is any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. (b) Child abuse means physical, psychological, or sexual abuse, and criminal neglect as defined in Republic Act No. 7610 and other related laws.
212
Sec. 4
213
(c) Facilitator means a person appointed by the court to pose questions to a child. (d) Record regarding a child or record means any photograph, videotape, audiotape, film, handwriting, typewriting, printing, electronic recording, computer data or printout, or other memorialization, including any court document, pleading, or any copy or reproduction of any of the foregoing, that contains the name, description, address, school, or any other personal identifying information about a child or his family and that is produced or maintained by a public agency, private agency, or individual. (e) A guardian ad litem is a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interests of the said child. (f) A support person is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. (g) Best interests of the child means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. (h) Developmental level refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities. (i) In-depth investigative interview or disclosure interview is an inquiry or proceeding conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services for the purpose of
214
Sec. 5
determining whether child abuse has been committed. SEC. 5. Guardian ad litem.
(a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of the Philippine Bar. A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem. (b) The guardian ad litem: (1) Shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates;

(2) Shall make recommendations to the court concerning the welfare of the child; (3) Shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications; (4) Shall marshal and coordinate the delivery of resources and special services to the child; (5) Shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved; (6) Shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved; (7) May remain with the child while the child waits to testify;
Sec. 6
215
(8) May interview witnesses; and
(9) May request additional examinations by medical or mental health professionals if there is a compelling need therefor. (c) The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level. (d) The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose. (e) The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child. (f) The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in sub-section (b). SEC. 6. Competency. Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. (a) Proof of necessity. A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. (b) Burden of proof. To rebut the presumption of competence enjoyed by a child, the burden
216
Secs. 7-8
of proof lies on the party challenging his competence. (c) Persons allowed at competency examination. Only the following are allowed to attend a competency examination:

nel;
(1) The judge and necessary court person(2) The counsel for the parties; (3) The guardian ad litem;
(4) One or more support persons for the child; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence. (d) Conduct of examination. Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. (e) Developmentally appropriate questions. The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (f) Continuing duty to assess competence. The court has the duty of continuously assessing the competence of the child throughout his testimony. SEC. 7. Oath or affirmation. Before testifying, a child shall take an oath or affirmation to tell the truth. SEC. 8. Examination of a child witness. The examination of a child witness presented in a hearing or any proceeding shall be done in open court.
Secs. 9-10
217
Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule. SEC. 9. Interpreter for child.
(a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child. (b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. (c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation. SEC. 10. Facilitator to pose questions to child.
(a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative. (b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the
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Secs. 11-12
child and which convey the meaning intended by counsel. (c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel.

SEC. 11. Support persons.
(a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. (1) Both support persons shall remain within the view of the child during his testimony. (2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer. (3) The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings. (4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony. (b) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child. (c) If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child. SEC. 12. Waiting area for child witnesses. The courts are encouraged to provide a waiting area for children that is separate from waiting areas used by
Secs. 13-16
219
other persons. The waiting area for children should be furnished so as to make a child comfortable. SEC. 13. Courtroom environment. To create a more comfortable environment for the child, the court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe. Nothing in this section or any other provision of law, except official in-court identification provisions, shall be construed to require a child to look at the accused. Accommodations for the child under this section need not be supported by a finding of trauma to the child. SEC. 14. Testimony during appropriate hours. The court may order that the testimony of the child should be taken during a time of day when the child is well-rested. SEC. 15. Recess during testimony. The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross-examinations as often as necessary depending on his developmental level. SEC. 16. Testimonial aids. The court shall permit a child to use dolls, anatomically-correct
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Secs. 17-23
dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony. SEC. 17. Emotional security item. While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll. SEC. 18. Approaching the witness. The court may prohibit a counsel from approaching a child if it appears that the child is fearful of or intimidated by the counsel. SEC. 19. Mode of questioning. The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time. The court may allow the child witness to testify in a narrative form. SEC. 20. Leading questions. The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. SEC. 21. Objections to questions. Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. SEC. 22. Corroboration. Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases. SEC. 23. Excluding the public. When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the
Secs. 24-25
221
press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. In making its order, the court shall consider the developmental level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties. SEC. 24. Persons prohibited from entering and leaving courtroom. The court may order that persons attending the trial shall not enter or leave the courtroom during the testimony of the child. SEC. 25. Live-link television testimony in criminal cases where the child is a victim or a witness. (a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television. Before the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad litem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order.
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Sec. 25
The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable. (b) The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television. (c) The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom. (d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child. (e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors: (1) The age and level of development of the child;

(2) His physical and mental health, including any mental or physical disability; (3) Any physical, emotional, or psychological injury experienced by him; (4) The nature of the alleged abuse; (5) Any threats against the child;
(6) His relationship with the accused or adverse party; (7) His reaction to any prior encounters with the accused in court or elsewhere; (8) His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals;
Sec. 25
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(9) Specific symptoms of stress exhibited by the child in the days prior to testifying; es; (10) Testimony of expert or lay witness-
(11) The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and (12) Other relevant factors, such as court atmosphere and formalities of court procedure. (f) The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child. (g) If the court orders the taking of testimony by live-link television: (1) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child; (2) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded.
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Secs. 26-27
(3) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. (4) The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child. (h) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in section 31(b). SEC. 26. Screens, one-way mirrors, and other devices to shield child from accused. (a) The prosecutor or the guardian ad litem may apply for an order that the chair of the child or that a screen or other device be placed in the courtroom in such a manner that the child cannot see the accused while testifying. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a) of this Rule. The court shall issue an order stating the reasons and describing the approved courtroom arrangement. (b) If the court grants an application to shield the child from the accused while testifying in the courtroom, the courtroom shall be arranged to enable the accused to view the child. SEC. 27. Videotaped deposition.
(a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the
Sec. 27
225
guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a). (b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. (c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are: (1) The prosecutor; (2) The defense counsel; (3) The guardian ad litem;
(4) The accused, subject to sub-section (e); (5) Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child; (6) One or both of his support persons, the facilitator and interpreter, if any; (7) The court stenographer; and (8) Persons necessary to operate the videotape equipment. (d) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition. (e) If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which
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Sec. 28
the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused. (f) The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. (g) The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors. (h) The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section 31(b). (i) If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this Rule, or is unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor. (j) After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence. SEC. 28. Hearsay exception in child abuse cases. A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in
Sec. 28
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evidence in any criminal or non-criminal proceeding subject to the following rules: (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was spontaneous; (5) The timing of the statement and the relationship between the declarant child and witness; (6) Cross-examination could not show the lack of knowledge of the declarant child; (7) The possibility of faulty recollection of the declarant child is remote; and (8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused.
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Sec. 29
(c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. SEC. 29. Admissibility of videotaped and audiotaped in-depth investigative or disclosure interviews in child abuse cases. The court may admit videotape and audiotape in-depth investigative or disclosure interviews as evidence, under the following conditions: (a) The child witness is unable to testify in court on grounds and under conditions established under section 28(c). (b) The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred. (c) The party offering the videotape or audiotape must prove that: (1) the videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; (2) the statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion;
Sec. 30
Rule on Examination of a Child Witness
229
(3) the videotape and audiotape machine or device was capable of recording testimony; (4) the person operating the device was competent to operate it; (5) the videotape or audiotape is authentic and correct; and (6) it has been duly preserved. The individual conducting the interview of the child shall be available at trial for examination by any party. Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings. The fact that an investigative interview is not videotaped or audiotaped as required by this section shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse. SEC. 30. Sexual abuse shield rule.
(a) Inadmissible evidence. The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove the sexual predisposition of the alleged victim. (b) Exception. Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. A party intending to offer such evidence must:
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Sec. 31
(1) File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion. Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent. SEC. 31. Protection of privacy and safety.
(a) Confidentiality of records. Any record regarding a child shall be confidential and kept under seal. Except upon written request and order of the court, a record shall only be released to the following: (1) Members of the court staff for administrative use; (2) The prosecuting attorney; (3) Defense counsel; (4) The guardian ad litem;
(5) Agents of investigating law enforcement agencies; and (6) Other persons as determined by the court. (b) Protective order. Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows:
Sec. 31
Rule on Examination of a Child Witness
231
(1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem. (2) No tape, or any portion thereof, shall be divulged by any person mentioned in sub-section (a) to any other person, except as necessary for the trial. (3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court. (4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice: This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law. (5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. (6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party.
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Sec. 31
(7) This protective order shall remain in full force and effect until further order of the court. (c) Additional protective orders. The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child. (d) Publication of identity contemptuous. Whoever publishes or causes to be published in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall be liable to the contempt power of the court. (e) Physical safety of child; exclusion of evidence. A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. The court may, however, require the child to testify regarding personal identifying information in the interest of justice. (f) Destruction of videotapes and audiotapes. Any videotape or audiotape of a child produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after five (5) years have elapsed from the date of entry of judgment. (g) Records of youthful offender. Where a youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. Where a youthful offender has been charged and the court acquits him, or dismisses the case
Secs. 32-33
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or commits him to an institution and subsequently releases him pursuant to Chapter 3 of P.D. No. 603, all the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone except to determine if a defendant may have his sentence suspended under Article 192 of P.D. No. 603 or if he may be granted probation under the provisions of P.D. No. 968 or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose. Records within the meaning of this sub-section shall include those which may be in the files of the National Bureau of Investigation and with any police department or government agency which may have been involved in the case. (Art. 200, P.D. No. 603) SEC. 32. Applicability of ordinary rules. The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character. SEC. 33. Effectivity. This Rule shall take effect on December 15, 2000 following its publication in two (2) newspapers of general circulation.
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Secs. 32-33
RULE ON JUVENILES IN CONFLICT WITH THE LAW

[A.M. No. 02-1-18-SC]
Section 1. Applicability of the Rule. This Rule shall apply to all criminal cases involving juveniles in conflict with the law. A juvenile in conflict with the law is a person who at the time of the commission of the offense is below eighteen (18) years of age but not less than nine (9) years of age. This Rule shall not apply to an accused who at the time of initial contact as defined in Section 4(p) of this Rule, or at any time thereafter, shall have reached the age of eighteen (18), in which case the regular rules on criminal procedure shall apply without prejudice to the rights granted under Sections 36, 37, 38 and 39 of this Rule. (n) Sec. 2. Objective. The objective of this Rule is to ensure that the justice system treats every juvenile in conflict with the law in a manner that recognizes and upholds his human dignity and worth, and instills in him respect for the fundamental rights and freedoms of others. The Rule considers his developmental age and the desirability of his reintegration into and assumption of a constructive role in society in accordance with the principle of restorative justice. To attain this objective, the Rule seeks: a) To provide a procedure in the adjudication of juveniles in conflict with the law that takes into account their distinct circumstances and assures
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Secs. 3-4
RULE ON JUVENILES IN CONFLICT WITH THE LAW [A.M. No. 02-1-18-SC]
235
the parties of a fair hearing with their constitutional and statutory rights recognized and respected; b) To divert from the justice system juveniles who can be cared for or placed under communitybased alternative programs of treatment, training and rehabilitation in conformity with the principle of restorative justice; c) To deal with the juvenile in a family environment whenever possible, separate him from his parents only when necessary for his welfare or in the interest of public safety; d) To remove from juveniles in conflict with the law the stigma of criminality and the consequences of criminal behavior; and e) To provide for the care, protection and wholesome moral, mental, and physical development of juveniles in conflict with the law. Sec. 3. Interpretation. This Rule shall be interpreted liberally to promote the best interests of the child in conformity with Philippine laws and the United Nations Convention on the Rights of the Child. Sec. 4. Definitions. As used in this Rule:
(a) To be in conflict with the law means being charged with the commission of an act defined and punished as a crime or offense under the law, including violations of traffic laws, rules and regulations, and ordinances of local government units. (b) Serious offense refers to any offense not covered by Section 1, par. B, criminal cases, of the Rule on Summary Procedure, to wit: (1) violations of traffic laws, rules and regulations; (2) violations of the rental law; (3) violations of municipal or city ordinances; (4) all other offenses punished with imprisonment not exceeding six months, or a fine not exceeding one thousand pesos (P1,000.00), or both, irrespective of other imposable penalties, accessory
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Sec. 4
or otherwise, or of the civil liability arising therefrom; Provided, however, That in offenses involving damage to property through criminal negligence, the imposable fine is not in excess of ten thousand pesos (P10,000.00). (c) Youth detention center refers to a government-owned or operated agency providing habilitative and rehabilitative facilities where a juvenile in conflict with the law may be physically restricted pending court disposition of the charge against him. (d) Intake report is a preliminary written report containing the personal and other circumstances of the juvenile in conflict with the law and prepared by the social worker assigned by the Department of Social Welfare and Development (DSWD) or local government unit to assist him as soon as he enters the justice system. (e) Case Study Report is a written report of the result of an investigation conducted by the social worker designated by the Family court on the social, cultural, economic and legal status or condition of the juvenile in conflict with the law. It includes, among others, his developmental age; educational attainment; family and social relationships; the quality of his peer group; the strengths and weaknesses of his family; parental control over him; his attitude toward the offense; the harm or damage done to others resulting from the offense; his record of prior offenses, if any; and the attitude of his parents towards his responsibility for the offense. (f) Diversion refers to an alternative child-appropriate process of determining the responsibility and treatment of a juvenile in conflict with the law on the basis of his social, cultural, economic, psychological or educational background without resorting to formal court adjudication. (g) Diversion programs refer to programs that the juvenile in conflict with the law is required to undergo in lieu of formal court proceedings.
Sec. 4
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(h) Disposition conference is a meeting held by the court with the social worker who prepared the case study report together with the juvenile in conflict with the law and his parents or guardian ad litem, for the purpose of determining the disposition measures appropriate to the personal and peculiar circumstances of the juvenile. (i) Recognizance is an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court by the juvenile in conflict with the law when required. (j) Probation is a disposition alternative under which a juvenile in conflict with the law is released and permitted to remain in his home and after conviction and sentence. The juvenile is subject to conditions imposed in the sentence and to supervision by the court and a probation officer who has the duty to return the juvenile to the court in case of violation of a condition of his probation. (k) Suspended sentence is the holding in abeyance of the service of the sentence imposed by the court upon a finding of guilt of the juvenile in conflict with the law who will undergo rehabilitation. (l) Community continuum is a communitybased group therapy process that provides continuous guidance and support to the juvenile in conflict with the law upon his release from rehabilitation and his reintegration into society. (m) Age of criminal responsibility is the age when a juvenile who is nine (9) years or over but under fifteen (15) years commits an offense with discernment. (n) Discernment means the mental capacity to understand the difference between right and wrong and its consequences. (o) Restorative Justice is a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender,
238
Sec. 5
and the community. It seeks to obtain reparation for the victim, reconciliation of the offender, the offended and the community and reassurance to the offender that he can be reintegrated into society. It also enhances public safety by activating the offender, the victim and the community in prevention strategies. (p) Initial contact is the apprehension or taking into custody of a juvenile in conflict with the law by law enforcement officers of private citizens. It includes the time when the juvenile receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no necessity to place the juvenile under immediate custody. (q) Corporal punishment is any kind of physical punishment inflicted on the body as distinguished from pecuniary punishment of fine. Sec. 5. Exemption from Criminal Liability. A minor under nine (9) years of age at the time of the commission of the offense shall be exempt from criminal liability. A minor nine (9) years and above but under fifteen (15) years of age at the time of the commission of the offense shall be committed to the care of his father or mother, or nearest relative or family friend, in the sound discretion of the court and subject to its supervision. However, if the prosecution proves that he has acted with discernment, he shall be proceeded against in accordance with Sections 24 to 28, or 36 to 40 of this Rule, as the case may be, and subjected to a delinquency prevention program as determined by the court. Exemption from criminal liability does not include exemption from civil liability which shall be enforced in accordance with the provisions of Article 221 of the Family Code in relation to Article 101 of
Sec. 6
239
the Revised Penal Code and Rule 111 of the Revised Rules of Criminal Procedure. In case the act or omission of the juvenile involves a quasi-delict, Article 2180 of the Civil Code shall apply. Sec. 6. Procedure in Taking a Juvenile into Custody. Any person taking into custody a juvenile in conflict with the law shall: (a) Identify himself and present proper identification of the juvenile; (b) Inform the juvenile of the reason for such custody and advise him of his constitutional rights in a language or dialect understood by him; (c) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on the juvenile; (d) Avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed; (e) Refrain from subjecting the juvenile to greater restraint than is necessary for his apprehension; (f) Avoid violence or unnecessary force; (g) Notify the parents of the juvenile or his nearest relative or guardian, if any, and the local social welfare officers as soon as the apprehension is made; (h) Take the juvenile immediately to an available government medical or health officer for a physical and mental examination. The examination results shall be kept confidential unless otherwise ordered by the Family Court. Whenever treatment for any physical or mental defect necessary, steps shall be immediately taken by the said officer to provide the juvenile with the necessary and proper treatment; and
240
Secs. 7-9
(i) Hold the juvenile in secure quarters separate from that of the opposite sex and adult offenders. Sec. 7. Taking Custody of a Juvenile Without a Warrant. A peace officer or a private person taking into custody a juvenile in conflict with the law without a warrant shall likewise follow the provisions of Sections 5, 8 and 9 of Rule 113 of the Revised Rules of Criminal Procedure and shall forthwith deliver him to the nearest police station. The juvenile shall be proceeded against in accordance with Section 7 of Rule 112. Sec. 8. Conduct of Initial Investigation by the Police. The police officer conducting the initial investigation of a juvenile in conflict with the law shall do so in the presence of either of the parents of the juvenile; in the absence of both parents, the guardian or the nearest relative, or a social welfare officer, and the counsel of his own choice. In their presence, the juvenile shall be informed of his constitutional rights during custodial investigation. The right of the juvenile to privacy shall be protected at all times. All measures necessary to promote this right shall be taken, including the exclusion of the media. Sec. 9. Fingerprinting and Photographing of the Juvenile. While under investigation, no juvenile in conflict with the law shall be fingerprinted or photographing the juvenile. His fingerprint and photograph files shall be kept separate from those of adults and shall be kept confidential. They may be inspected by law enforcement officers only when necessary for the discharge of their duties and upon prior authority of the Family Court. His fingerprints and photographs shall be removed from the files and destroyed: (1) if the case against him is not filed, or is dismissed; or (2) when
Secs. 10-13
241
the juvenile reaches twenty-one (21) years of age and there is no record that he committed an offense after reaching eighteen (18) years of age. Sec. 10. Intake Report by the Social Welfare Officer. Upon the taking into custody of a juvenile in conflict with the law, the social welfare officer assigned to him by the DSWD shall immediately undertake a preliminary background investigation of the juvenile and submit, prior to arraignment of the juvenile, a report on his findings to the Family Court in which the case may be filed. Sec. 11. Filing of Criminal Action. A criminal action may be instituted against a juvenile in conflict with the law by filing a complaint with the prosecutor or the municipal trial court in cases where a preliminary investigation is required. In Manila and other chartered cities, if their charters so provide, the complaint shall be filed with the Office of the Prosecutor. It may also be filed directly with the Family Court if no preliminary investigation is required under Section 1 of Rule 112 of the Revised Rules of Criminal Procedure. All criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the public prosecutor assigned to the Family Court. Sec. 12. Prosecution of Civil Action. When a criminal action is instituted against a juvenile in conflict with the law, the action for recovery of civil liability arising from the offense charged shall be governed by Rule III of the Revised Rules of Criminal Procedure. Sec. 13. Preliminary Investigation. As far as consistent with this Rule, the preliminary investigation of a juvenile in conflict with the law shall be governed by Section 3 of Rule 112 of the Revised Rules of Criminal Procedure. If clarificatory questions become necessary, the Rule on Examination of a Child Witness shall apply.
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Secs. 14-16
If a preliminary investigation is required before the filing of a complaint or information, the same shall be conducted by the judge of the Municipal Trial Court or the public prosecutor in accordance with the pertinent provisions of Rule 112 of the Revised Rules of Criminal Procedure. If the investigating prosecutor finds probable cause to hold the juvenile for trial, he shall prepare the corresponding resolution and information for approval by the provincial or city prosecutor, as the case may be. The juvenile, his parents/nearest relative/guardian and his counsel shall be furnished forthwith a copy of the approved resolution. Sec. 14. Venue. Subject to the provisions of Section 15, Rule 110 of the Revised Rules of Criminal Procedure, any criminal or civil action involving a juvenile in conflict with the law shall be instituted and tried in the Family Court of or nearest the place where the offense was committed or where any of its essential elements occurred. Sec. 15. Recognizance. Before final conviction, all juveniles charged with offenses falling under the Revised Rule on Summary Procedure shall be released on recognizance to the custody of their parents or other suitable person who shall be responsible for the juveniles appearance in court whenever required. Sec. 16. When Bail a Matter of Right. All juveniles in conflict with the law shall be admitted to bail as a matter of right before final conviction of an offense not punishable by death, reclusion perpetua or life imprisonment. In the event the juvenile cannot post bail for lack of financial resources, the family court shall commit the juvenile pursuant to Section 18 of this Rule. However, where the juvenile does not pose a threat to public safety, the family Court may, motu
Secs. 17-20
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proprio or upon motion and recommendation of the DSWD, release the juvenile on recognizance to the custody of his parents or other responsible person. Sec. 17. When Bail Not A Matter of Right. No juvenile charged with an offense punishable by death, reclusion perpetua or life imprisonment shall be admitted to bail when evidence of guilt is strong. Sec. 18. Care of Juvenile in Conflict with the Law. The juvenile charged with having committed a delinquent act, held for trial or while the case is pending appeal, if unable to furnish bail or is denied bail, shall, from the time of his being taken into custody, be committed by the Family Court to the care of the DSWD, a youth detention center, or a local rehabilitation center recognized by the government in the province, city or municipality within the jurisdiction of the said court. The center or agency concerned shall be responsible for the juveniles appearance in court whenever required. In the absence of any such center or agency within a reasonable distance from the venue of the trial, the juvenile shall be detained in the provincial, city or municipal jail which shall provide adequate quarters for the juvenile separate from adult detainees and detainees of the opposite sex. Sec. 19. Case Study Report. After the institution of the criminal action, the social worker of the Family Court shall immediately undertake a case study of the juvenile and his family, his environment and such other matters relevant to the proper disposition of the case. His report shall be submitted within the period fixed by the Family Court, preferably before arraignment, to aid it in the proper disposition of the case. Sec. 20. Diversion Proceedings Before Arraignment. Where the maximum penalty imposed by law for the offense with which the juvenile in con-
244
Sec. 21
flict with the law is charged is imprisonment of not more than six (6) months, regardless of fine or fine alone regardless of amount, and the corresponding complaint or information is filed with the Family Court, the case shall not be set for arraignment; instead, it shall forthwith be referred to the Diversion Committee which shall determine whether the juvenile can be diverted and referred to alternative measures or services offered by non-court institutions. Pending determination by the Committee, the court shall deliver the juvenile on recognizance to the custody of his parents or legal guardian who shall be responsible for the presence of the juvenile during the diversion proceedings. Sec. 21. Diversion Committee. In each Family Court, there shall be a Diversion Committee to be composed of its branch clerk of court as chairperson, and the prosecutor, a lawyer of the Public Attorneys Office and the social worker assigned to the said Family Court as members. The chairperson of the Committee shall call for a conference with notice to the juvenile, his parents/legal guardian and his counsel, and the private complainant and his counsel, and recommend to the Family Court whether the juvenile should be diverted to a diversion program or undergo formal court proceedings. In making its recommendation, the Committee shall consider the following factors: The record of the juvenile of his conflict with the law; Whether the imposable maximum penalty of the offense is more than six (6) months, regardless of fine; or only a fine, regardless of amount; Whether the juvenile is an obvious threat to himself and/or the community; Whether the juvenile is unrepentant; Whether the juvenile or his parents are indifferent or hostile; and
Sec. 22
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Whether the juveniles relationships with his peers increase the possibility of delinquent behavior. If the Committee recommends diversion, it shall submit the diversion program for the juvenile for the consideration and approval of the court. The Committee cannot recommend diversion should the juvenile or the private complaint object thereto. If no diversion program is recommended, the court shall include the case in its calendar for formal proceedings. Consent to diversion by the juvenile or payment by him of civil indemnity shall not in any way be construed as admission of guilt and used as evidence against him in the event that his case is included in the court calendar for formal proceedings. Sec. 22. Diversion Programs. The diversion program designed by the Committee shall be distinct to each juvenile in conflict with the law limited for a specific period. It may include any or a combination of the following: Written or oral reprimand or citation; Return of property; Payment of the damage caused; Written or oral apology; Guidance and supervision orders; Counseling for the juvenile and his family;
Training, seminars and lectures on: (i) anger management skills; (ii) problem-solving and/or conflict resolution skills; (iii) values formation; and (iv) other skills that will aid the juvenile to property deal with situations that can lead to a repetition of the offense; Participation in available community-based programs;
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Secs. 23-24
Institutional care and custody; or Work-detail program in the community.
Sec. 23. Hearing of Diversion Program. The Family Court shall set the recommendation and diversion program for hearing within ten (10) days from receipt thereof. Sec. 24. Undertaking. In all cases where a juvenile in conflict with the law is given the benefit of a diversion program, an undertaking describing the program shall be signed by him, his parents or legal guardian and the complainant, and approved by the Family Court. The program, which shall be enforced under the supervision and control of the Family Court, shall contain the following terms and conditions. a) The juvenile shall present himself to the social worker of the Family Court that approved the diversion program at least once a month for evaluation of its effectiveness. Whenever the juvenile is permitted to reside in a place under the jurisdiction of another Family Court, control and supervision over him shall be transferred to the Family Court of the place, and in such case, a copy of the undertaking, the intake and case study reports and other pertinent records shall be furnished the said court. Thereafter, the Family Court to which jurisdiction over the juvenile is transferred shall have the power with respect to the latter that was previously possessed by the Family Court that approved the diversion and such other conditions as the Committee may deem just and proper under the circumstances. b) The juvenile shall faithfully comply with the terms and conditions in the undertaking. His non-compliance shall be referred by the Committee to the Family Court where the case has been transferred for a show-cause hearing with notice to the juvenile and private complainant. The court shall determine whether the juvenile should continue
Secs. 25-26
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with the diversion program or his case returned to the original court for formal proceedings. The Family Court shall exert its best efforts to secure satisfaction of the civil liability of the juvenile and his parents or guardian. However, inability to pay the said liability shall not by itself be a ground to discontinue the diversion program of the juvenile. Sec. 25. Closure Order. The juvenile subject of diversion proceedings shall be visited periodically by the Family Code social worker who shall submit to the Committee his reports thereon. At any time before or at the end of the diversion period, a report recommending closure or extension of diversion, as the case may be, shall be filed by the Committee with the Family Court. The report and recommendation shall be heard by the Family Court within fifteen (15) days from its receipt thereof, with notice to the members of the Committee, the juvenile and his parents or legal guardian and counsel and the complainant to determine whether the undertaking has been fully and satisfactorily complied with. If the juvenile has complied with his undertaking, the Family Court shall issue the corresponding closure order terminating the diversion program. It may, however, extend the period of diversion to give the juvenile a further chance to be rehabilitated. In the event the court finds that the diversion program will no longer serve its purpose, it shall include the case of the juvenile in its calendar for formal proceedings. Sec. 26. Duty of the Family Court to Protect the Rights of the Juvenile. In all criminal proceedings in the Family Court, the judge shall ensure the protection of the following rights of the juvenile in conflict with the law: a) To be presumed innocent until the contrary is proved beyond reasonable doubt; b) To be informed promptly and directly of the nature and cause of the charge against him, and
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Sec. 26
if appropriate, through his parents of legal guardian; c) To be present at every stage of the proceedings, from arraignment to promulgation of judgment. The juvenile may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence at the trial is specifically ordered by the court for purposes of identification. The absence of the juvenile without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When the juvenile under custody escapes, he shall be deemed to have waived his right to be present in all subsequent hearings until custody over him is regained; d) To have legal and other appropriate assistance in the preparation and presentation of his defense; e) To testify as a witness in his own behalf and subject to cross-examination only on matters covered by direct examination, provided that the Rule on the Examination of a Child Witness shall be observed whenever convenient and practicable. The juvenile shall not be compelled to be a witness against himself and his silence shall not in any manner prejudice him; f) To confront and cross-examine the witnesses against him; g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf; h) To have speedy and impartial trial, with legal or other appropriate assistance and preferably in the presence of his parents or legal guardian, unless such presence is considered not to be in the best interests of the juvenile taking into account his age or other peculiar circumstances.
Secs. 27-29
249
i) To appeal in all cases allowed and in the manner prescribed by law; j) To be accorded all the rights under the Rule on Examination of a Child Witness; and k) To have his privacy fully respected in all stages of the proceedings. Sec. 27. Arraignment and Plea. The provisions of Rules 116 and 117 of the Revised Rules of Criminal Procedure shall apply to the arraignment of the juvenile in conflict with the law. The arraignment shall be scheduled within seven (7) days from the date of the filing of the complaint or information with the Family Court, unless a shorter period is provided for by law. Arraignment shall be held in chambers and conducted by the judge by furnishing the juvenile a copy of the complaint or information, reading the same in a language or dialect known to and understood by him, explaining the nature and consequences of a plea of guilty or not guilty and asking him what his plea is. Sec. 28. Pre-trial. The provisions of Rule 118 of the Revised Rules of Criminal Procedure shall govern the pre-trial of the juvenile in conflict with the law. Agreements or admissions made during the pre-trial conference shall be in writing and signed by the juvenile, his parents or guardian and his counsel; otherwise, they cannot be used against him. Whenever possible and practicable, the Family Court shall explore all possibilities of settlement of the case, except its criminal aspect. Plea bargaining shall be resorted to only as a last measure when it will serve the best interests of the juvenile and the demands of restorative justice. Sec. 29. Trial. All hearings shall be conducted in a manner conductive to the best interests of the juvenile and in an environment that will allow him
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Secs. 30-32
to participate fully and freely in accordance with the Rule on Examination of a Child Witness. Sec. 30. Guiding Principles in Judging the Juvenile. Subject to the provisions of the Revised Penal Code, as amended, and other special laws, the judgment against a juvenile in conflict with the law shall be guided by the following principles: It shall be in proportion to the gravity of the offense, and shall consider the circumstances and the best interests of the juvenile, the rights of the victim, the needs of society in line with the demands of restorative justice. 2. Restrictions on the personal liberty of the juvenile shall be limited to the minimum. Where discretion is given by law to the judge to determine whether the penalty to be imposed is fine or imprisonment, the imposition of the latter should be preferred as the more appropriate penalty. 3. No corporal punishment shall be imposed.
Sec. 31. Promulgation of Sentence. If after trial the Family Court should find the juvenile in conflict with the law guilty, it shall impose the proper penalty, including any civil liability which the juvenile may have incurred, and promulgate the sentence in accordance with Section 6, Rule 120 of the Revised Rules of Criminal Procedure. Sec. 32. Automatic Suspension of Sentence and Disposition Orders. The sentence shall be suspended without need of application by the juvenile in conflict with the law. The court shall set the case for disposition conference within fifteen (15) days from the promulgation of sentence which shall be attended by the social worker of the Family Court, the juvenile, and his parents or guardian ad litem. It shall proceed to issue any or a combination of the following disposition measures best suited to the rehabilitation and welfare of the juvenile: Care, guidance, and supervision orders;
Sec. 33
251
Community service orders; Drug and alcohol treatment;
Participation in group counseling and similar activities; Commitment to the Youth Rehabilitation Center of the DSWD or other centers for juveniles in conflict with the law authorized by the Secretary of the DSWD. The Social Services and Counseling Division (SSCD) of the DSWD shall monitor the compliance by the juvenile in conflict with the law with the disposition measure and shall submit regularly to the Family Court a status and progress report on the matter. The Family Court may set a conference for the evaluation of such report in the presence, if practicable, of the juvenile, his parents or guardian, and other persons whose presence may be deemed necessary. The benefits of suspended sentence shall not apply to a juvenile in conflict with the law who has once enjoyed suspension of sentence, or to one who is convicted of an offense punishable by death, reclusion perpetua or life imprisonment, or when at the time of promulgation of judgment the juvenile is already eighteen (18) years of age or over. Sec. 33. Discharge of Juvenile Subject of Disposition Measure. Upon the recommendation of the SSCD and a duly authorized officer of the DSWD, the head of an appropriate center or the duly accredited child-caring agency which has custody over the juvenile, the Family Court shall, after due notice to all parties and hearing dismiss the case against the juvenile who has been issued disposition measures, even before he has reached eighteen (18) years of age, and order a final discharge if it finds that the juvenile has behaved property and has shown the capability to be useful member of the community. If the Family Court, however, finds that the juvenile has not behaved properly, has been incor-
252
Secs. 34-35
rigible, has not shown the capability of becoming a useful member of society, has willfully failed to comply with the conditions of his disposition or rehabilitation program, or should his continued stay in the training institution where he has been assigned be not in his best interests, he shall be brought before the court for execution of his judgment. If the juvenile in conflict with the law has reached the age of eighteen (18) years while in commitment, the Family Court shall determine whether to dismiss the case in accordance with the first paragraph of this Section or to execute the judgment of conviction. In the latter case, unless the juvenile has already availed of probation under President Decree No. 603 or other similar laws, he may apply for probation if qualified under the provisions of the Probation Law. The final release of the juvenile shall not extinguish his civil liability. The parents and other persons exercising parental authority over the juvenile shall be civilly liable for the injuries and damages caused by the acts or omissions of the juvenile living in their company and under the parental authority subject to the appropriate defenses provided by law. Sec. 34. Probation as an Alternative to Imprisonment. After promulgation of sentence and upon application at any time by the juvenile in conflict with the law within the period to appeal, the Family Court may place the juvenile on probation, if he is qualified under the Probation Law. Sec. 35. Credit in Service of Sentence. The juvenile in conflict with the law who has undergone preventive imprisonment shall be credited in the service of his sentence consisting of deprivation of liberty, with the full time during which he has undergone preventive imprisonment, if he agrees voluntarily in writing to abide by the same or similar disciplinary rules imposed upon convicted prisoners, except in any of the following cases:
Sec. 36
253
When the juvenile is a recidivist or has been convicted previously twice or more times of any crimes; or When upon being summoned for execution of sentence, he failed to surrender voluntarily. If the juvenile does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. Whenever the juvenile has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the juvenile may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. Any form of physical restraint imposed on the juvenile in conflict with the law, including community service and commitment to a rehabilitation center, shall be considered preventive imprisonment. Sec. 36. Confidentiality of Proceedings and Records. All proceedings and records involving juveniles in conflict with the law from initial contact until final disposition of the case by the Family Court shall be considered privileged and confidential. The public may be excluded from the proceedings and, pursuant to the provisions of Section 31 of the Rule on Examination of a Child Witness, the records shall not be disclosed directly or indirectly to anyone by any of the parties or the participants in the proceedings for any purpose whatsoever, except to determine if the juvenile may have his sentence suspended under Section 25 of this Rule or if he may be granted probation under the Probation Law, or
254
Secs. 37-38
to enforce the civil liability imposed in the criminal action. The Family Court shall take other measures to protect this confidentiality of proceedings including non-disclosure of records to the media, the maintenance of a separate police blotter for cases involving juveniles in conflict with the law and the adoption of a system of coding to conceal material information, which will lead to the juveniles identity. Records of juveniles in conflict with the law shall not be used in subsequent proceedings or cases involving the same offender as an adult. Sec. 37. Non-liability for perjury or concealment or misrepresentation. Any person who has been in conflict with the law as a juvenile shall not be held guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose. Sec. 38. Sealing of Records. The Family Court motu proprio, or on application of a person who has been adjudged a juvenile in conflict with the law, or if still a minor, on motion of his parents or legal guardian, shall, upon notice to the prosecution and after hearing, order the sealing of the records of the case if it finds that two (2) years have elapsed since the final discharge of the juvenile after suspension of sentence or probation, or from the date of the closure order and he has no pending case of an offense or a crime involving moral turpitude. Upon entry of the order, the case shall be treated as if it never occurred. All index references shall be deleted and in case of inquiry, the Family Court, prosecution, law enforcement officers and all other offices and agencies that dealt with the case shall reply that no record exists with respect to the juvenile concerned. Copies of the order shall be sent to these officials and agencies named in the order. Inspection of the sealed records thereafter may be permitted only by order of the Family Court upon
Secs. 39-41
255
petition of the juvenile who is the subject of the records or of other proper parties. This procedure shall be without prejudice to the rule on destruction of video or audio tapes under Section 31 of the Rule on the Examination of a Child Witness. Sec. 39. Prohibition Against Labeling. In the conduct of proceedings from initial contact with the juvenile in conflict with the law to the final disposition of the case, there shall be no branding or labeling of the latter as a young criminal, juvenile delinquent, prostitute, vagrant, or attaching to him in any manner any derogatory name. Likewise, no discriminatory remarks and practices shall be allowed, particularly with respect to the juveniles social or economic status, physical disability or ethnic origin. Sec. 40. Contempt Powers. A person who directly or indirectly disobeys any order of the Family Court or obstructs or interferes with its proceedings or the enforcement of its orders issued under this Rule shall be liable for contempt of court. Sec. 41. Effectivity. This rule shall take effect on April 15, 2002, after its publication in a newspaper of general circulation not later than March 15, 2002.
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RULE ON COMMITMENT OF CHILDREN

[A.M. No. 02-1-19-SC]
Section 1. Objective. The objective of this Rule is to ensure that every effort is exerted to promote the childs welfare and enhance his opportunities for a useful and happy life. Toward this end, this Rule seeks to protect the child from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to his development. Sec. 2. Interpretation. The best interests of the child shall be the paramount consideration in all actions concerning him, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities and legislative bodies consistent with the United Nations Convention on the Right of the Child. Sec. 3. Definition of Terms.
(a) Child is a person below eighteen years of age. (b) Department refers to the Department of Social Welfare and Development. (c) Dependent child is one who is without a parent, guardian or custodian, or one whose parents, guardian or other custodian for good cause desires to be relieved of his care and custody, and is dependent upon the public for support. (d) Abandoned child is one who has no proper parental care or guardianship, or whose parents, or guardian has deserted him for a period of at least six (6) continuous months.
256
Sec. 3
RULE ON COMMITMENT OF CHILDREN [A.M. No. 02-1-19-SC]
257
(e) Neglected child is one whose basic needs have been deliberately unattended to or inadequately attended to, physically or emotionally, by his parents or guardian. (f) Physical neglect occurs when a child is malnourished, ill-clad and without proper shelter. (g) Emotional neglect occurs when a child is raped, seduced, maltreated, exploited, overworked or made to work under conditions not conducive to good health; made to beg in the streets or public places in moral danger, or exposed to drugs, alcohol, gambling, prostitution and other vices. (h) Disabled child includes mentally retarded, physically handicapped, emotionally disturbed and mentally-ill children, children with cerebral palsy and those with similar afflictions. (i) Mentally retarded child is one who is: (1) socially incompetent, that is socially inadequate, occupationally incompetent and unable to manage his own affairs; (2) mentally subnormal; (3) intellectually retarded from birth or early age; (4) retarded at maturity; (5) mentally deficient as a result of constitutional origin through heredity or diseases; or (6) essentially incurable. (j) Physically handicapped child is one who is crippled, deaf-mute, blind, or otherwise suffers from a defect which restricts his means of action or communication with others. (k) Emotionally disturbed child is one who, although not afflicted with insanity or mental defect, is unable to maintain normal social relations with others and the community in general due to emotional problems or complexes. (l) Mentally-ill child is one with any behavioral disorder, whether functional or organic, which is of such a degree of severity as to require professional help or hospitalization. (m) Commitment or surrender of a child is the legal act of entrusting a child to the care of the
258
Sec. 3
Department or any duly licensed child-placement or child-caring agency or individual by the court, parent or guardian or any interested party. (n) Involuntarily committed child is one whose parents have been permanently and judicially deprived of parental authority due to abandonment; substantial, continuous, or repeated neglect; abuse; or incompetence to discharge parental responsibilities in accordance with Section 4 herein. (o) Voluntarily committed child is one whose parents knowingly and willingly relinquished parental authority to the Department or any duly licensed child-placement or child-caring agency or individual in accordance with Section 3 herein. (p) Child-placing or child-placement agency refers to a private non-profit or charitable institution or government agency duly licensed and accredited by the Department to provide comprehensive child welfare services, including but not limited to, receiving applications for adoption or foster care, evaluating the prospective adoptive or foster parents and preparing the home study report. (q) Child-caring agency refers to a private non-profit or charitable institution or government agency duly licensed and accredited by the Department that provides twenty-four hour residential care services for abandoned, orphaned, neglected, involuntarily or voluntarily committed children. (r) Guardian ad litem is a person appointed by the court where the case is pending or a child sought to be committed to protect his best interest. (s) Case Study report is a written report of the result of an investigation conducted by a social worker as to the socio-cultural, economic and legal status or condition of the child sought to be committed. It shall include among others his developmental age, educational attainment, family and social relationships, the quality of his peer group, his familys
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strengths and weaknesses and parental control over him. The report submitted to the Family Court to aid it in its evaluation of whether the child ought to be committed to the care of the Department or any duly licensed child-placement or child-caring agency or individual. Sec. 4. Petition for Involuntary Commitment of a Child. (a) Who may file. The Secretary of the Department or his authorized representative or any duly licensed child-placement or child-caring agency having knowledge of a child who appears to be dependent, abandoned or neglected, may file a verified petition for involuntary commitment of said child to the care of duly licensed child-placement or child-caring agency or individual. (b) Venue. The petition shall be filed with the Family Court of the province or city in which the parent or guardian resides or where the child is found. (c) Contents of Verified Petition. The petition must state: (1) The names of the parents or guardian and their place of residence. If the childs parents unknown, petitioner allege that diligent efforts have been exerted to locate them. If said parents are deceased, petitioner shall attach a certified true copy of their death certificate; (2) The facts showing that the child is dependent, abandoned, or neglected; (3) The facts showing who has custody of the child at the time of the filing of petition; and (4) The name, address and written consent of the Department or duly licensed childplacement or child-caring agency or individual to those care the commitment of the child is sought to be entrusted.
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(d) Summons; Court of Set Time for Hearing. If the court is satisfied that the petition is sufficient in form and substance, it shall direct the clerk of court to immediately issue summons which shall be served together with a copy of the petition and a notice of hearing, upon the parents or guardian of the child and the office of the public prosecutor not less than five (5) days before the date of hearing. The office of the public prosecutor shall be directed to immediately transmit the summons to the prosecutor assigned to the Family Court concerned. If it appears from the petition that both parents of the child are dead or that neither parent can be found in the province or city where the court is located and the child has no guardian residing therein, summons may not be issued and the court shall thereupon appoint a guardian ad litem pursuant to Subsection (f) below and proceed with the hearing of the case with due notice to the provincial or city prosecutor. (e) Social Worker. After the court set the petition for hearing in accordance with Sub-section (d) above, it shall direct the social worker to submit, before the hearing, a case study report of the child to aid it in evaluating whether said child should be committed to the care of the Department or any duly licensed child-placement or child-caring agency or individual. The report shall bear the signature of the social worker on every page. (f) Guardian Ad Litem of Child. If neither of the parents nor the guardian of the child can be located or does not appear in court despite due notice, or if the court finds them incompetent to protect the best interests of the child, it shall be the duty of the court to appoint a suitable person as guardian ad litem to represent the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs and child development. A member of the Philippine Bar may be appointed guardian ad litem.
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(g) Childs Right to Counsel. The court, upon request of the child capable of forming his own views or upon request to his guardian ad litem, shall appoint a lawyer to represent him in the proceedings. (h) Duty of Public Prosecutor. The provincial or city prosecutor shall appear for the State and ascertain if there has been due notice to all parties concerned and that there is justification for the declaration of dependency, abandonment or neglect. (i) Hearing. The court shall direct the person or agency which has custody of the child to bring the latter to the court on the date of the hearing of the petition and shall ascertain the facts and determine whether the child is dependent, abandoned, or neglected, and if so, the cause and circumstances of such condition. (j) Judgment. If, after the hearing, the court shall find the child to be dependent, abandoned, or neglected, it shall render judgment committing him to the care and custody of the Department or any duly licensed child-placement or child-caring agency or individual until he reaches the age of eighteen (18). The judgment shall likewise make proper provisions for the custody of the property or money belonging to the committed child. If the child is committed to the Department, it shall notify the court within thirty (30) days from the order of commitment, the name and address of the duly licensed and accredited child-placement or child-caring agency or individual where the child shall be placed. However, if the court finds that the abandonment or neglect of the child may be remedied, the child may be allowed to stay in his own home under the care and control of his parents or guardian, subject to supervision and direction of the Department.
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(k) Visitation or Inspection. Any duly licensed child-placement or child-caring agency or individual to whom a child has been committed by the court shall be subject to visitation or inspection by a representative of the court or of the Department, as the case may be or of both, to determine whether the welfare and interests of the child are being served. (l) Report of Person and Institution. Any duly licensed child-placement or child-caring agency or individual to whom a child has been committed by judicial order may at any time be required by the court to submit a report, containing all necessary information for determining whether the welfare of the child is being served. (m) Temporary Custody of Child. The duly licensed child-placement or child-caring agency or individual to whom a child has been committed may file a verified motion with the court which granted the petition for involuntary commitment of a child to place him in the care of any suitable person, upon the latters request, for a period not exceeding one month at a time. The court may order the social worker to submit a case study report to aid it in evaluating whether such temporary custody shall be for the best interests of a child. The period of temporary custody of the child may be extended by the court for a period not exceeding one month at a time upon motion of the duly licensed child-placement or child-caring agency or individual to which the child has been committed. The court, motu proprio, or upon request of the child assisted by his guardian ad litem, or at the instance of the agency or person to whom the child was committed, after due notice and hearing, shall discontinue the temporary custody of a child if it appears that he is not being given proper care. After one month from the date temporary custody of the child was given to another suitable person, the agency or individual shall submit to the court a
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verified report on whether the temporary custody of the child has promoted his best interests. (n) Change of Custody. If the child is committed to the Department, it shall have the authority to change the custody of a child it had placed with any duly licensed child-placement or child-caring agency or individual if it appears that such change is for the best interests of the child. The Department shall notify the court of any change in custody of the child. When conflicting interest arise among childplacement or child-caring agencies, the court which granted the involuntary commitment of the child, upon motion of the Department or any of the agencies concerned, shall order the change of commitment of the child. (o) Removal of Custody. A motion to remove custody of a child may be filed by an authorized representative of the Department with knowledge of the facts against a child-placement or child-caring agency or individual to whose custody a child has been committed by the court on the ground of neglect of such child as defined in Section 3(e) of this Rule. The court shall set the motion for hearing with notice to the public prosecutor and the court-designated social worker. If the court finds after hearing that the allegations of the motion have been established and that it is for the best interests and welfare of a child, the court shall issue an order removing him from the custody of the person or agency, as the case may be, and committing him to the custody of another duly licensed child-placement or child-caring or individual. In the same proceeding, the court may suspend or revoke the license of the agency or individual found guilty of such neglect depending upon the gravity of frequency of the offense. (p) Restoration of Parental Authority After Involuntary Commitment.
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(i) Who may file; Ground. The parents or guardian of a child committed to the care of a person, agency or institution by judicial order may file a verified motion for the restoration of his rights over the child with the court which granted the involuntary commitment on the ground that he is now able to take proper care and custody of said child, provided, however, that the child has not yet been adopted. (ii) Notice of Hearing. The court shall fix the time and date for the hearing of the motion, which shall not be earlier than thirty (30) days nor later than sixty (60) days from the date of the filing of said motion and cause notice of the hearing to be sent to the person, agency or institution to which the child has been committed, the public prosecutor and the court-designated social worker, at least five (5) days before the date of hearing. (iii) Hearing. At the hearing, any person may be allowed to intervene at the discretion of the court to contest the right to the relief demanded. Witnesses may be called and examined by the parties or by the court motu proprio. (iv) Resolution. If it is found that the cause for the commitment of the child no longer exists and that the movant is already able to take proper care and custody of the child, the court, after taking into consideration the best interests and the welfare of the child, shall issue a resolution terminating the parental authority of the person, agency or institution to whom the child was committed by judicial order and restoring parental authority to the movant. (q) Jurisdiction for Prosecution of Punishable Acts. The Family Court which granted the involuntary commitment shall have jurisdiction over the prosecution of a child who left without prior permission from the person or institution to which he has been judicially committed or the person under
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whose custody he has been judicially committed in accordance with Sub-section (m) of Section 4 of his Rule. It shall likewise have jurisdiction over the person who induced the child to leave such person or institution, expect in case of actual or imminent grave physical or moral danger to the child. The Family Court which granted the involuntary commitment shall also have jurisdiction over the prosecution of parents or guardians of the child who may be held liable under Articles 59 and 60 of P.D. No. 603 and Sections 9 and 31 of R.A. No. 7610. Sec. 5. Voluntary Commitment of a Child to an Institution or Individual. The parent or guardian of a dependent, abandoned or neglected child may voluntarily commit him to the Department or any duly licensed child-placement or child-caring agency or individual subject to the rules of the Department. However, no child shall be committed unless he is surrendered in writing by his parents or guardian stating such voluntary commitment and specifically naming the office, agency, or individual to whose custody the child is to be committed. Such written instrument should be notarized and signed in the presence of an authorized representative of the Department after counseling and other services have been made available to encourage the childs parents to keep the child. (a) Petition for Removal of Custody. (i) Who may file; Ground. The parents or guardian who voluntarily committed the child, or in their absence or failure, any person with knowledge of the facts, may file a verified petition to remove custody of the child against the child-placement or child-caring agency or individual to whose custody the child has been voluntarily committed on the ground of neglect, of such child as defined in Section 3(e) of this Rule. A child may also be removed from the custody of the child-placement or child-caring agency or individual on the ground that the
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voluntary commitment of the child was unjustified. (ii) Venue. The petition shall be filed with the Family Court of the province or city where the child-placement or child-caring agency to which the child has been voluntarily committed is located or where the child may be found. (iii) Contents of Verified Petition. The petition must state: The name and address of the child-placement or child-caring agency or individual to whose custody the child has been voluntarily committed: The facts showing that the child has been neglected by the agency or in cases where the voluntary commitment was unjustified, that the parents of the child actually capable of taking care and custody of the child; The name, address and written consent of the duly licensed child-placement or child-caring agency or individual to whose care the child may be transferred; The facts showing that petitioner has exhausted the administrative remedies available to him. (iv) Notice of Hearing. If the petition is sufficient in form and substance, the court shall set the same for hearing with notice from the Department, the public prosecutor, the court designated, social worker, the agency or individual to whom the child has been committed and in appropriate cases, the parents of the child. (v) Judgment. If after the hearing the court finds that the allegations of the petition have been established and that it is for the best interests and welfare of the child, it shall issue
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an order removing the child from the custody of the person or agency concerned, and committing him to the custody of another duly licensed child-placement or child-caring agency or individual. The court, in the same proceeding may, after hearing the comment or recommendation of the Department, suspend or revoke the license of the agency or individual found guilty of such neglect depending upon the gravity or frequency of the offense. (b) Restoration of Parental Authority After Voluntary Commitment. The restoration of rights of the parent or guardian over the child who has been voluntarily committed shall be governed by the rules of the Department, provided, however, that the petition for restoration is filed within six (6) months from the date of voluntary commitment. In case the Department refuses to grant legal custody and parental authority to the parent or guardian over the child who have been voluntarily committed to an agency or individual, the parent or guardian may file a petition in court for restoration of parental authority in accordance with Section 4(p) of this Rule. (c) Jurisdiction for Prosecution of Punishable Acts. The Family Court of the place where the child may be found or where the duly licensed childplacement or child-caring agency or individual is located shall have jurisdiction over the prosecution of a child who left without prior permission from the person or institution to which he has been voluntarily committed. It shall likewise have jurisdiction over the person who induced the child to leave such person or institution, except in case of grave actual or imminent physical or normal danger, to the child. The same Family Court shall also have jurisdiction over the prosecution of parents or guardians of the child who may be held liable under Articles 59 and 60 of P.D. No. 603 and Sections 9, and 31 of R.A. No. 7610.
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Sec. 6. Petition for Commitment of a Disabled Child. (a) Who may file. Where a child appears to be mentally retarded, physically handicapped, emotionally disturbed, mentally ill, with cerebral palsy or with similar afflictions and needs institutional care but his parents or guardians are opposed thereto, the Department, or any licensed child-placement or child-caring agency or individual may file a verified petition for commitment of the said child to any reputable institution providing care, training and rehabilitation for disabled children. The parents or guardian of the child may file a similar petition in case no immediate placement can be arranged for the disabled child when his welfare and interests are at stake. (b) Venue. The petition for commitment of a disabled child shall be filed with the Family Court of the place where the parent or guardian resides or where the child is found. (c) Contents of Verified Petition. The petition for commitment must state the following: (1) The facts showing that the child appears to be mentally retarded, physically handicapped, emotionally disturbed, mentally ill, with cerebral palsy or with similar afflictions and needs institutional care; (2) The name of the parents and their residence, if known, or if the child has no living parent, the name and residence of the guardian, if any; and (3) The fact that the parents or guardian or any duly licensed disabled child-placement or child-caring agency, as the case may be, has opposed the commitment of such child; (4) The name and written conformity of the institution where the child is to be committed;
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(5) An estimate of the costs and other expenses and maintaining the child in the institution. The verified petition shall be sufficient if based upon the personal knowledge of the petitioner. (d) Order of Hearing; Notice. If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix the date of the hearing thereof, and a copy of such order shall be served on the child alleged to be mentally retarded, physically handicapped, emotionally disturbed, mentally ill, with cerebral palsy or with similar afflictions and on the person having change of him or any of his relatives residing in the province or city as the court may deem proper. The order shall also direct the sheriff or any other officer of the court to produce, if necessary, the alleged disabled child on the date of the hearing. (e) Hearing and Judgment. If the court finds that the allegations of the petition have been established and that institutional care of the child is for his best interests or the public welfare and that his parents, or guardian or relatives are unable for any reason whatsoever to take proper care of him, the court shall order his commitment to the proper institution for disabled children. The court likewise make proper provisions for the custody of the property or money belonging to the committed child. The expense of maintaining a disabled child in the institution to which he has been committed shall be borne primarily by the parents or guardian and secondarily, by such disabled child, if he has property of his own. In all cases where the expenses for the maintenance of the disabled child cannot be paid in accordance with the immediately preceding paragraph, the Department shall bear the expenses, or such part thereof as may remain unpaid.
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The court shall furnish the institution to which the child has been committed with a copy of its judgment, together with all the reports and other data pertinent to the case. (f) Discharge of Judicially Disabled Child. Upon motion of the parent, guardian or institution to which the child has been judicially committed under this Rule, the court, after hearing, shall order the discharge of such child if it is established and certified by the department that: (1) He is no longer a danger to himself and the community; (2) He has been sufficiently rehabilitated from his physical handicap or if of working age, is already fit to engage in gainful occupation; or (3) He has been sufficiently relieved of his psychological, mental and emotional problems and is ready to assume normal social relations. Sec. 7. Effectivity. This rule shall take effect on April 15, 2002 after its publication in a newspaper of general circulation not later than March 15, 2002.
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EN BANC RE: RULE ON VIOLENCE AGAINST WOMEN AND THEIR CHILDREN

[A.M. No. 04-10-11-SC]
RESOLUTION
Acting on the report of the Committee on Revision of the Rules of Court submitting for this Courts consideration and approval the Proposed Rule on Violence Against Women and Their Children, the Court Resolved to APPROVE the same. The Rule shall take effect on November 15, 2004 following its publication in a newspaper of general circulation not later than October 30, 2004. October 19, 2004. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Morales, Callejo, Sr., Tinga, Chico-Nazario, and Garcia, JJ., concur. Azcuna, J., on leave.
RULE ON VIOLENCE AGAINST WOMEN AND THEIR CHILDREN
SECTION 1. Applicability. This Rule shall apply to petitions for protection orders in cases of violence against women and their children under R.A. No. 9262, otherwise known as the Anti-Violence Against Women and Their Children Act of 2004. The Rules of Court shall apply suppletorily. SEC. 2. Construction. This Rule shall be liber271
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ally construed to promote its objectives pursuant to the principles of restorative justice. SEC. 3. Objectives. The objectives of this Rule are: (a) To protect the rights of the family and its members particularly women and children from violence and threats to their personal safety and security; (b) To enable the courts to manage and monitor cases involving violence against women and children and the members of their family or household; (c) To prevent any disruption in the daily lives of the offended parties and assist them to regain control of their lives; (d) To ensure that treatment is provided for the offended parties and offenders; and (e) To hold the offenders accountable for their acts. SEC. 4. Definitions. As used in this Rule:
(a) Violence against women and their children refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or a woman with whom the person has or had a dating or sexual relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. (b) Children refers to persons below eighteen years of age or older but are unable to fully take care of themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. It includes the
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RE: RULE ON VIOLENCE AGAINST WOMEN AND THEIR CHILDREN [A.M. No. 04-10-11-SC]
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biological children of the offended party and other children under her care. (c) Members of the family shall include husband and wife, parents and children, the ascendants or descendants, brothers and sisters, whether of the full or half blood, whether living together or not. (d) Members of the household shall include: (1) Spouses, common-law spouses, former spouses, whether living together or not, and their children; (2) Relatives by consanguinity or affinity up to the sixth civil degree, including stepparents and stepchildren living together in the same house; and (3) Domestic helpers in the service of the employer, whose services are usually necessary or desirable for the maintenance and enjoyment of the home, who attend to the personal comfort and convenience of the members of the household. (e) Battery refers to an act of inflicting physical harm upon the woman or her child resulting in physical and psychological or emotional distress. (f) Sexual violence refers to an act which is sexual in nature committed against a woman or her child. It includes the following: (1) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victims body, forcing the offended party to watch obscene publications and indecent shows or to do indecent acts or make films thereof, forcing the wife and mistress or lover to live in the conjugal home or sleep together in the same room with the abuser; (2) acts causing or attempting to cause
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the offended party to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; and (3) prostitution of the woman or her child. (g) Psychological violence refers to acts or omissions causing or likely to cause mental or emotional suffering of the offended party such as intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the offended party to witness the physical, sexual or psychological abuse; of a member of the family to which the offended party belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody or visitation of common children. (h) Economic abuse refers to acts that make or attempt to make a woman financially dependent which includes the following: (1) withdrawing of financial support or preventing the offended party from engaging in any legitimate profession, occupation, business or activity, except in cases where the other spouse or partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code; (2) depriving or threatening to deprive financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common; (3) destroying household property; and (4) controlling the offended partys own money or property or solely controlling the conjugal money or property. (i) Stalking refers to an intentional act of
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knowingly and without lawful justification, following the woman or her child or placing the woman or her child under surveillance directly or indirectly or through a combination thereof. (j) Sexual relationship refers to a single sexual act which may or may not result in the bearing of a common child. (k) Program of intervention for offended parties refers to a specialized program that provides advocacy, shelter, crisis intervention, social services, treatment, counseling, education, or training. (l) Program of intervention for offenders refers to court-ordered treatment of offenders given by agencies or persons who have demonstrated expertise and experience in anger control, management of alcohol, substance abuse; and other forms of intervention to stop violence. (m) Safe Place or Shelter refers to any home or institution managed by the Department of Social Welfare and Development (DSWD) or by any agency or voluntary organization accredited by the DSWD or any other suitable place the resident of which is willing to receive the offended party temporarily. (n) Safety plan refers to a written plan of action prepared by a social worker and approved by the court to secure the protection of the offended party. (o) Protection order is an order issued by the court to prevent further acts of violence against women and their children, their family or household members, and to grant other necessary relief. Its purpose is to safeguard the offended parties from further harm, minimize any disruption in their daily life and facilitate the opportunity and ability to regain control of their life. (p) Barangay protection order (BPO) refers to the protection order issued by the Punong Barangay, or in his absence the Barangay Kagawad, ordering the perpetrator to desist from committing
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acts of violence against the family or household members particularly women and their children under Sections 5a and 5b of R.A. No. 9262. (q) Temporary protection order (TPO) refers to the protection order issued by the court on the filing of the application and after ex parte determination of its need. It may also be issued in the course of a hearing, motu proprio or upon motion. (r) Permanent protection order (PPO) refers to the protection order issued by the court after notice and hearing. (s) Live-link television testimony refers to the testimony of a child, who is an eyewitness or offended party in violence against women and their children, taken in a room outside the courtroom and televised to the courtroom by live-link television, as provided for in Section 25 of the Rule on Examination of a Child Witness. It may also refer to the live-link testimony of an adult female victim of violence, which may be allowed at the discretion of the court. SEC. 5. Acts of violence against women and their children under R.A. No. 9262. Violence against women and their children is committed through any of the following acts: (a) Causing, threatening or attempting to cause physical harm to the woman or her child; (b) Placing the woman or her child in fear of imminent physical harm; (c) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or to desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the womans or her childs freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical on other harm, or intimidation directed against the woman
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or her child. This shall include, but is not limited to, the following acts committed with the purpose or effect of controlling or restricting the movement or conduct of the woman or her child: (1) Threatening to deprive or actually depriving the woman or her child of custody or access to her/his family; (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the womans children insufficient financial support; (3) Depriving or threatening to deprive the woman or her child of a legal right; and (4) Preventing the woman from engaging in any legitimate profession, occupation, business or activity except in cases where the spouse or partner on valid, serious and moral grounds, or controlling the victims own money or property, or solely controlling the conjugal or common money or property; (d) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; (e) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; (f) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but is not limited to, the following acts:
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(1) Stalking or following the woman or her child in public or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or child; and (5) Engaging in any form of harassment or violence; or (g) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of a minor child or denial of access to the womans child. SEC. 6. Remedies of offended party. The offended party may file a separate petition for protection order without claiming damages. The offended party may also pursue other remedies in accordance with Part II of this Rule by the filing of any of the following: (a) Criminal action; (b) Criminal action with reservation of a separate civil action; or (c) Civil action for damages. Part I PETITION FOR PROTECTION ORDER SEC. 7. Form of petition. A petition for protection order shall be in writing, signed and verified by the petitioner. It shall be accompanied by a certificate of non-forum-shopping which the petitioner must sign personally.
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SEC. 8. Who may file petition. A petition for protection order may be filed by any of the following: (a) The offended party; (b) Parents or guardians of the offended party; (c) Ascendants, descendants or collateral relatives of the offended party within the fourth civil degree of consanguinity or affinity; (d) Officers or social workers of the Department of Social Welfare and Development (DSWD) or social workers of local government units (LGUs); (e) Police officers, preferably those in charge of women and childrens desks; (f) Punong Barangay or Barangay Kagawad; (g) Lawyer, counselor, therapist or healthcare provider of the petitioner; or (h) At least two concerned, responsible citizens of the place where the violence against women and their children occurred and who have personal knowledge of the offense committed. The filing of a petition for protection order by the offended party suspends the right of all other authorized parties to file similar petitions. A petition filed by the offended party after the filing of a similar petition by an authorized party shall not be dismissed but shall be consolidated with the petition filed earlier. SEC. 9. Where to file the petition. The verified petition for protection order may be filed with the Family Court of the place where the offended party resides. If there is no existing Family Court, it may be filed with the regional trial court, metropolitan trial court, municipal trial court in cities, municipal trial court or municipal circuit trial court with territorial jurisdiction over the place of residence of the offended party.
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SEC. 10. Contents of the petition. The petition filed by the offended party shall contain the following: (a) The name, age and residence of the offended party; (b) The name, age and residence of the respondent; (c) A description of the relationship between the offended party and the respondent; (d) A complete description of the alleged act constituting violence including the date, time and place of occurrence; (e) A request for counsel and the reasons for such; (f) A request for waiver of application fees; (g) The relief from violence prayed for, including protection orders to cover any designated family or household member who consents to such relief. If the petitioner is not the offended party, the petition shall be accompanied by an affidavit of the petitioner attesting to the following: (a) facts showing the authority of the petitioner to file the petition; (b) circumstances of the abuse suffered by the offended party; and (c) circumstances of consent given by or refusal to consent of the offended party to file the petition. When disclosure of the address will pose danger to the life of the offended party, it shall be so stated in the petition. In such a case, the petitioner shall attest that the offended party is; residing in the municipality or city over which the court has territorial jurisdiction, and shall provide a mailing address for purposes of service processing.
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SEC. 11. Reliefs available to the offended party. The protection order shall include any, some or all of the following reliefs: (a) Prohibiting the respondent from threatening to commit or committing, personally or through another, acts of violence against the offended party; (b) Prohibiting the respondent from harassing, annoying, telephoning, contacting or otherwise communicating in any form with the offended party, either directly or indirectly; (c) Removing and excluding the respondent from the residence of the offended party, regardless of ownership of the residence, either temporally for the purpose of protecting the offended party, or permanently where no property rights are violated. If the respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent to the residence, remain there until the respondent has gathered his things and escort him from the residence; (d) Requiring the respondent to stay away from the offended party and any designated family or household member at a distance specified by the court; (e) Requiring the respondent to stay away from the residence, school, place of employment or any specified place frequented regularly by the offended party and any designated family or household member; (f) Directing lawful possession and use by the offended party of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the offended party to the residence of the parties to ensure that the offended party is safely restored to the possession of the automobile and other essential personal effects;
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Sec. 11
(g) Ordering temporary or permanent custody of the child/children with the offended party, taking into consideration the best interests of the child. An offended party who is suffering from Battered Woman Syndrome shall not be disqualified from having custody of her children. In no case shall custody of minor children be given to the batterer of a woman who is suffering from Battered Woman Syndrome; (h) Directing the respondent to provide support for the woman and/or her child, if entitled to legal import. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by his employer and to automatically remit it directly to the offended party. Failure to withhold, remit or any delay in the remittance of support to the offended party without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; (i) Prohibiting the respondent from carrying or possessing any firearm or deadly weapon and ordering him to surrender the same to the court for appropriate disposition, including revocation of license and disqualification to apply for any license to carry or possess a firearm. If the respondent is a law enforcement agent, the court shall order him to surrender his firearm and shall direct the appropriate authority to investigate him and take appropriate action thereon; (j) Directing the DSWD or any appropriate agency to prepare a program of intervention for the offended party that provides advocacy, temporary shelter, crisis intervention, treatment, therapy, counseling, education, training and other social services that the offended party may need; (k) Requiring the respondent to receive professional counseling from agencies or persons who have demonstrated expertise and experience in anger control, management of alcohol, substance abuse
Sec. 12
283
and other forms of intervention to stop violence. The program of intervention for offenders must be approved by the court. The agency or person is required to provide the court with regular reports of the progress and result of professional counseling, for which the respondent may be ordered to pay; and (l) Awarding the offended party actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expanses, childcare expenses and loss of income; and compensatory, moral, and exemplary damages, subject to Sections 26a and 35 of this Rule. The court may grant such other forms of relief to protect the offended party and any designated family or household member who consents to such relief. SEC. 12. Duties of the clerk of court. The clerk of court shall assist the petitioner or the offended party by: (a) Communicating in a language understood by the petitioner; (b) Providing the petitioner with a standard petition form written in English with translation into the major local dialects, including the instructions for its accomplishment; (c) Ensuring the privacy of the offended party to the extent practicable while the form is being accomplished; (d) Advising the petitioner on the availability of legal assistance from the Public Attorneys Office of the Department of Justice or any public legal assistance office; (e) Advising the petitioner on entitlement of support services from the DSWD and LGUs; (f) Advising the petitioner on the availability of an affidavit of indigency in lieu of payment of the filing fee;
284
Secs. 13-15
(g) Providing the offended party with a certified copy of the protection order as well as giving the necessary information regarding the process for its service and enforcement; (h) Making available informative materials on violence against women and their children, including their rights as victims; and (i) Informing the offended party that compensation is available from the Department of Justice Board of Claims in accordance with the provisions of R.A. No. 7309 (1992), otherwise known as An Act Creating a Board of Claims Under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crime and For Other Purposes. SEC. 13. Exemption from payment of docket fee and other expenses. If the offended party is an indigent or there is an immediate necessity due to imminent danger or threat of danger to act on a petition for a protection order, the court shall accept the petition without payment of the filing fee and other fees and of transcripts of stenographic notes. SEC. 14. Raffle in multi-sala courts. The petition filed in a multi-sala court shall be raffled without delay. If an action contains an application for a protection order, it shall be the subject of a special raffle. SEC. 15. Ex parte issuance of temporary protection order. (a) If the court is satisfied from the verified allegations of the petition that there is reasonable ground to believe that an imminent danger of violence against women and their children exists or is about to recur, the court may issue ex parte a temporary protection order which shall be effective for thirty days from service on the party or person sought to be enjoined. (b) The temporary protection order shall include notice of the date of the preliminary con-
Sec. 16
285
ference and hearing on the merits. The following statements must be printed in bold-faced type or in capital letters on the protection order issued by the court:
VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW. IF THE RESPONDENT APPEARS WITHOUT COUNSEL ON THE DATE OF THE PRELIMINARY CONFERENCE AND HEARING ON THE MERITS ON THE ISSUANCE OF A PERMANENT PROTECTION ORDER, THE COURT SHALL NOT RESCHEDULE OR POSTPONE THE PRELIMINARY CONFERENCE AND HEARING BUT SHALL APPOINT A LAWYER FOR THE RESPONDENT AND IMMEDIATELY PROCEED WITH SAID HEARING. IF THE RESPONDENT FAILS TO APPEAR ON THE DATE OF THE PRELIMINARY CONFERENCE AND HEARING ON THE MERITS DESPITE PROPER NOTICE, THE COURT SHALL ALLOW EX PARTE PRESENTATION OF EVIDENCE BY THE PETITIONER AND RENDER JUDGMENT ON THE BASIS OF THE PLEADINGS AND EVIDENCE ON RECORD. NO DELEGATION OF THE RECEPTION OF EVIDENCE SHALL BE ALLOWED.
(c) The court shall likewise order the immediate issuance of a notice requiring the respondent to file an opposition within five days from service. It shall further order service of: (1) the notices to file opposition and of dates of the preliminary conference and hearing, (2) the protection order, and (3) copy of the petition, upon the respondent by the court sheriff, or any person authorized by the court, who may obtain the assistance of law enforcement officers. SEC. 16. Notice where no temporary protection order is issued ex parte. Where no temporary protection order is issued ex parte, the clerk of court shall forthwith issue the corresponding notice to the respondent requiring him to file an opposition within five days. The date of the preliminary confer-
286
Secs. 17-19
ence and hearing on the merits shall be indicated on the notice. Where the notice could not be served personally or by substituted service despite diligent efforts, Rule 14 of the Rules of Court shall apply as far as practicable. SEC. 17. Enforceability of protection order. The protection order issued by the court shall be enforceable anywhere in the Philippines. Violation of the protection order shall be punishable by a fine ranging from Five Thousand Pesos (P5,000.00) to Fifty Thousand Pesos (P50,000.00) or imprisonment of six months or both. SEC. 18. Duties of the law enforcement officer. Upon the receipt of the protection order, the law enforcement officer shall use all reasonable means to enforce the order and prevent further violence, such as by: (a) Taking any action necessary to provide for the safety of the offended party; (b) Taking custody of the weapon used in the violence against women and their children; (c) Transporting or obtaining transportation for the offended party to a safe place; (d) Assisting the offended party in obtaining medical treatment, including transportation to a medical clinic or hospital; and (e) Assisting the offended party in removing essential personal effects from the residence. The law enforcement officer shall submit a written report to the court within twenty-four hours from receipt setting forth compliance with such order. SEC. 19. Duties of social worker. The social worker assigned by the court shall assist the petitioner seeking a protection order by:
Secs. 20-22
287
(a) Preparing a case study and a program of intervention for the offended party, including her children, and referring them to DSWD havens, crisis intervention centers and private entities rendering appropriate social services; (b) Formulating a safety plan which shall be approved by the court; and (c) Monitoring the measures indicated in the protection order. SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the petition which he himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why a temporary or permanent protection order should not be issued. (b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party complaint, but any cause of action which could be the subject thereof may be litigated in a separate civil action. SEC. 21. Effect of failure to file an opposition. If the respondent fails to file an opposition to the petition within the period above provided, the court, motu proprio or on motion of the petitioner, shall issue the corresponding order as may be warranted by the facts alleged in the petition. SEC. 22. Prohibited pleadings and motions. The following pleadings, motions or petitions shall not be allowed: (a) Motion to dismiss the petition except on the ground of lack of jurisdiction over the subject matter or over the parties; (b) Motion for extension of time to file opposition, affidavit, position paper and other pleadings; (c) Dilatory motion for postponement; (d) Motion for a bill of particulars;
288
Sec. 23
(e) Third-party complaint; (f) Reply;
(g) Motion to declare the respondent in default; (h) Intervention; (i) Memorandum;
(j) Petition for certiorari, mandamus or prohibition against any interlocutory order issued by the court; (k) Motion for new trial, or for reconsideration of a protection order, or for reopening of trial; and (l) Petition for relief from judgment. SEC. 23. Preliminary conference.
(a) When conducted. A preliminary conference, which is mandatory, shall be held on the date indicated in the notice. (b) Notice. The notice shall be served the parties, including the offended party, who shall be required to notify their respective counsels, if any. The parties shall appear in person at the preliminary conference and submit their position papers setting forth the law and the facts relied upon by them. (c) Nature and purpose. The court shall consider: (1) The propriety of issuing a protection order. The court shall not deny the issuance of a protection order due to the lapse of time between the act of violence and the filing of the petition, subject to Section 24, R.A. No. 9262. The issuance of a barangay protection order or the pendency of an application for a barangay protection order shall not preclude a petitioner from applying for, or the court from granting, a protection order; (2) The simplification of the issues; and
Sec. 23
289
(3) Such other matters as may aid in the prompt disposition of the petition. The court shall not refer the case or any issue thereof to a mediator, (d) Prohibited compromise. The court shall not allow compromise on any act constituting the crime of violence against women and their children and other prohibited matters, such as the following: (1) The civil status of persons; (2) The validity of a marriage, declaration of nullity or annulment of a marriage or of a legal separation; (3) Any ground for declaration of nullity or annulment of a marriage or of legal separation; (4) Future support; (5) The jurisdiction of courts; and (6) Future legitime.
(e) Effect of failure to appear. (1) If the petitioner fails to appear personally, the petition shall be dismissed unless the counsel or a duly authorized representative of the petitioner appears in court and gives a justifiable reason for the non-appearance of the petitioner; however, if the petition is filed by a person other than the offended party, it shall not be dismissed if the offended party is present and does not agree to its dismissal. (2) If the respondent appears without counsel, the court shall not reschedule or postpone the conference but shall appoint a lawyer for the respondent and immediately proceed therewith; and (3) If the respondent has filed his opposition but fails to appear despite proper notice; the petitioner shall be allowed to present
290
Secs. 24-26
evidence ex parte. The court shall then render judgment on the basis of the pleadings and evidence on record. SEC. 24. Protection order issued after preliminary conference. Within five days after the termination of the preliminary conference, the court may issue a protection order, based on the pleadings and stipulations or admissions made by the parties. SEC. 25. Order for further hearing. In case the court determines the need for further hearing, it may issue an order containing the following: (a) Facts undisputed and admitted; (b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and will be presented; (d) Names of witnesses who will be ordered to present their direct testimonies in the form of affidavits; and (e) Schedule of the presentation of evidence by both parties which shall be done in one day, to the extent possible, within the 30-day period of the effectivity of the temporary protection order issued. SEC. 26. Hearing.
(a) Rule applicable. The Revised Rule on Summary Procedure shall apply as far as practicable. (b) Period to hear petition. The court shall, to the extent possible, endeavor to conduct in one day the hearing en the merits for the issuance of a permanent protection order. Where the court is unable to finish the hearing within one day and the temporary protection order issued is due to expire, it may extend or renew the temporary protection order for a period of thirty days each time until final judgment is rendered. The court may modify the extended or renewed temporary protection order as may be necessary to meet the needs of the parties.
Secs. 27-28
291
(c) Evidence of history of abusive conduct. The court may allow the introduction of any evidence of history of abusive conduct of a respondent even if the same was not directed against the victim, provided the same is relevant. (d) Exclusion of persons from courtroom. The court may order the exclusion from the courtroom of all persons who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court: (1) would not enhance the ascertainment of truth; (2) would cause the party psychological harm or inability to effectively communicate due to embarrassment, fear or timidity; (3) would violate the right of a party to privacy; or (4) would be offensive to decency or public morals. SEC. 27. Prohibited acts. The court hearing a petition for a protection order shall not order, direct, force or in any way unduly influence the applicant for a protection order to compromise or abandon any of the reliefs sought in the petition for protection under the law and this Rule. Failure to comply with this section shall render the judge administratively liable. SEC. 28. Availability of live-link television to eyewitnesses or victims. (a) The testimony of a child, as an eyewitness or an offended party in an act of violence against women and their children, may be taken by live-link television. The application for an order for live-link testimony, the factors to be considered by the court in granting or denying the use of live-link television and the procedure involved in the actual taking of the testimony shall be followed as provided for in Section 25 of the Rule on Examination of a Child Witness.
292
Secs. 29-32
(b) The testimony of an adult female, victim of violence, may likewise be taken by live-link television, if it appears that she would suffer trauma if she were to testify in the presence of the offender or perpetrator. SEC. 29. Period to decide. (a) The court shall decide the petition within thirty days after termination of the hearing on the merits. (b) Where no hearing has been conducted, the court shall decide the petition within ten days after the termination of the preliminary conference. SEC. 30. Judgment. If the court finds the petition meritorious, it shall render judgment granting the offended party permanent protection against acts of violence and such other necessary reliefs provided in Section 11 of this Rule. The court shall not deny the issuance of a permanent protection order due to the lapse of time between the act of violence and the filing of the petition, subject to Section 24, R.A. No. 9262. The judgment shall be immediately executory. SEC. 31. Appeal. Any aggrieved party may appeal by filing a notice of appeal with the court that rendered the final order or judgment within fifteen days from notice and serving a copy thereof upon the adverse party. The appeal shall not stay the enforcement of the final order or judgment. Part II APPLICATION FOR PROTECTION ORDER AS AN INCIDENT IN A CRIMINAL OR CIVIL ACTION AND OTHER REMEDIES SEC. 32. Applicability to applications for protection orders filed as incidents in civil or criminal cases. The foregoing provisions shall also apply to applications for protection orders filed as incidents in criminal or civil actions.
Secs. 33-36
293
SEC. 33. When petition may proceed separately from or be deemed instituted with criminal ac tion.(a) An offended party may file a petition for protection order ahead of a criminal action arising from the same act. The same shall proceed separately from the criminal action and shall require only a preponderance of evidence. Upon motion of the petitioner, the court may consolidate the petition with the criminal action. (b) Where the offended party chooses to file a criminal action, the petition for protection order is deemed instituted with the criminal action, unless the offended party reserves the right to institute it separately. SEC. 34. When petition may proceed separately from or be deemed instituted with the civil action for damages. (a) An offended party may file a petition for protection order ahead of a civil action for damages arising from the same act. The same shall proceed separately from the civil action and shall require only a preponderance of evidence. Upon motion of the petitioner, the court may consolidate the petition with the civil action. (b) Where the offended party chooses to file a civil action for damages, the petition for protection order is deemed instituted with the civil action. SEC. 35. Prosecution of civil action for damages. The civil action for damages shall be governed by the 1997 Rules of Civil Procedure. However, the offended party cannot recover the same damages twice for the same act or omission. SEC. 36. Prosecution of criminal action. An act of violence covered by R.A. No. 9262 constituting a criminal offense shall subject the offender to criminal proceedings, which shall be governed by the Revised Rules of Criminal Procedure. Where the judgment of conviction declares that the guilt of the accused has been proved beyond
294
Secs. 37-39
reasonable doubt, the permanent protection order shall issue as a matter of course. Where the judgment of acquittal declares that the quantum of evidence is not enough to sustain a conviction beyond reasonable doubt, the court shall determine whether or not to issue a permanent protection order. Where the judgment of acquittal expressly declares that the basis of the offenders criminal liability did not exist, a permanent protection order shall not issue. A temporary protection order that may have been earlier issued shall be dissolved. SEC. 37. Bond to keep the peace. The court may also order any person, against whom a permanent protection order is issued, to give a bond to keep the peace. It shall be the duty of said person to present two sufficient sureties who shall undertake that such person will not commit the violence sought to be prevented, and that in case such violence is committed they will pay the amount determined by the court in its judgment. The court in its discretion shall fix the duration of the bond. Part III COMMON PROVISIONS SEC. 38. Reproduction of evidence. An order granting the issuance of a permanent protection order is without prejudice to a trial on the merits of the criminal or civil action involving violence against women and their children. The evidence adduced during the hearing for the issuance of a permanent protection order may, upon motion, be reproduced in the criminal or civil action without prejudice to the cross-examination of witnesses and presentation of additional evidence. SEC. 39. Jurisdiction and venue for crimi nal actions or civil actions. The Family Court shall have original and exclusive jurisdiction
Secs. 40-41
295
over cases of violence against women and their children regardless of the amount of damages claimed. The action may also be filed with the appropriate regional trial courts in places where there are no Family Courts, at the option of the offended party. SEC. 40. Privacy and confidentiality of proceedings. All hearings of cases of violence against women and their children shall be conducted in a manner consistent with the dignity of women and their children and respect for their privacy. Records of the cases shall be treated with utmost confidentiality. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer or other identifying information of the parties or an immediate family or household member, without their consent or without authority of the court, shall be liable for contempt of court and shall suffer the penalty of one year imprisonment and a fine of not more than Five Hundred Thousand (P500,000.00) Pesos. Part IV BARANGAY PROTECTION ORDER SEC. 41. Venue. Applications for barangay protection orders shall observe the following rules on venue: (a) where the parties reside, in the same barangay, the dispute shall be brought for settlement in said barangay; (b) where the parties reside in different barangays in the same city or municipality, the dispute shall be settled in the barangay where the respondent or any one of the respondents actually resides, at the choice of the complainant; (c) disputes arising at the workplace where the contending parties are employed or at the in-
296
Secs. 42-43
stitution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located; and (d) any objection relating to venue shall be raised before the Punong Barangay during the proceedings before him. Failure to do so shall be deemed a waiver of such objections. SEC. 42. Where to file complaint for violation of a barangay protection order. A complaint for violation of a barangay protection order may be filed with any metropolitan trial court, municipal trial court in cities, municipal trial court or municipal circuit trial court that has territorial jurisdiction over the barangay which issued the said protection order. SEC. 43. Procedure. (a) The complaint shall be accompanied by affidavits and other evidence proving the alleged violation; (b) Upon receipt of the complaint, the court shall issue an order requiring the accused to submit within five days his counter-affidavit, the affidavits of his witnesses and other evidence in his behalf; (c) If the court, upon a consideration of the complaint, the counter-affidavits of the accused and other evidence submitted by the parties, finds no cause or ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, it shall set the case for arraignment and trial; (d) Violation of a barangay protection order shall be punishable by imprisonment of thirty days without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed; and (e) A judgment of violation of a barangay protection order may be appealed to the regional trial court whose decision shall be final. An appeal from a judgment of violation of a barangay protection order shall not stay the enforcement of a protection
Secs. 44-45
297
order that might have been issued by the trial court during the trial. SEC. 44. Issuance of protection order when warranted; contempt of court for violation. During trial or upon judgment, the trial court may motu proprio issue a protection order when warranted. Violation of any protection order issued under this Section shall constitute contempt of court punishable under Rule 71 of the Rules of Court, without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed. SEC. 45. Effectivity. This Rule shall take effect on the 15th day of November 2004 following its publication in a newspaper of general circulation not later than 30 October 2004.
298
Title XI. SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW

FAMILY CODE. The Family Code provides for the rules on summary judicial proceedings for cases provided for in the said code. It is contained in Title XI, Chapter 1 of the Family Code. Chapter 1 SCOPE OF APPLICATION Article 238. Until modified by the Supreme Court, the procedural rules provided for in this Title shall apply as regards separation in fact between husband and wife, abandonment by one of the other, and incidents involving parental authority. (n) Chapter 2 SEPARATION IN FACT Article 239. When a husband and wife are separated in fact or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts. The petition shall attach the proposed deed, if any, embodying the transaction, and, if none shall describe in detail the said transaction and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court. (n)
298
Arts. 240-241
299
JUDICIAL APPROVAL. If the property regime is the absolute community of property or the conjugal partnership of gains, the spouses are co-owners or partners of the community property or partnership property. A spouse cannot alienate, dispose or encumber community or conjugal property without the consent of the other spouse. In case they are separated in fact or one spouse abandons the other, this will not generally affect the absolute community of property or the conjugal partnership of gains. Hence, if any of the spouses desires to enter into any transaction, like the sale of co-owned properties, he or she can go to court for approval of the sale if he or she cannot obtain the consent of the other spouse. The petition should be verified which means that it should be under oath stating that the petitioner has caused the preparation and the filing of the petition, that he or she has read the contents of the petition and that he or she knows that the contents are true of his or her own knowledge and belief. An unverified petition cannot be given consideration by the court. The approval of the court shall protect the transacting spouse and third persons who are directly affected by the transaction. Article 240. Claims for damages by either spouse, except costs of the proceedings, may be litigated only in a separate action. (n) DAMAGES. Claim for damages usually entail a lenghty process. Because time is of the essence of the court case contemplated by the law in these cases, the law provides that damages, except costs of the proceedings, may be litigated only in a separate action. Article 241. Jurisdiction over the petition shall, upon proof of notice to the other spouse, be exercised by the proper court authorized to hear family cases, if one exists, or in the regional trial court or its equivalent sitting in the place where either of the spouses resides. (n) PROPER COURT. Republic Act Numbered 8369, otherwise known as the Family Courts Act of 1997, established the family courts which are exclusively tasked to take cognizance of family cases such as custody of children, annulment or nullity of cases, adoption and
300
Arts. 242-243
termination of parental authority. Specifically, the law provides that summary judicial proceedings brought under the Family Code shall be heard in the proper family court with jurisdiction to try the case (Section 5[j] of R.A. No. 8369). Article 242. Upon the filing of the petition, the court shall notify the other spouse, whose consent to the transaction is required, of said petition, ordering said spouse to show cause why the petition should not be granted, on or before the date set in said notice for the initial conference. The notice shall be accompanied by a copy of the petition and shall be served at the last known address of the spouse concerned. (n) DUE PROCESS. Once the petition is filed, due process requires that the other party, called the respondent, shall be given the chance to comment on the petition and to show cause why the petition should not be granted. The respondent likewise may nevertheless manifest his or her agreement in which case the suit shall become moot and academic. Article 243. A preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel. After the initial conference, if the court deems it useful, the parties may be assisted by counsel at the succeeding conferences and hearings. (n) PRELIMINARY CONFERENCE. The preliminary conference is aimed at having the parties settle amicably their differences on the transaction involved so that the judicial proceedings can be further shortened. During the initial conference, the parties will not be assisted by counsel. The judge will conduct the proceedings personally. Lawyers are not allowed to be present so that the proceedings will not become unduly adversarial which can lead to a protracted case. Since the issue pertains to very personal family decisions, it is better to let the parties decide the issues by themselves. However, if the judge finds out that the issues are complicated and that any of the spouses does not really have a complete understanding of the transaction and its consequences, lawyers may be allowed to assist the parties in the next hearings.
Arts. 244-247
301
Article 244. In case of non-appearance of the spouse whose consent is sought, the court shall inquire into the reasons for his failure to appear, and shall require such appearance, if possible. (n) NON-APPEARANCE. Due process requires that the other party must be heard. Hence the court shall inquire into the reasons for the failure of the spouse whose consent is sought to appear in court. Article 245. If, despite all efforts, the attendance of the non-consenting spouse is not secured, the court may proceed ex parte and render judgment as the facts and circumstances may warrant. In any case, the judge shall endeavor to protect the interests of the non-appearing spouse. (n) EX-PARTE PROCEEDING. In case the non-consenting spouse does not appear despite efforts from the court requiring him or her to attend, the case will proceed ex-parte or even without the presence of the non-consenting party. Judgment will be rendered on the basis of the facts and evidence presented. The judge may grant or deny the petition. In all cases, the judge shall endeavor to protect the interest of the non-appearing spouse. Article 246. If the petition is not resolved at the initial conference, said petition shall be decided in a summary hearing on the basis of affidavits, documentary evidence or oral testimonies at the sound discretion of the court. If testimony is needed, the court shall specify the witnesses to be heard and the subject-matter of their testimonies, directing the parties to present said witnesses. (n) SUMMARY PROCEEDING. The case shall be summary and the manner by which it will proceed shall depend on the appreciation of the situation by the judge. The judge can decide it on mere affidavits or he or she may require testimonies from the parties. He or she may even decide what sort of testimony he or she wants to know and also what sort of witnesses should be presented. Article 247. The judgment of the court shall be immediately final and executory. (n)
302
Art. 248
FINALITY. Usually, a decision becomes final and executory after the lapse of the reglementary period of 15 days from the time the parties receive a copy of the decision. In Summary Proceedings under the Family Code, there is no period provided for by law for perfection of an appeal precisely because it is final and executory upon mere notice to the parties. The right to appeal the decision is not granted to the parties. In the event that the decision is elevated to the Court of Appeals, the latter will not have jurisdiction to take cognizance of the appeal and should dismiss the appealed-case outright.1 However, if the lower court decision is in itself void, the aggrieved party can still file a case with the higher court to nullify the decision on the basis that it is invalid from the beginning One good reason to assert that the decision is void is when the party was not notified of the case depriving him of his right to due process. But, without an injunction from the higher court, the decision can be executed even if it is pending in the said higher court. Article 248. The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules. (n) ADMINISTRATION OF PROPERTY. Article 248 refers to paragraph 3 of both Articles 100 and 127 which essentially provides that the separation in fact between husband and wife shall not affect either the absolute community of property or the conjugal partnership of gains except that, among others, in the absence of sufficient community or conjugal property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latters share.
Republic vs. Bermudez-Lorina, 449 SCRA 57.
Arts. 249-252
303
Chapter 3 INCIDENTS INVOLVING PARENTAL AUTHORITY Article 249. Petitions under Articles 223, 225 and 235 of this Code involving parental authority shall be verified. (n) VERIFIED PETITIONS. Petitions under Article 223 and 225 must be verified. Article 235 on emancipation has already been repealed by Republic Act No. 6809. Article 223 deals with a case seeking a court order providing for disciplinary measures over the child. Article 235 deals with a case for the approval of the bond required of parents who exercise parental authority over the property of their children. Article 250. Such petitions shall be filed in the proper court of the place where the child resides. (n) VENUE. The venue of the case shall be the court of the place where the child resides. This is for the benefit and convenience of the child. Article 251. Upon the filing of the petition, the court shall notify the parents or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child. (n) NOTIFICATION. The court must undertake everything possible for the benefit of the child and must issue decisions having the paramount interest of the child as the inflexible criterion. Hence, it is the duty of the court to notify people who have parental authority over the children to appear in court so that the court can itself probe these people on the real necessity for the filing of the case. For instance, in an action seeking the disciplinary measures to be imposed on the child, it may turn out that the problem does not lie with the child but with the parent who is grossly abusive. In such a case, the court may even terminate or suspend the parental authority of the abusing parent. Article 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable. (n)
304
Art. 253
PROCEEDINGS. As much as practicable and insofar as they are applicable, the proceedings in the court cases referred to in Articles 223 and 225 shall likewise be summary in nature. This is for the benefit of the child. For instance, corrective measures which can be imposed on an incorrigible child must be done at the earliest possible time so that, in case of commitment of the child, the same can be quickly implemented with end in view of returning the child to his or her parents as soon as possible. Also, in case of court approval of the bond required of a parent administering the property of his or her child, the proceeding must be summary in order that this legal measure for the further protection of the child can be immediately undertaken by the parent. Chapter 4 OTHER MATTERS SUBJECT TO SUMMARY PROCEEDINGS Article 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. OTHER CASES. Summary proceedings shall also be the procedure under Article 41 which deals with the judicial declaration of a spouse as presumptively dead, Article 51 which deals with an action of a child for the delivery of his or her presumptive legitime, Article 69 dealing with the judicial determination of the family domicile in case of disagreement of the spouses, Article 73 dealing with the court adjudication of the validity of a spouses objection to the profession of the other spouse, Articles 96 and 124 which involve the court annulment of the husbands decision in the administration and enjoyment of the community or conjugal property, and Article 217 dealing with the court order entrusting foundlings, abandoned, neglected or abused children and other children similarly situated to heads of childrens homes, orphanages and similar institutions duly accredited by the proper government agency. The appointment of the spouse as the sole administrator under Articles 96 and 124 of the Family Code shall be in a summary proceeding under Article 253 of the Family Code if it involves a situation where the other spouse is absent or separated in fact or has abandoned the other or the consent is withheld. If the subject spouse is an incompetent who is in a comatose or semi-comatose condition, a
Art. 253
305
victim of stroke, cerebrovascular accident, without motor and mental faculties, and with diagnosis of brain stem infarct, the proper remedy is a judicial guardianship proceeding under Rule 93 of the 1964 Revised Rules of Court and not a summary proceeding under the Family Code.1 In any event, should the administering spouse desires to sell real property as such administrator of the community or conjugal property, he or she must observe the procedure for the sale of the wards estate required of judicial guardians under Rule 95 of the 1964 Revised Rules of Court, not the summary judicial proceedings under the Family Code. This is so because, as the administrator spouse, he or she must perform the duties of a guardian.2 JUDICIAL DECLARATION OF PRESUMPTIVE DEATH. The summary proceeding for the judicial declaration of presumptive death under Article 41 is not a special proceeding but an ordinary civil action which is summary in nature pursuant to the Family Code. Hence, the normal procedure for questioning the trial court decision with the Court of Appeals is by perfecting an appeal through the mere filing of a notice of appeal.3 Once it reaches the Court of Appeals however, the said court has no recourse but to dismiss the appeal considering that the rules for summary proceedings provided for in Chapter 2, Title XI likewise govern cases on judicial declaration of presumptive death under Article 41. Article 247 of Chapter 2 of Title XI of the Family Code provides that all decisions rendered in summary proceedings pursuant to the Family Code are final and executory. Hence the parties have no right to appeal the case. The Court of Appeals is without jurisdiction to take cognizance of the appeal.4
Uy vs. Court of Appeals, G.R. No. 109557, November 29, 2000. Uy vs. Court of Appeals, G.R. No. 109557, November 29, 2000. 3 Republic vs. Court of Appeals, et al., G.R. No. 163604, May 6, 2005. 4 Republic vs. Bermudez-Lorina, 449 SCRA 57.
1 2
306
Art. 253
FAMILY COURTS ACT

[REPUBLIC ACT NO. 8369]
AN ACT ESTABLISHING FAMILY COURTS, GRANTING THEM EXCLUSIVE ORIGINAL JURISDICTION OVER CHILD AND FAMILY CASES, AMENDING BATAS PAMBANSA BILANG 129, AS AMENDED, OTHERWISE KNOWN AS ACT OF 1980, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Title. This Act shall be known as the Family Courts Act of 1997. Sec. 2. Statement of National Policies. The State shall protect the rights and promote the welfare of children in keeping with the mandate of the Constitution and the precepts of the United Nations Convention on the Rights of the Child. The State shall provide a system of adjudication for youthful offenders which takes into account their peculiar circumstances. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. The courts shall preserve the solidarity of the family, provide procedures for the reconciliation of spouses and the amicable settlement of family controversy. Sec. 3. Establishment of Family Courts. There shall be established a Family Court in every province and city in the country. In case where the city is the capital of the province, the Family Court shall be
306
Secs. 4-5
FAMILY COURTS ACT [REPUBLIC ACT NO. 8369]
307
established in the municipality which has the highest population. Sec. 4. Qualification and Training of Family Court Judges. Section 15 of Batas Pambansa Blg. 129, as amended, is hereby further amended to read as follows: SECTION 15. (a) Qualification. No person shall be appointed Regional Trial Judge or Presiding Judge of the Family Court unless he is a natural-born citizen of the Philippines, at least thirty-five (35) years of age, and, for at least ten (10) years, has been engaged in the practice of law in the Philippines or has held a public office in the Philippines requiring admission to the practice of law as indispensable requisite. (b) Training of Family Court Judges. The Presiding Judge, as well as the court personnel of the Family Courts, shall undergo training and must have the experience and demonstrated ability in dealing with child and family cases. The Supreme Court shall provide a continuing education program on child and family laws, procedure and other related disciplines to judges and personnel of such courts. PHILIPPINE JUDICIAL ACADEMY. Republic Act No. 8557, otherwise known as An Act Establishing the Philippine Judicial Academy, Defining its Powers and Functions, Appropriating Funds Therefore, and for Other Purposes, institutionalized the Philippine Judicial Academy (PHILJA) as the training school for justices, judges, court personnel, lawyers, and aspirants to judicial posts. Sec. 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases: a) Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age but not less than nine (9) years of age or where one or more of the victims is
308
Sec. 5
a minor at the time of the commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code; b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter; c) Petitions for adoption of children and the revocation thereof; d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains; e) ment; Petitions for support and/or acknowledg-
f) Summary judicial proceedings brought under the provisions of Executive Order No. 209, otherwise known as the Family Code of the Philippines; g) Petitions for declaration of status of children as abandoned, dependent o neglected children, petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority and other cases cognizable under Presidential Decree No. 603, Executive Order No. 56 (Series of 1986), and other related laws; h) home; Petitions for the constitution of the family
i) Cases against minors cognizable under the Dangerous Drugs Act, as amended; j) Violations of Republic Act No. 7610, otherwise known as the Special Protection of Children
Sec. 6
309
Against Child Abuse, Exploitation and Discrimination Act, as amended by Republic Act No. 7658; and k) Cases of domestic violence against: 1) Women which are acts of gender based violence that results, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a womans personhood, integrity and freedom movement; and 2) Children which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development. If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties. If any question involving any of the above matters should arise as an incident in any case pending in the regular courts, said incident shall be determined in that court. HABEAS CORPUS INVOLVING MINORS. While Section 5(b) provides that the Family Court shall have exclusive original jurisdiction to hear and decide Habeas Corpus cases involving minors, this does not negate the concurrent jurisdiction of the Court of Appeals and the Supreme Court to also take cognizance of such cases.1 Sec. 6. Use of Income. All Family Courts shall be allowed the use of ten percent (10%) of their income derived from filing and other court fees under Rule 141 of the Rules of Court for research and other operating expenses including capital outlay: Provided, That this benefit shall likewise be enjoyed by all courts of justice.
1 In the Matter of the Application of the Issuance of Writ of Habeas Corpus of Richard Brian Thornton, 436 SCRA 550.
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Secs. 7-9
The Supreme Court shall promulgate the necessary guidelines to effectively implement the provisions of this section. Sec. 7. Special Provisional Remedies. In cases of violence among immediate family members living in the same domicile or household, the Family Court may issue a restraining order against the accused of defendant upon verified application by the complainant or the victim for relief from abuse. The court may order the temporary custody of children in all civil actions for their custody. The court may also order support pendente lite, including deduction from the salary and use of conjugal home and other properties in all civil actions for support. Sec. 8. Supervision of Youth Detention Homes. The judge of the Family Court shall have direct control and supervision of the youth detention home which the local government unit shall establish to separate the youth offenders from adult criminals: Provided, however, That alternatives to detention and institutional care shall be made available to the accused including counseling, recognizance, bail, community continuum, or diversions from the justice system: Provided, further, That the human rights of the accused are fully respected in a manner appropriate to their well-being. Sec. 9. Social Services and Counseling Division. Under the guidance of the Department of Social Welfare and Development (DSWD), a Social Services and Counseling Division (SSCD) shall be established in each judicial region as the Supreme Court shall deem necessary based on the number of juvenile and family cases existing in such jurisdiction. It shall provide appropriate social services to all juvenile and family cases filed with the court and recommend the proper social action. It shall also develop programs, formulate uniform policies and procedures, and provide technical supervision
Secs. 10-12
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and monitoring of all SSCD in coordination with the judge. Sec. 10. Social Services and Counseling Division Staff. The SSCD shall have a staff composed of qualified social workers and other personnel with academic preparation in behavioral sciences to carry out the duties of conducting intake assessment, social case studies, casework and counseling, and other social services that may be needed in connection with cases filed with the court: Provided, however, That in adoption cases and in petitions for declaration of abandonment, the case studies may be prepared by social workers of duly licensed child caring or child placement agencies, or the DSWD. When warranted, the division shall recommend that the court avail itself of consultative services of psychiatrists, psychologists, and other qualified specialists presently employed in other departments of the government in connection with its cases. The position of Social Work Adviser shall be created under the Office of the Court Administrator, who shall monitor and supervise the SSCD of the Regional Trial Court. Sec. 11. Alternative Social Services. In accordance with Section 17 of this Act, in areas where no Family Court has been established or no Regional Trial Court was designated by the Supreme Court due to the limited number of cases, the DSWD shall designate and assign qualified, trained, and DSWD accredited social workers of the local government units to handle juvenile and family cases filed in the designated Regional Trial Court of the place. Sec. 12. Privacy and Confidentiality of Proceedings. All hearings and conciliation of the child and family cases shall be treated in a manner consistent with the promotion of the childs and the familys dignity and worth, and shall respect their privacy at all stages of the proceedings. Records of the cases shall be dealt with utmost confidentiality and the
312
Secs. 13-17
identity of parties shall not be divulged unless necessary and with authority of the judge. Sec. 13. Special Rules of Procedure. The Supreme Court shall promulgate special rules of procedure for the transfer of cases to the new courts during the transition period and for the disposition of family cases with the best interests of the child and the protection of the family as primary consideration taking into account the United Nations Convention on the Rights of the Child. Sec. 14. Appeals. Decisions and orders of the court shall be appealed in the same manner and subject to the same conditions as appeals from the ordinary Regional Trial Courts. Sec. 15. Appropriations. The amount necessary to carry out the provisions of this Act shall be included in the General Appropriations Act of the year following in its enactment into law and thereafter. Sec. 16. Implementing Rules and Regulations. The Supreme Court, in coordination with the DSWD, shall formulate the necessary rules and regulations for the effective implementation of the social aspects of this Act. Sec. 17. Transitory Provisions. Pending the establishment of such Family Courts, the Supreme Court shall designate from among the branches of the Regional Trial Court at least one Family Court in each of the cities of Manila, Quezon, Pasay, Caloocan, Makati, Pasig, Mandaluyong, Muntinlupa, Laoag, Baguio, Santiago, Dagupan, Olongapo, Cabanatuan, San Jose, Angeles, Cavite, Batangas, Lucena, Naga, Iriga, Legazpi, Roxas, Iloilo, Bacolod, Dumaguete, Tacloban, Cebu, Mandaue, Tagbilaran, Surigao, Butuan, Cagayan de Oro, Davao, General Santos, Oroquieta, Ozamis, Dipolog, Zamboanga, Pagadian, Iligan, and in such other places as the Supreme Court may deem necessary.
Secs. 18-20
313
Additional cases other than those provided in Section 5 may be assigned to the Family Courts when their dockets permit: Provided, That such additional cases shall not be heard on the same day family cases are heard. In areas where there are no Family Courts, the cases referred to in Section 5 of this Act shall be adjudicated by the Regional Trial Court. Sec. 18. Separability Clause. In case any provision of this Act is declared unconstitutional, the other provisions shall remain in effect. Sec. 19. Repealing Clause. All other laws, decrees, executive orders, rules or regulations inconsistent herewith are hereby repealed, amended or modified accordingly. Sec. 20. Effectivity. This Act shall take effect fifteen (15) days after its publication in at least two (2) national newspapers of general circulation. Approved: (SGD.) JOSE DE VENECIA, JR. Speaker of the House of Representatives (SGD.) ERNESTO M. MACEDA President of the Senate This Act, which is a consolidation of Senate Bill No. 1205 and House Bill No. 9292 was finally passed by the Senate and the House of Representatives on October 13, 1997 and October 9, 1997, respectively. (SGD.) ROBERTO P. NAZARENO Secretary General House of Representatives (SGD.) LORENZO E. LEYNES, JR. Secretary of the Senate Approved: October 28, 1997 (SGD.) FIDEL V. RAMOS President of the Philippines
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Secs. 18-20
JUVENILE JUSTICE AND WELFARE ACT OF 2006

AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER THE DEPARTMENT OF JUSTICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
TITLE I GOVERNING PRINCIPLES CHAPTER 1 TITLE, POLICY AND DEFINITION OF TERMS
SECTION 1. Short Title and Scope. This Act shall be known as the Juvenile Justice and Welfare Act of 2006. It shall cover the different stages involving children at risk and children in conflict with the law from prevention to rehabilitation and reintegration. SEC. 2. Declaration of State Policy. The following State policies shall be observed at all times: (a) The State recognizes the vital role of children and youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. (b) The State shall protect the best interests of the child through measures that will ensure the observance of international standards of child protection, especially those to which the Philippines is a party. Proceedings before any
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Sec. 3
JUVENILE JUSTICE AND WELFARE ACT OF 2006 [REPUBLIC ACT NO. 9344]
315
authority shall be conducted in the best interest of the child and in a manner which allows the child to participate and to express himself/herself freely. The participation of children in the program and policy formulation and implementation related to juvenile justice and welfare shall be ensured by the concerned government agency. (c) The State likewise recognizes the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty and exploitation, and other conditions prejudicial to their development. (d) Pursuant to Article 40 of the United Nations Convention on the Rights of the Child, the State recognizes the right of every child alleged as, accused of, adjudged, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the childs sense of dignity and worth, taking into account the childs age and desirability of promoting his/her reintegration. Whenever appropriate and desirable, the State shall adopt measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. It shall ensure that children are dealt with in a manner appropriate to their well-being by providing for, among others, a variety of disposition measures such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programs and other alternatives to institutional care. (e) The administration of the juvenile justice and welfare system shall take into consideration the cultural and religious perspectives of the Filipino people, particularly the indigenous peoples and the Muslims, consistent with the protection of the rights of children belonging to these communities. The State shall apply the principles of restorative justice in all its laws, policies and programs applicable to children in conflict with the law.
(f)
SEC. 3. Liberal Construction of this Act. In case of doubt, the interpretation of any of the provisions of this Act, including its implementing rules and regulations (IRRs), shall be construed liberally in favor of the child in conflict with the law.
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Sec. 4
SEC. 4. Definition of Terms. The following terms as used in this Act shall be defined as follows: (a) Bail refers to the security given for the release of the person in custody of the law, furnished by him/her or a bondsman, to guarantee his/her appearance before any court. Bail may be given in the form of corporate security, property bond, cash deposit, or recognizance. (b) Best Interest of the Child refers to the totality of the circumstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the childs physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. (e) Child refers to a person under the age of eighteen (18) years. (d) Child at Risk refers to a child who is vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances, such as, but not limited to, the following: (1) being abused by any person through sexual, physical, psychological, mental, economic or any other means and the parents or guardian refuse, are unwilling, or unable to provide protection for the child; (2) being exploited including sexually or economically; (3) being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be found; (4) coming from a dysfunctional or broken family or without a parent or guardian; (5) being out of school; (6) being a streetchild; (7) being a member of a gang; (8) living in a community with a high level of criminality or drug abuse; and (9) living in situations of armed conflict.
Sec. 4
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(e) Child in Conflict with the Law refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (f) Community-based Programs refers to the programs provided in a community setting developed for purposes of intervention and diversion, as well as rehabilitation of the child in conflict with the law, for reintegration into his/her family and/or community.
(g) Court refers to a family court or, in places where there are no family courts, any regional trial court. (h) Deprivation of Liberty refers to any form of detention or imprisonment, or to the placement of a child in conflict with the law in a public or private custodial setting, from which the child in conflict with the law is not permitted to leave at will by order of any judicial or administrative authority. (i) Diversion refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. Diversion Program refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings.
(j)
(k) Initial Contact With the Child refers to the apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no necessity to place the child alleged to be in conflict with the law under immediate custody. (l) Intervention refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills
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Sec. 4
training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. (m) Juvenile Justice and Welfare System refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. (n) Law Enforcement Officer refers to the person in authority or his/her agent as defined in Article 152 of the Revised Penal Code, including a barangay tanod. (o) Offense refers to any act or omission whether punishable under special laws or the Revised Penal Code, as amended. (p) Recognizance refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court of the child in conflict with the law, when required. (q) Restorative Justice refers to a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. It seeks to obtain reparation for the victim; reconciliation of the offender, the offended and the community; and reassurance to the offender that he/she can be reintegrated into society. It also enhances public safety by activating the offender, the victim and the community in prevention strategies. (r) Status Offenses refers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts. These shall include curfew violations; truancy, parental disobedience and the like.
(s) Youth Detention Home refers to a 24-hour child-caring institution managed by accredited local government units (LGUs) and licensed and/or accredited nongovernment organizations (NGOs) providing short-term residential care for children in conflict with the law who are awaiting court disposition of their cases or transfer to other agencies or jurisdiction.
Sec. 5
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(t)
Youth Rehabilitation Center refers to a 24-hour residential care facility managed by the Department of Social Welfare and Development (DSWD), LGUs, licensed and/or accredited NGOs monitored by the DSWD, which provides care, treatment and rehabilitation services for children in conflict with the law. Rehabilitation services are provided under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end view of reintegrating them into their families and communities as socially functioning individuals. Physical mobility of residents of said centers may be restricted pending court disposition of the charges against them.
(u) Victimless Crimes refers to offenses where there is no private offended party.
CHAPTER 2 PRINCIPLES IN THE ADMINISTRATION OF JUVENILE JUSTICE AND WELFARE
SEC. 5. Rights of the Child in Conflict with the Law. Every child in conflict with the law shall have the following rights, including but not limited to: (a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; (b) the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release; (c) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment being a disposition of last resort, and which shall be for the shortest appropriate period of time; (d) the right to be treated with humanity and respect, for the inherent dignity of the person, and in a manner which takes into account the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from adult offenders at all times. No child shall be detained together with adult offenders. He/She shall be conveyed separately to or from court. He/She shall await hearing of his/her own case in a separate holding area. A child in conflict with the law shall have the right to main-
320
Sec. 5
tain contact with his/her family through correspondence and visits, save in exceptional circumstances; (e) the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action; (f) the right to bail and recognizance, in appropriate cases; (g) the right to testify as a witness in hid/her own behalf under the rule on examination of a child witness; (h) the right to have his/her privacy respected fully at all stages of the proceedings; (i) (j) the right to diversion if he/she is qualified and voluntarily avails of the same; the right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative justice;
(k) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty; (l) in general, the right to automatic suspension of sentence; (m) the right to probation as an alternative to imprisonment, if qualified under the Probation Law; (n) the right to be free from liability for perjury, concealment or misrepresentation; and (o) other rights as provided for under existing laws, rules and regulations.
The State further adopts the provisions of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice or Beijing Rules, United Nations Guidelines for the Prevention of Juvenile Delinquency or the Riyadh Guidelines, and the United Nations Rules for the Protection of Juveniles Deprived of Liberty.
Secs. 6-7
321
SEC. 6. Minimum Age of Criminal Responsibility. A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. SEC. 7. Determination ofAge. The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The age of a child may be determined from the childs birth certificate, baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor. Any person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court may file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all interested parties. If a case has been filed against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion to determine the age of the child in the same court where the case is pending. Pending hearing on the said motion, proceedings on the main case shall be suspended. In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law.
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Sec. 8
TITLE II STRUCTURES IN THE ADMINISTRATION OF JUVENILE JUSTICE AND WELFARE
SEC. 8. Juvenile Justice and Welfare Council (JJWC). A Juvenile Justice and Welfare Council (JJWC) is hereby created and attached to the Department of Justice and placed under its administrative supervision. The JJWC shall be chaired by an undersecretary of the Department of Social Welfare and Development. It shall ensure the effective implementation of this Act and coordination among the following agencies: (a) Council for the Welfare of Children (CWC); (b) Department of Education (DepEd); (c) Department of the Interior and Local Government (DILG); (d) Public Attorneys Office (PAO); (e) Bureau of Corrections (BUCOR); (f) Parole and Probation Administration (PPA) (g) National Bureau of Investigation (NBI); (h) Philippine National Police (PNP);. (i) (i) Bureau of Jail Management and Penology (BJMP); Commission on Human Rights (CHR);
(k) Technical Education and Skills Development Authority (TESDA); (l) National Youth Commission (NYC); and (m) Other institutions focused on juvenile justice and intervention programs. The JJWC shall be composed of representatives, whose ranks shall not be lower than director, to be designated by the concerned heads of the following departments or agencies: (a) Department of Justice (DOJ); (b) Department of Social Welfare and Development (DSWD); (c) Council for the Welfare of Children (CWC);
Sec. 9
323
(d) Department of Education (DepEd); (e) Department of the Interior and Local Government (DILG); (f) Commission on Human Rights (CHR); (g) National Youth Commission (NYC); and (h) Two (2) representatives from NGOs, one to be designated by the Secretary of Justice and the other to be designated by the Secretary of Social Welfare and Development. The JJWC shall convene within fifteen (15) days from the effectivity of this Act. The Secretary of Justice and the Secretary of Social Welfare and Development shall determine the organizational structure and staffing pattern of the JJWC. The JJWC shall coordinate with the Office of the Court Administrator and the Philippine Judicial Academy to ensure the realization of its mandate and the proper discharge of its duties and functions, as herein provided. SEC. 9. Duties and Functions of the JJWC. The JJWC shall have the following duties and functions: (a) To oversee the implementation of this Act; (b) To advise the President on all matters and policies relating to juvenile justice and welfare; (c) To assist the concerned agencies in the review and redrafting of existing policies/regulations or in the formulation of new ones in line with the provisions of this Act;
(d) To periodically develop a comprehensive 3 to 5-year national juvenile intervention program, with the participation of government agencies concerned, NGOs and youth organizations; (e) To coordinate the implementation of the juvenile intervention programs and activities by national government agencies and other activities which may have an important bearing on the success of the entire national juvenile intervention program. All programs relating to juvenile justice and welfare shall be adopted in consultation with the JJWC;
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Sec. 9
(f) To formulate and recommend policies and strategies in consultation with children for the prevention of juvenile delinquency and the administration of justice, as well as for the treatment and rehabilitation of the children in conflict with the law; (g) To collect relevant information and conduct continuing research and support evaluations and studies on all matters relating to juvenile justice and welfare, such as but not limited to: (1) the performance and results achieved by juvenile intervention programs and by activities of the local government units and other government agencies; (2) the periodic trends, problems and causes of juvenile delinquency and crimes; and (3) the particular needs of children in conflict with the law in custody. The data gathered shall be used by the JJWC in the improvement of the administration of juvenile justice and welfare system. The JJWC shall set up a mechanism to ensure that children are involved in research and policy development. (h) Through duly designated persons and with the assistance of the agencies provided in the preceding section, to conduct regular inspections in detention and rehabilitation facilities and to undertake spot inspections on their own initiative in order to check compliance with the standards provided herein and to make the necessary recommendations to appropriate agencies; (i) To initiate and coordinate the conduct of trainings for the personnel of the agencies involved in the administration of the juvenile justice and welfare system and the juvenile intervention program; To submit an annual report to the President on the implementation of this Act; and
(j)
(k) To perform such other functions as may be necessary to implement the provisions of this Act.
Secs. 10-13
325
SEC. 10. Policies and Procedures on Juvenile Justice and Welfare. All government agencies enumerated in Section 8 shall, with the assistance of the JJWC and within one (1) year from the effectivity of this Act, draft policies and procedures consistent with the standards set in the law. These policies and procedures shall be modified accordingly in consultation with the JJWC upon the completion of the national juvenile intervention program as provided under Section 9(d). SEC. 11. Child Rights Center (CRC). The existing Child Rights Center of the Commission on Human Rights shall ensure that the status, rights and interests of children are upheld in accordance with the Constitution and international instruments on human rights. The CHR shall strengthen the monitoring of government compliance of all treaty obligations, including the timely and regular submission of reports before the treaty bodies, as well as the implementation and dissemination of recommendations and conclusions by government agencies as well as NGOs and civil society.
TITLE III PREVENTION OF JUVENILE DELINQUENCY CHAPTER 1 THE ROLE OF THE DIFFERENT SECTORS
SEC. 12. The Family. The family shall be responsible for the primary nurturing and rearing of children which is critical in delinquency prevention. As far as practicable and in accordance with the procedures of this Act, a child in conflict with the law shall be maintained in his/her family. SEC. 13. The Educational System. Educational institutions shall work together with families, community organizations and agencies in the prevention of juvenile delinquency and in the rehabilitation and reintegration of child in conflict with the law. Schools shall provide adequate, necessary and individualized educational schemes for children manifesting difficult behavior and children in conflict with the law. In cases where children in conflict with the law are taken into custody or detained in rehabilitation centers, they should be provided the opportunity to continue learning under an alternative learning system with basic literacy program or non-formal education accreditation equivalency system.
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Secs. 14-17
SEC. 14. The Role of the Mass Media. The mass media shall play an active role in the promotion of child rights, and delinquency prevention by relaying consistent messages through a balanced approach. Media practitioners shall, therefore, have the duty to maintain the highest critical and professional standards in reporting and covering cases of children in conflict with the law. In all publicity concerning children, the best interest of the child should be the primordial and paramount concern. Any undue, inappropriate and sensationalized publicity of any case involving a child in conflict with the law is hereby declared a violation of the childs rights. SEC. 15. Establishment and Strengthening of Local Councils for the Protection of Children. Local Councils for the Protection of Children (LCPC) shall be established in all levels of local government, and where they have already been established, they shall be strengthened within one (1) year from the effectivity of this Act. Membership in the LCPC shall be chosen from among the responsible members of the community, including a representative from the youth sector, as well as representatives from government and private agencies concerned with the welfare of children. The local council shall serve as the primary agency to coordinate with and assist the LGU concerned for the adoption of a comprehensive plan on delinquency prevention, and to oversee its proper implementation. One percent (1%) of the internal revenue allotment of barangays, municipalities and cities shall be allocated for the strengthening and implementation of the programs of the LCPC: Provided, That the disbursement of the fund shall be made by the LGU concerned. SEC. 16. Appointment of Local Social Welfare and Development Officer. All LGUs shall appoint a duly licensed social worker as its local social welfare and development officer tasked to assist children in conflict with the law. SEC. 17. The Sangguniang Kabataan. The Sangguniang Kabataan (SK) shall coordinate with the LCPC in the formulation and implementation of juvenile intervention and diversion programs in the community.
Secs. 18-19
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CHAPTER 2 COMPREHENSIVE JUVENILE INTERVENTION PROGRAM
SEC. 18. Development of a Comprehensive Juvenile Intervention Program. A Comprehensive juvenile intervention program covering at least a 3-year period shall be instituted in LGUs from the barangay to the provincial level. The LGUs shall set aside an amount necessary to implement their respective juvenile intervention programs in their annual budget. The LGUs, in coordination with the LCPC, shall call on all sectors concerned, particularly the child-focused institutions, NGOs, peoples organizations, educational institutions and government agencies involved in delinquency prevention to participate in the planning process and implementation of juvenile intervention programs. Such programs shall be implemented consistent with the national program formulated and designed by the JJWC. The implementation of the comprehensive juvenile intervention program shall be reviewed and assessed annually by the LGUs in coordination with the LCPC. Results of the assessment shall be submitted by the provincial and city governments to the JJWC not later than March 30 of every year. SEC. 19. Community-based Programs on Juvenile Justice and Welfare. Community-based programs on juvenile justice and welfare shall be instituted by the LGUs through the LCPC, school, youth organizations and other concerned agencies. The LGUs shall provide community-based services which respond to the special needs, problems, interests and concerns of children and which offer appropriate counseling and guidance to them and their families. These programs shall consist of three levels: (a) Primary intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending; (b) Secondary intervention includes measures to assist children at risk; and (c) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other measures to prevent re-offending.
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Secs. 20-21
TITLE IV TREATMENT OF CHILDREN BELOW THE AGE OF CRIMINAL RESPONSIBILITY
SEC. 20. Children Below the Age of Criminal Responsibility. If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the childs nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered nongovernmental or religious organization; a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); a local social welfare and development officer; or when and where appropriate, the DSWD. If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise, known as The Child and Youth Welfare Code.
TITLE V JUVENILE JUSTICE AND WELFARE SYSTEM CHAPTER 1 INITIAL CONTACT WITH THE CHILD
SEC. 21. Procedure for Taking the Child into Custody. From the moment a child is taken into custody, the law enforcement officer shall: (a) Explain to the child in simple language and in a dialect that he/she can understand why he/she is being placed under custody and the offense that he/she allegedly committed; (b) Inform the child of the reason for such custody and advise the child of his/her constitutional rights in a language or dialect understood by him/her;
Sec. 21
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(c)
Properly identify himself/herself and present proper identification to the child;
(d) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on the child in conflict with the law; (e) Avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed; (f) Refrain from subjecting the child in conflict with the law to greater restraint than is necessary for his/her apprehension;
(g) Avoid violence or unnecessary force; (h) Determine the age of the child pursuant to Section 7 of this Act; (i) Immediately but not later than eight (8) hours after apprehension, turn over custody of the child to the Social Welfare and Development Office or other accredited NGOs, and notify the childs apprehension. The social welfare and development officer shall explain to the child and the childs parents/guardians the consequences of the childs act with a view towards counseling and rehabilitation, diversion from the criminal justice system, and reparation, if appropriate; Take the child immediately to the proper medical and health officer for a thorough physical and mental examination. The examination results shall be kept confidential unless otherwise ordered by the Family Court. Whenever the medical treatment is required, steps shall be immediately undertaken to provide the same;
(j)
(k) Ensure that should detention of the child in conflict with the law be necessary, the child shall be secured in quarters separate from that of the opposite sex and adult offenders; (l) Record the following in the initial investigation: (1) Whether handcuffs or other instruments of restraint were used, and if so, the reason for such; (2) That the parents or guardian of a child, the DSWD, and the PAO have been informed of the apprehension and the details thereof; and
330
Secs. 22-23
(3) The exhaustion of measures to determine the age of a child and the precise details of the physical and medical examination or the failure to submit a child to such examination; and (m) Ensure that all statements signed by the child during investigation shall be witnessed by the childs parents or guardian, social worker, or legal counsel in attendance who shall affix his/her signature to the said statement. A child in conflict with the law shall only be searched by a law enforcement officer of the same gender and shall not be locked up in a detention cell. SEC. 22. Duties During Initial Investigation. The law enforcement officer shall, in his/her investigation, determine where the case involving the child in conflict with the law should be referred. The taking of the statement of the child shall be conducted in the presence of the following: (1) childs counsel of choice or in the absence thereof, a lawyer from the Public Attorneys Office; (2) the childs parents, guardian, or nearest relative, as the case may be; and (3) the local social welfare and development officer. In the absence of the childs parents, guardian, or nearest relative, and the local social welfare and development officer, the investigation shall be conducted in the presence of a representative of an NGO, religious group, or member of the BCPC. After the initial investigation, the local social worker conducting the same may do either of the following: (a) Proceed in accordance with Section 20 if the child is fifteen (15) years or below or above fifteen (15) but below eighteen (18) years old, who acted without discernment; and (b) If the child is above fifteen (15) years old but below eighteen (18) and who acted with discernment, proceed to diversion under the following chapter.
CHAPTER 2 DIVERSION
SEC. 23. System of Diversion. Children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the conditions herein provided:
Secs. 24-26
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(a) Where the imposable penalty for the crime committee is not more than six (6) years imprisonment, the law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other members of the LCPC shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and his/her family shall be present in these activities. (b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the local social welfare and development officer shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC. (c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. SEC. 24. Stages Where Diversion May be Conducted. Diversion may be conducted at the Katarungang Pambarangay, the police investigation or the inquest or preliminary investigation stage and at all levels and phases of the proceedings including judicial level. SEC. 25. Conferencing, Mediation and Conciliation. A child in conflict with law may undergo conferencing, mediation or conciliation outside the criminal justice system or prior to his entry into said system. A contract of diversion may be entered into during such conferencing, mediation or conciliation proceedings. SEC. 26. Contract of Diversion. If during the conferencing, mediation or conciliation, the child voluntarily admits the commission of the act, a diversion program shall be developed when appropriate and desirable as determined under Section 30. Such admission shall not be used against the child in any subsequent judicial, quasi-judicial or administrative proceedings. The diversion program shall be effective and binding if accepted by the parties concerned. The acceptance shall be in writing and signed by the parties concerned and the appropriate authorities. The local social welfare and development
332
Secs. 27-29
officer shall supervise the implementation of the diversion program. The diversion proceedings shall be completed within forty-five (45) days. The period of prescription of the offense shall be suspended until the completion of the diversion proceedings but not to exceed forty-five (45) days. The child shall present himself/herself to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program. Failure to comply with the terms and conditions of the contract of diversion, as certified by the local social welfare and development officer, shall give the offended party the option to institute the appropriate legal action. The period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not exceeding a period of two (2) years. SEC. 27. Duty of the Punong Barangay When There is No Diversion. If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Punong Barangay handling the case shall, within three (3) days from determination of the absence of jurisdiction over the case or termination of the diversion proceedings, as the case may be, forward the records of the case of the child to the law enforcement officer, prosecutor or the appropriate court, as the case may be. Upon the issuance of the corresponding document, certifying to the fact that no agreement has been reached by the parties, the case shall be filed according to the regular process. SEC. 28. Duty of the Law Enforcement Officer When There is No Diversion. If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Women and Children Protection Desk of the PNP, or other law enforcement officer handling the case of the child under custody, to the prosecutor or judge concerned for the conduct of inquest and/or preliminary investigation to determine whether or not the child should remain under custody and correspondingly charged in court. The document transmitting said records shall display the word CHILD in bold letters. SEC. 29. Factors in Determining Diversion Program. In determining whether diversion is appropriate and desirable, the following factors shall be taken into consideration:
Secs. 30-31
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(a) The nature and circumstances of the offense charged; (b) The frequency and the severity of the act; (c) The circumstances of the child (e.g., age, maturity, intelligence, etc.); (d) The influence of the family and environment on the growth of the child; (e) The reparation of injury to the victim; (f) The weight of the evidence against the child; (g) The safety of the community; and (h) The best interest of the child. SEC. 30. Formulation of the Diversion Program. In formulating a diversion program, the individual characteristics and the peculiar circumstances of the child in conflict with the law shall be used to formulate an individualized treatment. The following factors shall be considered in formulating a diversion program for the child: (a) The childs feelings of remorse for the offense he/she committed; (b) The parents or legal guardians ability to guide and supervise the child; (c) The victims view about the propriety of the measures to be imposed; and (d) The availability of community-based programs for rehabilitation and reintegration of the child. SEC. 31. Kinds of Diversion Programs. The diversion program shall include adequate socio-cultural and psychological responses and services for the child. At the different stages where diversion may be resorted to, the following diversion programs may be agreed upon, such as, but not limited to: (a) At the level of the Punong Barangay: (1) Restitution of property; (2) Reparation of the damage caused; (3) Indemnification for consequential damages;
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Sec. 32
(4) Written or oral apology; (5) Care, guidance and supervision orders; (6) Counseling for the child in conflict with the law and the childs family; (7) Attendance in trainings, seminars and lectures on: (i) anger management skills; (ii) problem solving and/or conflict resolution skills; (iii) values formation; and (iv) other skills which will aid the child in dealing with situations which can lead to repetition of the offense; (8) Participation in available community-based programs, including community service; or (9) Participation in education, vocation and life skills programs. (b) At the level of the law enforcement officer and the prosecutor: (1) Diversion programs specified under paragraphs (a)(1) to (a)(9) herein; and (2) Confiscation and forfeiture of the proceeds or instruments of the crime; (c) At the level of the appropriate court: (1) Diversion programs specified under paragraphs (a) and (b) above; (2) Written or oral reprimand or citation; (3) Fine; (4) Payment of the cost of the proceedings; or (5) Institutional care and custody.
CHAPTER 3 PROSECUTION
SEC. 32. Duty of the Prosecutors Office. There shall be a specially trained prosecutor to conduct inquest, preliminary investigation
Secs. 33-36
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and prosecution of cases involving a child in conflict with the law. If there is an allegation of torture or ill-treatment of a child in conflict with the law during arrest or detention, it shall be the duty of the prosecutor to investigate the same. SEC. 33. Preliminary Investigation and Filing of Information. The prosecutor shall conduct a preliminary investigation in the following instances: (a) when the child in conflict with the law does not qualify for diversion: (b) when the child, his/her parents or guardian does not agree to diversion as specified in Sections 27 and 28; and (c) when considering the assessment and recommendation of the social worker, the prosecutor determines that diversion is not appropriate for the child in conflict with the law. Upon serving the subpoena and the affidavit of complaint, the prosecutor shall notify the Public Attorneys Office of such service, as well as the personal information, and place of detention of the child in conflict with the law. Upon determination of probable cause by the prosecutor, the information against the child shall be filed before the Family Court within forty-five (45) days from the start of the preliminary investigation.
CHAPTER 4 COURT PROCEEDINGS
SEC. 34. Bail. For purposes of recommending the amount of bail, the privileged mitigating circumstance of minority shall be considered. SEC. 35. Release on Recognizance. Where a child is detained, the court shall order: (a) the release of the minor on recognizance to his/her parents and other suitable person; (b) the release of the child in conflict with the law on bail; or (c) the transfer of the minor to a youth detention home/youth rehabilitation center.
The court shall not order the detention of a child in a jail pending trial or hearing of his/her case. SEC. 36. Detention of the Child Pending Trial. Children detained pending trial may be released on bail or recognizance as provided
336
Secs. 37-39
for under Sections 34 and 35 under this Act. In all other cases and whenever possible, detention pending trial may be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home. Institutionalization or detention of the child pending trial shall be used only as a measure of last resort and for the shortest possible period of time. Whenever detention is necessary, a child will always be detained in youth detention homes established by local governments, pursuant to Section 8 of the Family Courts Act, in the city or municipality where the child resides. In the absence of a youth detention home, the child in conflict with the law may be committed to the care of the DSWD or a local rehabilitation center recognized by the government in the province, city or municipality within the jurisdiction of the court. The center or agency concerned shall be responsible for the childs appearance in court whenever required. SEC. 37. Diversion Measures. Where the maximum penalty imposed by law for the offense with which the child in conflict with the law is charged is imprisonment of not more than twelve (12) years, regardless of the fine or fine alone regardless of the amount, and before arraignment of the child in conflict with the law, the court shall determine whether or not diversion is appropriate. SEC. 38. Automatic Suspension of Sentence. Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various chcumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. SEC. 39. Discharge of the Child in Conflict with the Law. Upon the recommendation of the social worker who has custody of the child,
Secs. 40-43
337
the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. SEC. 40. Return of the Child in Conflict with the Law to Court. If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment. If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. SEC. 41. Credit in Service of Sentence. The child in conflict with the law shall be credited in the services of his/her sentence with the full time spent in actual commitment and detention under this Act. SEC. 42. Probation as an Alternative to Imprisonment. The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into account the best interest of the child. For this purpose, Section 4 of Presidential Decree No. 968, otherwise known as the Probation Law of 1976, is hereby amended accordingly.
CHAPTER 5 CONFIDENTIALITY OF RECORDS AND PROCEEDINGS
SEC. 43. Confidentiality of Records and Proceedings. All records and proceedings involving children in conflict with the law from initial contact until final disposition of the case shall be consid-
338
Secs. 44-46
ered privileged and confidential. The public shall be excluded during the proceedings and the records shall not be disclosed directly or indirectly to anyone by any of the parties or the participants in the proceedings for any purpose whatsoever, except to determine if the child in conflict with the law may have his/hes sentence suspended or if he/she may be granted probation under the Probation Law, or to enforce the civil liability imposed in the criminal action. The component authorities shall undertake all measures to protect this confidentiality of proceedings, including non-disclosure of records to the media, maintaining a separate police blotter for cases involving children in conflict with the law and adopting a system of coding to conceal material information which will lead to the childs identity. Records of a child in conflict with the law shall not be used in subsequent proceedings for cases involving the same offender as an adult, except when beneficial for the offender and upon his/her written consent. A person who has been in conflict with the law as a child shall not be held under any provision of law, to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him/her for any purpose.
TITLE VI REHABILITATION AND REINTEGRATION
SEC. 44. Objective of Rehabilitation and Reintegration. The objective of rehabilitation and reintegration of children in conflict with the law is to provide them with interventions, approaches and strategies that will enable them to improve their social functioning with the end goal of reintegration to their families and as productive members of their communities. SEC. 45. Court Order Required. No child shall be received in any rehabilitation or training facility without a valid order issued by the court after a hearing for the purpose. The details of this order shall be immediately entered in a register exclusively for children in conflict with the law. No child shall be admitted in any facility where there is no such register. SEC. 46. Separate Facilities from Adults. In all rehabilitation or training facilities, it shall be mandatory that children shall be
Secs. 47-50
339
separated from adults unless they are members of the same family. Under no other circumstance shall a child in conflict with the law be placed in the same confinement as adults. The rehabilitation, training or confinement area of children in conflict with the law shall provide a home environment where children in conflict with the law can be provided with quality counseling and treatment. SEC. 47. Female Children. Female children in conflict with the law placed in an institution shall be given special attention as to their personal needs and problems. They shall be handled by female doctors, correction officers and social workers, and shall be accommodated separately from male children in conflict with the law. SEC. 48. Gender-Sensitivity Training. No personnel of rehabilitation and training facilities shall handle children in conflict with the law without having undergone gender sensitivity training. SEC. 49. Establishment of Youth Detention Homes. The LGUs shall set aside an amount to build youth detention homes as mandated by the Family Courts Act. Youth detention homes may also be established by private and NGOs licensed and accredited by the DSWD, in consultation with the JJWC. SEC. 50. Care and Maintenance of the Child in Conflict with the Law. The expenses for the care and maintenance of a child in conflict with the law under institutional care shall be borne by his/her parents or those persons liable to support him/her: Provided, That in case his/her parents or those persons liable to support him/her cannot pay all or part of said expenses, the municipality where the offense was committed shall pay one-third (1/3) of said expenses or part thereof; the province to which the municipality belongs shall pay one-third (1/3) and the remaining one-third (1/3) shall be borne by the national government. Chartered cities shall pay two-thirds (2/3) of said expenses; and in case a chartered city cannot pay said expenses, part of the internal revenue allotments applicable to the unpaid portion shall be withheld and applied to the settlement of said obligations: Provided, further, That in the event that the child in conflict with the law is not a resident of the municipality/city where the offense was committed, the court, upon its determination, may require the city/municipality where the child in conflict with the law resides to shoulder the cost.
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Secs. 51-52
All city and provincial governments must exert effort for the immediate establishment of local detention homes for children in conflict with the law. SEC. 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD. SEC. 52. Rehabilitation of Children in Conflict with the Law. Children in conflict with the law, whose sentences are suspended may, upon order of the court, undergo any or a combination of disposition measures best suited to the rehabilitation and welfare of the child as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. If the community-based rehabilitation is availed of by a child in conflict with the law, he/she shall be released to parents, guardians, relatives or any other responsible person in the community. Under the supervision and guidance of the local social welfare and development officer, and in coordination with his/her parents/guardian, the child in conflict with the law shall participate in community-based programs, which shall include, but not limited to: (1) Competency and life skills development; (2) Socio-cultural and recreational activities; (3) Community volunteer projects; (4) Leadership training; (5) Social services; (6) Homelife services; (7) Health services; . (8) Spiritual enrichment; and (9) Community and family welfare services.
In accordance therewith, the family of the child in conflict with the law shall endeavor to actively participate in the community-based rehabilitation.
Secs. 53-55
341
Based on the progress of the youth in the community, a final report will be forwarded by the local social welfare and development officer to the court for final disposition of the case. If the community-based programs are provided as diversion measures under Chapter II, Title V, the programs enumerated above shall be made available to the child in conflict with the law. SEC. 53. Youth Rehabilitation Center. The youth rehabilitation center shall provide 24-hour group care, treatment and rehabilitation services under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end view of reintegrating them in their families and communities as socially functioning individuals. A quarterly report shall be submitted by the center to the proper court on the progress of the children in conflict with the law. Based on the progress of the youth in the center, a final report will be forwarded to the court for final disposition of the case. The DSWD shall establish youth rehabilitation centers in each region of the country. SEC. 54. Objectives of Community-Based Programs. The objectives of community-based programs are as follows: (a) Prevent disruption in the education or means of livelihood of the child in conflict with the law in case he/she is studying, working or attending vocational learning institutions; (b) Prevent separation of the child in conflict with the law from his/her parents/guardians to maintain the support system fostered by their relationship and to create greater awareness of their mutual and reciprocal responsibilities; (c) Facilitate the rehabilitation and mainstreaming of the child in conflict with the law and encourage community support and involvement; and
(d) Minimize the stigma that attaches to the child in conflict with the law by preventing jail detention. SEC. 55. Criteria of Community-Based Programs. Every LGU shall establish community-based programs that will focus on the rehabilitation and reintegration of the child. All programs shall meet the criteria to be established by the JJWC which shall take into account the purpose of the program, the need for the consent of the child and his/her parents or legal guardians, and the participation of the child-centered agencies whether public or private.
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Secs. 56-60
SEC. 56. After-Care Support Services for Children in Conflict with the Law. Children in conflict with the law whose cases have been dismissed by the proper court because of good behavior as per recommendation of the DSWD social worker and/or any accredited NGO youth rehabilitation center shall be provided after-care services by the local social welfare and development officer for a period of at least six (6) months. The service includes counseling and other community-based services designed to facilitate social reintegration, prevent re-offending and make the children productive members of the community.
TITLE VII GENERAL PROVISIONS CHAPTER 1 EXEMPTING PROVISIONS
SEC. 57. Status Offenees. Any conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child. SEC. 58. Offenses Not Applicable to Children. Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of vagrancy and prostitution under Section 202 of the Revised Penal Code, of mendicancy under Presidential Decree No. 1563, and sniffing of rugby under Presidential Decree No. 1619, such prosecution being inconsistent with the United Nations Convention on the Rights of the Child: Provided, That said persons shall undergo appropriate counseling and treatment program. SEC. 59. Exemption from the Application of Death Penalty. The provisions of the Revised Penal Code, as amended, Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and other special laws notwithstanding, no death penalty shall be imposed upon children in conflict with the law.
CHAPTER 2 PROHIBITED ACTS
SEC. 60. Prohibition Against Labeling and Shaming. In the conduct of the proceedings beginning from the initial contact with the child, the competent authorities must refrain from branding or
Secs. 61-62
343
labeling children as young criminals, juvenile delinquents, prostitutes or attaching to them in any manner any other derogatory names. Likewise, no discriminatory remarks and practices shall be allowed particularly with respect to the childs class or ethnic origin. SEC. 61. Other Prohibited Acts. The following and any other similar acts shall be considered prejudicial and detrimental to the psychological, emotional, social, spiritual, moral and physical health and well-being of the child in conflict with the law and therefore, prohibited: (a) Employment of threats of whatever kind and nature; (b) Employment of abusive, coercive and punitive measures such as cursing, beating, stripping, and solitary confinement; (c) Employment of degrading, inhuman end cruel forms of punishment such as shaving the heads, pouring irritating, corrosive or harmful substances over the body of the child in conflict with the law, or forcing him/her to walk around the community wearing signs which embarrass, humiliate, and degrade his/her personality and dignity; and (d) Compelling the child to perform involuntary servitude in any and all forms under any and all instances.
CHAPTER 3 PENAL PROVISION
SEC. 62. Violation of the Provisions of this Act or Rules or Regulations in General. Any person who violates any provision of this Act or any rule or regulation promulgated in accordance thereof shall, upon conviction for each act or omission, be punished by a fine of not less than Twenty thousand pesos (P20,000.00) but not more than Fifty thousand pesos (P50,000.00) or suffer imprisonment of not less than eight (8) years but not more than ten (10) years, or both such fine and imprisonment at the discretion of the court, unless a higher penalty is provided for in the Revised Penal Code or special laws. If the offender is a public officer or employee, he/she shall, in addition to such fine and/or imprisonment, be held administratively liable and shall suffer the penalty of perpetual absolute disqualification.
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Secs. 63-66
CHAPTER 4 APPROPRIATION PROVISION
SEC. 63. Appropriations. The amount necessary to carry out the initial implementation of this Act shall be charged to the Office of the President. Thereafter, such sums as may be necessary for the continued implementation of this Act shall be included in the succeeding General Appropriations Act. An initial amount of Fifty million pesos (P50,000,000.00) for the purpose of setting up the JJWC shall be taken from the proceeds of the Philippine Charity Sweepstakes Office.
TITLE VIII TRANSITORY PROVISIONS
SEC. 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. Upon effectivity of this Act, cases of children fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer. Such officer, upon thorough assessment of the child, shall determine whether to release the child to the custody of his/her parents, or refer the child to prevention programs as provided under this Act. Those with suspended sentences and undergoing rehabilitation at the youth rehabilitation center shall likewise be released, unless it is contrary to the best interest of the child. SEC. 65. Children Detained Pending Trial. If the child is detained pending trial, the Family Court shall also determine whether or not continued detention is necessary and, if not, determine appropriate alternatives for detention. If detention is necessary and he/she is detained with adults, the court shall immediately order the transfer of the child to a youth detention home. SEC. 66. Inventory of Locked-up and Detained Children in Conflict with the Law. The PNP, the BJMP and the BUCOR are hereby directed to submit to the JJWC, within ninety (90) days from the effectivity of this Act, an inventory of all children in conflict with the law under their custody.
Secs. 67-72
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SEC. 67. Children Who Reach the Age of Eighteen (18) Years Pending Diversion and Court Proceedings. If a child reaches the age of eighteen (18) years pending diversion and court proceedings, the appropriate diversion authority in consultation with the local social welfare and development officer or the Family Court in consultation with the Social Services and Counseling Division (SSCD) of the Supreme Court, as the case may be, shall determine the appropriate disposition. In case the appropriate court executes the judgment of conviction, and unless the child in conflict the law has already availed of probation under Presidential Decree No. 603 or other similar laws, the child may apply for probation if qualified under the provisions of the Probation Law. SEC. 68. Children Who Have Been Convicted and are Serving Sentence. Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. They shall be entitled to appropriate dispositions provided under this Act and their sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified under this Act or other applicable law.
TITLE IX FINAL PROVISIONS
SEC. 69. Rule Making Power. The JJWC shall issue the IRRs for the implementation of the provisions of this act within ninety (90) days from the effectivity thereof. SEC. 70. Separability Clause. If, for any reason, any section or provision of this Act is declared unconstitutional or invalid by the Supreme Court, the other sections or provisions hereof not affected by such declaration shall remain in force and effect. SEC. 71. Repealing Clause. All existing laws, orders, decrees, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. SEC. 72. Effectivity. This Act shall take effect after fifteen (15) days from its publication in at least two (2) national newspapers of general circulation.
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JUVENILE JUSTICE AND WELFARE COUNCIL

Department of Justice DOJ Building, Padre Faura St., Ermita, Manila
COUNCIL RESOLUTION NO. 4

Series of 2006
SUBJECT: RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9344, OR THE JUVENILE JUSTICE AND WELFARE ACT OF 2006 The Juvenile Justice and Welfare Council, pursuant to Section 69 of Republic Act No. 9344, An Act Establishing A Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile Justice and Welfare Council Under The Department of Justice, Appropriating Funds Therefor And For Other Purposes (the Act), issues the following implementing rules and regulations:
PART I OVERALL PROVISIONS
RULE 1. TITLE AND PURPOSE These Rules shall be known and cited as the Rules and Regulations Implementing Republic Act No. 9344 (the Rules). These Rules are promulgated to prescribe the procedures and guidelines for the implementation of the Act. RULE 2. DECLARATION OF STATE POLICY The following State policies shall be observed at all times: (a) The State recognizes the vital role of children and youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.
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(b) The State shall protect the best interests of the child through measures that will ensure the observance of international standards of child protection, especially those to which the Philippines is a party. Proceedings before any authority shall be conducted in the best interest of the child and in a manner which allows the child to participate and to express himself/herself freely. The participation of children in the program and policy formulation and implementation related to juvenile justice and welfare shall be ensured by the concerned government agency. (c) The State likewise recognizes the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty and exploitation, and other conditions prejudicial to their development. (d) Pursuant to Article 40 of the United Nations Convention on the Rights of the Child, the State recognizes the right of every child alleged as, accused of, adjudged, or recognized as, having infringed the penal law to be treated in a manner consistent with the promotion of the childs sense of dignity and worth, taking into account the childs age and desirability of promoting his/her reintegration. Whenever appropriate and desirable, the State shall adopt measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. It shall ensure that children are dealt with in a manner appropriate to their well-being by providing for, among others, a variety of disposition measures such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programs and other alternatives to institutional care. (e) The administration of the juvenile justice and welfare system shall take into consideration the cultural and religious perspectives of the Filipino people, particularly the indigenous peoples and the Muslims, consistent with the protection of the rights of children belonging to these communities. (f) The State shall apply the principles of restorative justice in all its laws, policies and programs applicable to children in conflict with the law.
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RULE 3. CONSTRUCTION In case of doubt, the interpretation of any of the provisions of the Rules shall be construed liberally in favor of the child in conflict with the law, i.e., consistent with the best interest of the child, the declared state policy, the rights of the child in conflict with the law, and the principle of restorative justice. RULE 4. DEFINITION OF TERMS As used in these Rules, the term/s: (a) Bail refers to the security given for the release of the person in custody of the law, furnished by him/her or a bondsman, to guarantee his/her appearance before any court. (b) Best interest of the child refers to the totality of the circumstances and conditions most congenial to the survival, protection and feelings of security of the child and most encouraging to the childs physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. (c) (d) Child refers to a person under the age of eighteen (18) years. Children at risk refers to children who are vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances, such as, but not limited to, the following: (1) being abused by any person through sexual, physical, psychological, mental, economic or any other means and the parents or guardian refuse, are unwilling, or unable to provide protection for the child; (2) being exploited including sexually or economically; (3) being abandoned or neglected, and after diligent search and inquiry the parent or guardian cannot be found; (4) coming from a dysfunctional or broken family or without a parent or guardian; (5) being out of school;
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(6) being a street child; (7) being a member of a gang; (8) living in a community with a high level of criminality or drug abuse; and (9) living in situations of armed conflict. (e) Child in conflict with the law refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (f) Community-based programs refers to the programs provided in a community setting developed for purposes of intervention and diversion, as well as rehabilitation of the child in conflict with the law, for reintegration into his/her family and/or community.
(g) Court refers to a family court or, in places where there are no family courts, any regional trial court. (h) Deprivation of liberty refers to any form of detention or imprisonment, or to the placement of a child in conflict with the law in a public or private custodial setting, from which the child in conflict with the law is not permitted to leave at will by order of any judicial or administrative authority. (i) Diversion refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. Diversion Program refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings.
(j)
(k) Initial contact with the child refers to the apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that
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do not require preliminary investigation or where there is no necessity to place the child alleged to be in conflict with the law under immediate custody. (l) Intervention refers to a series of activities designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program, which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being.
(m) Juvenile justice and welfare system refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, reintegration and aftercare to ensure their normal growth and development. (n) Law enforcement officer refer to the person in authority or his/her agent as defined in Article 152 of the Revised Penal Code, including a barangay tanod. (o) Offense refers to any act or omission whether punishable under special laws or the Revised Penal Code, as amended. It includes violations of traffic laws, rules and regulations, and ordinances of local government units. (p) Recognizance refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court of the child in conflict with the law, when required. (q) Status Offenses refers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts. These shall include curfew violations, truancy, parental disobedience and the like. (r) Victimless Crimes refers to offenses where there is no private offended party.
(s) Youth Detention Home refers to a 24-hour child-caring institution managed by accredited LGUs and licensed and/or accredited NGOs providing short-term residential care for children in conflict with the law who are awaiting court disposition of their cases or transfer to other agen-
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cies or jurisdiction; also referred in these Rules as Youth Home. (t) Youth Rehabilitation Center refers to a 24-hour residential care facility that provides children in conflict with the law with care, treatment and rehabilitation services under the guidance of trained staff where children in conflict with the law on suspended sentence, or residents, are cared for under a structured therapeutic environment with the end view of reintegrating them in their families and communities as socially functioning individuals; also referred in these Rules as Youth Center.
RULE 5. RIGHTS OF THE CHILD IN CONFLICT WITH THE LAW Every child in conflict with the law shall have the following rights, including but not limited to: (a) The right to be treated with humanity and respect for the inherent dignity of the person, and in a manner which takes into account the needs of a person of his/her age; (b) The right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; (c) The right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release; (d) The right not to be unlawfully or arbitrarily deprived of his/her liberty; That detention or imprisonment being a disposition of last resort, shall be for the shortest appropriate period of time; (e) The right to be separated from adult offenders at all times. In particular, the child shall: (1) Not be detained together with adult offenders. (2) Be conveyed separately to or from the court. (3) Await hearing of his/her own case in a separate holding area. (f) The right to maintain contact with his/her family through correspondence and visits save in exceptional circumstances;
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(g) The right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action; (h) The right to bail and recognizance, in appropriate cases; (i) (j) The right to testify as a witness in his/her own behalf under the rule on examination of a child witness; The right to have his/her privacy respected fully at all stages of the proceedings;
(k) The right to diversion if he/she is qualified and voluntarily avails of the same; (l) The right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative justice;
(m) The right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty; (n) In criminal prosecutions, the rights: (1) Not to be held to answer for a criminal offense without due process of law; (2) To be presumed innocent until the contrary is proved beyond reasonable doubt; (3) To be heard by him/herself and counsel; (4) To be informed promptly and directly of the nature and cause of the accusation against him/her, and if appropriate, through his/her parents or legal guardian; (5) To be present at every stage of the proceedings, from arraignment to promulgation of judgment; (6) To have legal and other appropriate assistance in the preparation and presentation of his/her defense;
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(7) To testify as a witness in his/her own behalf and subject to cross-examination only on matters covered by direct examination, provided that the Rule on the Examination of a Child Witness shall be observed whenever convenient and practicable; (8) Not to be compelled to be a witness against him/ herself and his/her silence shall not in any manner prejudice him/her; (9) To confront and cross-examine the witnesses against him/her; (10) To have compulsory process to secure the attendance of witnesses and production of other evidence in his/ her behalf; (11) To have a speedy, impartial and public trial, with legal or other appropriate assistance and preferably in the presence of his/her parents or legal guardian, unless such presence is considered not to be in the best interests of the juvenile taking into account his/her age and other peculiar cirumstances; (12) To appeal in all cases allowed and in the manner prescribed by law; and (13) To be accorded all the rights under the Rule on Examination of a Child Witness. (o) In general, the right to automatic suspension of sentence; (p) The right to probation as an alternative to imprisonment, if qualified under the probation law; (q) The right to be free from liability for perjury, concealment or misrepresentation; and (r) Other rights as provided for under existing laws, rules and regulations.
These rights of children in conflict with the law shall serve as guiding principles in the administration of the Juvenile Justice and Welfare System. RULE 6. PRINCIPLE OF RESTORATIVE JUSTICE Restorative justice refers to a principle that requires a process of resolving conflicts with the maximum involvement of the
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victim, the offender and the community. It seeks to achieve the following: (a) Reparation for the victim; (b) Reconciliation of the offender, the offended and the community; (c) Reassurance to the offender that he/she can be reintegrated into society; and
(d) Enhancement of public safety by activating the offender, the victim and the community in prevention strategies. RULE 7. CHILDREN OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES (ICCs/IPs) Consistent with Section 15 of Republic Act No. 8371 or The Indigenous Peoples Rights Act of 1997, ICCs/IPs shall, in dealing with children in conflict with the law, have the right to use their own commonly accepted justice systems, conflict resolution institutions, peace building processes or mechanisms and other customary laws and practices within their respective communities and as may be compatible with the national legal system and with internationally recognized human rights.
PART II JUVENILE JUSTICE AND WELFARE COUNCIL
RULE 8. MANDATE The Juvenile Justice and Welfare Council (JJWC), created under Section 8 of the Act, shall ensure the effective implementation of the Act, including these Rules. In fulfillment of this mandate, the JJWC shall ensure the effective coordination among the following agencies, the duties and responsibilities of which are found in Part XVII of these Rules: (a) Council for the Welfare of Children; (b) Department of Education; (c) Department of the Interior and Local Government; (d) Public Attorneys Office; (e) Bureau of Corrections; (f) Parole and Probation Administration;
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(g) National Bureau of Investigation; (h) Philippine National Police; (i) (j) (l) Bureau of Jail Management and Penology; Commission on Human Rights; National Youth Commission; and
(k) Technical Education and Skills Development Authority; (m) Other institutions focused on juvenile justice and intervention programs, as may be determined by the JJWC. RULE 9. COMPOSITION As provided in Section 8 of the Act, the JJWC shall be composed of representatives of the following departments or agencies: (a) Department of Justice (DOJ); (b) Department of Social Welfare and Development (DSWD); (c) Department of Education (DepEd); (d) Department of the Interior and Local Government (DILG); (e) Council for the Welfare of Children (CWC); (f) Commission on Human Rights (CHR); (g) National Youth Commission (NYC); and (h) Two (2) representatives from non-government organizations (NGOs), one to be designated by the Secretary of Justice and the other to be designated by the Secretary of Social Welfare and Development. RULE 10. ADMINISTRATION AND ORGANIZATION OF THE JJWC Rule 10.a. Attachment and administrative supervision The JJWC is attached to the DOJ and placed under its administrative supervision. As such, the DOJ has the authority to: (1) Generally oversee the operation of JJWC and ensure that it is managed effectively, efficiently and economically; (2) Manage the secretariat of the JJWC;
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(3) Require the JJWC to submit periodic reports, such as those reflecting the progress of its programs and projects; (4) Cause the conduct of management audit, performance evaluation and inspection of the JJWC to determine its compliance with policies, standards and guidelines of the Department; (5) Take such action as may be necessary for the performance of official functions, including rectifications, abuses and other forms of misadministration by its personnel; (6) Review and pass upon the budget of the JJWC; and (7) Call all regular and special meetings of the JJWC. Rule 10.b. Chairperson of the JJWC As provided by Section 8 of the Act, the JJWC shall be chaired by the DSWD through an Undersecretary appointed by the Secretary of Social Welfare and Development. As the JJWC chair, the DSWD shall: (1) Preside over all regular and special meetings of the JJWC; (2) Closely monitor the programs of the JJWC; (3) Represent the JJWC in conferences, meetings and other programs; and (4) Sign communications for the JJWC. In the absence of the chairperson, the JJWC shall be chaired by the DOJ. Rule 10.c. Organizational structure and staffing pattern As provided in Section 8 of the Act, the Secretary of Justice and the Secretary of Social Welfare and Development shall determine the organizational structure and staffing pattern of the JJWC, which include the JJWC secretariat. The secretariat shall among other functions to be determined by the JJWC: (1) Prepare the periodic reports for the JJWC; (2) Prepare the budget of the JJWC; and (3) Invite resource persons in the meetings and programs of the JJWC.
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The Secretary of Justice shall appoint the officers and staff of the JJWC secretariat upon a favorable recommendation of the JJWC. Rule 10.d. Designation of representatives to the JJWC The concerned department or agency heads shall designate their representatives to the JJWC, whose ranks shall not be lower than director, except in the case of the NYC, whose representative must have the rank of at least commissioner. The heads of the concerned departments or agencies shall name a permanent and an alternate representative, respectively with ranks of at least Undersecretary and Director, who shall regularly attend meetings and programs of the JJWC. RULE 11. DUTIES AND FUNCTIONS OF THE JJWC Rule 11.a. Implementation of the Act The JJWC has the duty to oversee the implementation of the Act and all Rules issued in relation thereto. Pursuant to this duty, it shall: (1) Coordinate the implementation of the juvenile intervention programs and activities by national government agencies and other activities which may have an important bearing on the success of the entire national juvenile intervention program. All programs relating to juvenile justice and welfare shall be adopted in consultation with the JJWC. (2) Call the attention of the departments and agencies concerned to perform their respective duties and responsibilities under the Act and these Rules and assist them if necessary to ensure the effective implementation of the Act. (3) Mobilize resources and call upon government agencies as well as private organizations to provide resource assistance to support the implementation of the Act. The JJWC shall regularly conduct meetings and submit an annual report to the President on the implementation of the Act. The annual report shall include, among others: (1) Identification of the strengths and weaknesses in the implementation of the Act;
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(2) Appraisal of the performance of the government agencies in relation to their duties and responsibilities under the Act; and (3) Recommendations on how to improve the implementation of the Act and the administration of the juvenile justice and welfare system. The JJWC shall prescribe a common reporting form for all the agencies under Rule 8 to facilitate the preparation of the Annual Report. The JJWC shall also perform such other functions as may be necessary to implement the provisions of the Act. Rule 11.b. Advisory function The JJWC shall advise the President on all matters and policies relating to juvenile justice and welfare. It shall bring to the attention of the President the gaps in existing policies and recommend appropriate remedial legislation or other policy measures that address these gaps. Rule 11.c. Policy formulation and program development The JJWC shall periodically develop a Comprehensive National Juvenile Intervention Program, as provided in Rule 17 herein. It shall formulate and recommend policies and strategies in consultation with children for the prevention of juvenile delinquency and the administration of justice, as well as for the treatment and rehabilitation of the children in conflict with the law. The JJWC shall also set the criteria that LGUs must meet in establishing their respective community-based programs for the rehabilitation and reintegration of children in conflict with the law. Rule 11.d. Research and evaluation The JJWC shall collect relevant information and conduct continuing research support evaluations and studies on all matters relating to juvenile justice and welfare, such as, but not limited to the: (1) Performance and results achieved by juvenile intervention programs and by activities of the local government units and other government agencies;
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(2) Periodic trends, problems and causes of juvenile delinquency and crimes; and (3) Particular needs of children in conflict with the law in custody. A data banking system for all data needed in the evaluation and improvement of the administration of juvenile justice and welfare system shall be developed and maintained by the JJWC. The JJWC shall set up a mechanism to ensure that children are involved in research and policy development. The JJWC shall also receive and evaluate the assessments submitted by provincial and city governments on the implementation of the comprehensive juvenile intervention program as provided in Section 18 of the Act and Rule 18 herein. Rule 11.e. Inspection The JJWC, through duly designated persons and with the assistance of the agencies under Section 8 of the Act (Rule 9) shall conduct regular inspections in detention and rehabilitation facilities and to undertake spot inspections on their own initiative in order to check compliance with the standards provided in the Act and the Rules and to make the necessary recommendations to appropriate agencies. Rule 11.f. Assistance to agencies The JJWC shall, pursuant to Section 10 of the Act, assist the concerned government agencies in: (1) Reviewing and enhancing existing policies/regulations or in the formulation of new ones in line with the provisions of this Act and the Rules; and (2) Formulating their respective policies and procedures consistent with the standards set in the law and in modifying the same upon the completion of the national juvenile intervention program as provided in Rule 14. The JJWC shall also initiate and coordinate the conduct of trainings for the personnel of agencies involved in the administration of the juvenile justice and welfare system. The JJWC shall be informed by the DSWD in cases where licensed and accredited private and non-government organizations
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establish Youth Detention Homes as provided under Section 49 of the Act and Rule 76 herein. RULE 12. COORDINATION WITH THE COURT To ensure the realization of its mandate and the proper discharge of its duties and functions, the JJWC shall coordinate with the Office of the Court Administrator and the Philippine Judicial Academy by inviting resource persons from these offices during consultation meetings. RULE 13. NON-GOVERNMENT ORGANIZATIONS Rule 13.a. Designation of representatives Two (2) representatives from non-government organizations (NGOs) shall serve as members of the JJWC, one representative to be designated by the Secretary of Justice and the other to be designated by the Secretary of Social Welfare and Development. Rule 13.b. Qualifications An NGO, to be designated as a member of the JJWC, must be involved in child-related advocacy or work of at least two (2) years prior and up to the time of designation. The additional qualifications of the NGOs shall be respectively determined by the Secretaries of Justice and of Social Welfare and Development. Rule 13.c. Term Each NGO representative designated under Rule 13.a shall have a term of two (2) years. In the event a representative is not able to complete the prescribed term, the Secretary designating such representative shall designate another NGO to serve the unexpired portion of the term. An NGO representative, even one that is not able to complete the term of two years, cannot be appointed to the JJWC for two consecutive terms. RULE 14. POLICIES AND PROCEDURES ON JUVENILE JUSTICE All government agencies enumerated in Section 8 of the Act (Rule 8) shall, with the assistance of the JJWC and within one (1) year from the effectivity of this Act, draft policies and procedures consistent with the standards set in the Act.
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The policies and procedures of all government agencies shall promote a common and conscious understanding of issues concerning juvenile justice and welfare, be consistent and avoid duplicating or contradicting policies that result to confusion. As such, the following shall be observed in the drafting, formulation or development of such policies and procedures: (a) Policies and procedures on juvenile justice and welfare of all government agencies enumerated in Section 8 of the Act shall not only be consistent with the standards set in the law but also with the National Juvenile Intervention Program. Policies and procedures shall be modified accordingly in consultation with the JJWC upon the completion of the National Juvenile Intervention Program as provided under Rule 17 below and Section 9(d) of the Act. (b) Each government agency shall see to it that its policies and procedures are consistent with that of other government agencies. (c) If the standards set in the Act require the involvement of several government agencies enumerated in Section 8 of the Act, only a single policy and/or procedure pertaining to those standards shall be issued. The lead agency shall be identified by the JJWC.
(d) In the event that policies and procedures of a government agency not enumerated in Section 8 of the Act affect the juvenile justice and welfare system, the concerned government agency shall seek the assistance of the JJWC. The participation of children in the program and policy formulation and implementation relating to juvenile justice and welfare shall be ensured by each government agency.
PART III LOCAL COUNCILS FOR THE PROTECTION OF CHILDREN
RULE 15. LOCAL COUNCILS FOR THE PROTECTION OF CHILDREN Rule 15.a. Establishment All levels of local government shall have Local Councils for the Protection of Children (LCPCs) as provided in Section 15 of the Act. The LCPC in each level of local government unit (LGU) is:
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(1) Province Provincial Council for the Protection of Children (PCPC); (2) City City Council for the Protection of Children (CCPC); (3) Municipality Municipal Council for the Protection of Children (MCPC); and (4) Barangay Barangay Council for the Protection of Children (BCPC). In LGUs where LCPCs are not yet established, the concerned LGU shall immediately establish an LCPC upon the effectivity of the Act and ensure that it is performing its duties and responsibilities as provided in these Rules. Where they have been established, the LCPCs shall be strengthened by their respective LGUs. Rule 15.b. Funding for LCPCs Each barangay, municipality and city shall appropriate in its annual budget one percent (1%) of its annual internal revenue allotment (IRA) for the strengthening and implementation of the programs of the LCPC, as provided in Section 15 of the Act. The LGU concerned shall be responsible for the disbursement of the fund as provided by existing laws. Funds disbursed by LGUs on current programs of the LCPC shall be deemed as appropriate disbursement under Section 15 of the Act. However, the one percent (1%) IRA allocation under in this Rule is different from the budget disbursed by the LGUs for social services. Rule 15.c. Membership As provided in Section 15 of the Act, membership in the LCPC shall be chosen from among the responsible members of the community, including a representative from the youth sector, as well as representatives from government and private agencies concerned with the welfare of children. Pursuant to DILG Memorandum Circular No. 2002-121, the LCPC in each level of LGU shall be composed of: (1) PCPC
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Chairperson - Provincial Governor Members - Sangguniang Panlalawigan Member (Chairperson, Committee on Women and Family) DILG Provincial Director Provincial Social Welfare and Development Officer Provincial Labor and Employment Officer Division Superintendent of DepEd Provincial Planning & Development Officer Provincial Budget Officer Provincial Health Officer Provincial Nutrition Officer Provincial PNP Director Provincial Commander, AFP Provincial Treasurer President, League of Municipalities Provincial SK Federation President Child Representative At least three (3) representatives of NGOs
(2) CCPC and MCPC

Chairperson - City/Municipal Mayor Members - Sangguniang Panlungsod/Pambayan Member (Chairperson, Committee on Women and Family) DILG City/Municipal Field Officer City/Municipal Social Welfare and Develop ment Officer Division Superintendent/District Supervisor of DepEd Local Labor and Employment Officer City/Municipal Planning & Development Officer City/Municipal Budget Officer City/Municipal Health Officer City/Municipal Nutrition Officer City/Municipal PNP Director City/Municipal Treasurer City/Municipal LIGA ng mga Barangay President City/Municipal SK Federation President Parent Teachers Association (PTA) President Child Representative At least three (3) representatives of NGOs
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(3) BCPC
Chairperson - Members - Family) Punong Barangay Barangay Kagawad (Chairperson on Women and Barangay Nutrition Scholar Barangay Day Care Worker Barangay Health Nurse/Midwife Barangay Health Worker DepEd Principal/Teacher-in-charge Chief Tanod SK Chairperson Child Representative PTA President or his/her representative NGO Representative
Membership in the LCPC shall be subject to the review and amendment of the DILG through appropriate issuances.
Rule 15.d. Duties and responsibilities of the LCPC All LCPCs shall: (1) Serve as the primary agency to coordinate with and assist the LGU concerned for the adoption of the Comprehensive Juvenile Intervention Program as provided in Rule 18 below, and to oversee its proper implementation; (2) Coordinate with and assist the LGUs in calling on all sectors concerned, particularly the child-focused institutions, NGOs, peoples organizations, educational institutions and government agencies involved in delinquency prevention to participate in the planning process and implementation of juvenile intervention programs; (3) Coordinate with LGUs in the annual review and assessment of the comprehensive juvenile intervention programs; (4) Coordinate with and assist the SK in the formulation and implementation of juvenile intervention and diversion programs in the community; (5) Provide coordinative linkages with other agencies and institutions in the planning, monitoring and evaluation of juvenile intervention and diversion programs in the community;
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(6) Assist the Punong Barangay in conducting diversion proceedings in cases provided under Section 23(a) of the Act and Rule 43.b below; (7) Assist the Local Social Welfare and Development Officer (LSWDO) in the development of the appropriate diversion program as provided under Section 23(b) of the Act; (8) Institute together with schools, youth organizations and other concerned agencies the community-based programs on juvenile justice and welfare initiated by LGUs; (9) Conduct capability building programs to enhance knowledge and skills in handling childrens programs; (10) Establish and maintain a database on children in the local government. Specifically, for the purpose of this Act, the LCPCs shall maintain a database of children in conflict with the law, which shall include the children who undergo intervention, diversion and rehabilitation programs and after-care support services; (11) Document best practices on juvenile intervention and prevention; (12) Advocate and recommend local legislations promoting child survival, protection, participation and development, especially on the quality of television shows and media prints and coverage, which are detrimental to children, and with appropriate funding support; (13) Conduct an inventory of all NGOs serving children in conflict with the law and mobilize them as resources for the effective implementation of the Act; (14) Review existing policies of units providing services to children in conflict with the law, determine the barriers to access to these services, and take the necessary action to improve access to these services. In addition to its functions under Presidential Decree No. 603, or the The Child and Youth Welfare Code [P.D. 603] and Republic Act No. 8980, or the ECCD Act, each BCPC shall perform the following functions consistent with the objectives of the Act on juvenile intervention and delinquency prevention:
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(1) Encourage the proper performance of the duties of parents, and provide learning opportunities on the adequate rearing of children and on positive parent-child relationship; (2) Assist parents, whenever necessary in securing expert guidance counseling from the proper governmental or private welfare agency; (3) In addition, it shall hold classes and seminars on the proper rearing of children. It shall distribute to parents available literature and other information on child guidance. The Council shall assist parents, with behavioral problems whenever necessary, in securing expert guidance counseling from the proper governmental or private welfare agency; (4) Coordinate the activities of organizations devoted to the welfare of children in coordination with the Sangguniang Kabataan and secure their cooperation; (5) Protect and assist children at risk; and (6) Take steps to prevent juvenile delinquency and assist parents of children with behavioral problems so that they can get expert advise. Rule 15.e. Responsibility of BCPC members Members of the BCPC shall have the following additional responsibilities: (1) To take custody of the child in conflict with the law who is found to be fifteen (15) years of age or below if the parents, guardians or nearest relatives of the child cannot be located, or if they refuse to take custody as provided in Section 20 of the Act and Rule 31.b below. (2) To be present in the initial investigation of the child in conflict with the law in the absence of the childs parents, guardian, or nearest relative, and the LSWDO as provided in Section 22 of the Act and Rule 23.b below. The presence of the member of the BCPC, or in the alternative, the representative of an NGO or a faith-based group, may be required in the initial investigation to ensure that the rights of the child are protected during that stage.
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PART IV PROGRAMS FOR JUVENILE INTERVENTION AND DELINQUENCY PREVENTION
RULE 16. CONCEPT/PRINCIPLES IN INTERVENTION Intervention refers to a series of activities designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program, which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. All programs for juvenile intervention and delinquency prevention shall be formulated in consideration of the following: (a) Emphasis on intervention or prevention policies facilitating the successful socialization and integration of all children with the family, through the community, peer groups, schools, vocational training and the world of work, as well as through voluntary organizations; (b) Due respect should be given to the proper personal development of children, and they should be accepted as full and equal partners in socialization and integration processes. RULE 17. NATIONAL JUVENILE INTERVENTION PROGRAM Rule 17.a. Development; Term The JJWC shall, in accordance with Section 18 of the Act, develop a three (3) to five (5)-year Comprehensive National Juvenile Intervention Program (the National Intervention Program) embodying the detailed strategy to realize the objectives of the Act on juvenile intervention and delinquency prevention. The National Intervention Program shall serve as a guide to all government agencies, LGUs and NGOs in the formulation of their respective juvenile intervention programs and their policies and programs relating to juvenile justice and welfare. Particularly, the National Intervention Program shall serve as the basis for the: (1) Formulation or modification of policies and procedures of all government agencies involved in the Juvenile Justice and Welfare System; and
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(2) Comprehensive Juvenile Intervention Programs to be developed and instituted by the LGUs as provided in Rule 18. The National Intervention Program shall be developed by the JJWC, within six (6) months from the effectivity of the Act, with the participation of: (1) Government agencies concerned, including but not limited those enumerated in Rule 8; (2) Non-government organizations; (3) Child and youth organizations; and (4) The Leagues of provinces, cities, municipalities and barangays. Rule 17.b. Components of the program The National Intervention Program shall be formulated and designed to include, among others, the following: (a) In-depth analyses of the problem and inventories of programs, services, facilities and resources available; (b) Well-defined responsibilities for the government agencies, both member and coordinating, institutions and personnel as well as non-government agencies involved in intervention and prevention efforts; (c) Mechanisms for the appropriate coordination of intervention and prevention efforts between governmental and non-governmental agencies;
(d) Policies, programs and strategies based on prognostic studies to be continuously monitored and carefully evaluated in the course of implementation; (e) Methods for effectively reducing the opportunity for children to commit offenses; (f) Community involvement through a wide range of services and programs;
(g) Close interdisciplinary cooperation between the national government and the local governments, with the involvement of the private sector representative citizens of the community to be served, and concerned government agen-
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cies as well as the judiciary in taking concerted action to prevent commission of offenses by children; (h) Participation of children in intervention and prevention policies and processes, including recourse to community resources, youth self-help, and victim compensation and assistance programs; and (i) Specialized personnel at all levels (e.g., social workers, prosecutors) and their respective roles in the juvenile justice and welfare system.
RULE 18. COMPREHENSIVE JUVENILE INTERVENTION PROGRAM Rule 18.a. Development; term Each LGU shall formulate a Comprehensive Juvenile Intervention Program (Local Intervention Program) to be instituted from the barangay to the provincial level. Each Local Intervention Program shall cover a period of at least three (3) years. The LGUs, in coordination with the LCPCs, shall call on all sectors concerned, particularly the child-focused institutions, NGOs, peoples organizations, educational institutions and government agencies involved in delinquency prevention to participate in the planning process and implementation of the Local Intervention Programs. Existing programs of LGUs dealing with children shall be deemed part of LCPC program. Rule 18.b. Components Each Local Intervention Program shall be formulated and designed to include the components prescribed in Rule 17.b, when appropriate. All Local Intervention Programs shall be consistent with the National Intervention Program formulated and designed by the JJWC. Rule 18.c. Implementation The LCPC shall serve as the primary agency to coordinate with and assist the LGU concerned for the adoption of Local Intervention Program, and to oversee its proper implementation.
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As provided by Section 18 of the Act, the LGUs shall set aside an amount necessary to implement their respective juvenile intervention programs in their annual budget. Rule 18.d. Assessment The implementation of the Local Intervention Programs shall be reviewed and assessed annually by the LGUs in coordination with their respective LCPCs. Results of the assessment shall be submitted by the LGUs to the JJWC, through the DILG, not later than March 30 of every year. RULE 19. COMMUNITY-BASED PROGRAMS AS INTERVENTION Rule 19.a. Objectives of community-based programs as intervention As provided in Section 19 of the Act, the community-based programs for juvenile intervention and delinquency prevention shall respond to the special needs, problems, interests and concerns of children and offer appropriate counseling and guidance to them and their families. All community-based programs to be designed by LGUs shall consist of three levels: (1) Primary intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending. These shall include programs on advocacy, socio-economic service, health and nutrition, training and education. (2) Secondary intervention includes measures to assist children at risk, i.e., protective services for children; and (3) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other measures to prevent re-offending, i.e., diversion programs, rehabilitation, reintegration and after care services, which shall be further defined in Parts VII, VIII and XI of these Rules. These programs intend to minimize the commission of offenses by children who are potentially and actually in conflict with the law and their eventual apprehension by law enforcement officers.
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Rule 19.b. Formulation and implementation The community-based programs on juvenile intervention and delinquency prevention shall be instituted by the LGUs through the LCPCs, schools, youth organizations and other concerned agencies consistent with the Local Intervention Programs. The Sangguniang Kabataan, as prescribed by Section 17 of the Act, shall coordinate with the LCPC in the formulation and implementation of juvenile intervention programs in the community. LGUs, in coordination with the LCPCs, shall be responsible making an annual assessment and evaluation of the community-based programs for intervention in the comprehensive juvenile intervention programs. Results of the assessment shall be submitted by the provincial and city governments to the JJWC not later than March 30 of every year. Municipal governments shall submit their reports to the provincial government for consolidation. Rule 19.c. Programs and services for juvenile intervention In developing community-based programs for juvenile intervention and delinquency prevention, LGUs shall be guided by the following: (1) Services and programs that respond to the special needs, problems, interests and concerns of children and offer appropriate counseling and guidance to children and their families shall be developed, or strengthened where they exist. (2) A wide-range of community-based support measures for children, including but not limited to community development centers, recreational facilities and services that respond to the special problems of children at risk, shall be provided, or strengthened where they exist. (3) Special facilities shall be set up to provide adequate shelter for children who are no longer able to live at home or who do not have homes to live in. (4) A range of services and helping measures shall be provided to deal with the difficulties experienced by children in the transition to adulthood. Such services shall include special programs for young drug abusers which emphasize care, counseling, assistance and therapy-oriented interventions.
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(5) LGUs shall share resources with and support the programs of private and non-government organizations providing services for children. (6) Youth organizations shall be created or strengthened at the local level and given full participatory status in the management of community affairs. These organizations shall encourage the youth to organize collective and voluntary projects, particularly projects aimed at helping children in need of assistance. (7) The LGUs shall take special responsibility and provide necessary services for homeless or street children. Information about local facilities, accommodation, employment and other forms and sources of help shall be made readily available to children. (8) A wide range of recreational facilities and services of particular interest to children shall be established and made easily accessible to them. RULE 20. ROLE OF DIFFERENT SECTORS IN JUVENILE INTERVENTION AND PREVENTION Rule 20.a. Family As provided in Section 12 of the Act, the family shall be responsible for the primary nurturing and rearing of children, which are critical in delinquency prevention. As far as practicable and in accordance with the procedures of the Act, a child in conflict with the law shall be maintained in his/her family. Rule 20.b. Educational system By way of contributing to juvenile intervention and delinquency prevention, educational institutions shall, consistent with Section 13 of the Act: (1) Work together with families, community organizations and agencies in the prevention of juvenile delinquency and in the rehabilitation and reintegration of child in conflict with the law. (2) Provide adequate, necessary and individualized educational schemes for children manifesting difficult behavior and children in conflict with the law.
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(3) In cases where children in conflict with the law are taken into custody or detained in youth rehabilitation centers, provide the opportunity to continue learning under an alternative learning system with basic literacy program or non-formal education accreditation equivalency system. In addition to their academic and vocational training activities, educational institutions shall devote particular attention to the following: (1) Teaching of basic values and developing respect for the childs own cultural identity and patterns, for the social values of the country in which the child is living, for civilizations different from the childs own and for human rights and fundamental freedoms; (2) Promotion and development of the personality, talents and mental and physical abilities of children to their fullest potential; (3) Involvement of children as active and effective participants in, rather than mere objects of, the educational process; (4) Undertaking activities that foster a sense of identity with and of belonging to the school and the community; (5) Encouragement of young persons to understand and respect diverse views and opinions, as well as cultural and other differences; (6) Provision of information and guidance regarding vocational training, employment opportunities and career development; (7) Provision of positive emotional support to children and the avoidance of psychological maltreatment; (8) Prohibition of harsh disciplinary measures, particularly corporal punishment; (9) Seek to work together with parents, community organizations and agencies concerned with the activities of children; (10) Extend particular care and attention to children at risk. Specialized prevention programs and educational materials, curricula, approaches and tools should be developed and fully utilized;
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(11) Give special attention to comprehensive policies and strategies for the prevention of alcohol, drug and other substance abuse by children. Teachers and other professionals should be equipped and trained to prevent and deal with these problems. Information on the use and abuse of drugs, including alcohol, should be made available to the student body; (12) Serve as resource and referral centers for the provision of medical, counseling and other services to children, particularly those with special needs and suffering from abuse, neglect, victimization and exploitation; (13) Attempt to meet and promote the highest professional and educational standards with respect to curricula, teaching and learning methods and approaches, and the recruitment and training of qualified teachers; (14) Plan, develop and implement extracurricular activities of interest to children, in cooperation with community groups; (15) Give special assistance to children who find it difficult to comply with attendance rules, and to drop-outs; (16) Promote policies and rules that are fair and just. Rule 20.c. Mass media As provided in Section 14 of the Act, the mass media shall play an active role in the promotion of child rights, and delinquency prevention by relaying consistent messages through a balanced approach. Media practitioners shall, therefore, have the duty to maintain the highest critical and professional standards in reporting and covering cases of children in conflict with the law consistent with the Guidelines for Media Practitioners on the Reporting and Coverage of Cases Involving Children issued by the Special Committee for the Protection of Children. In all publicity concerning children, the best interest of the child should be the primordial and paramount concern. Any undue, inappropriate and sensationalized publicity of any case involving a child in conflict with the law is hereby declared a violation of the childs rights. The right of the child in conflict with the law to have his/her privacy shall be respected. Any material information obtained by media practitioners on the child in conflict with the law must not be
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used in violation of this right or in any manner that may lead to the childs identity. Media practitioners shall not disclose the identities of the relatives of the child to maintain confidentiality and privacy. The mass media shall also be encouraged: (1) To ensure that children have access to information and material from a diversity of national and international sources; (2) To portray the positive contribution of children to society; and (3) To disseminate information on the existence of services, facilities and opportunities for children in society.
PART V INITIAL CONTACT WITH THE CHILD
RULE 21. INITIAL CONTACT WITH THE CHILD Rule 21.a. What constitutes initial contact Initial contact refers to the apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no necessity to place the child alleged to be in conflict with the law under immediate custody. Rule 21.b. If initial contact by private citizens or non-law enforcement officers In the event a child in conflict with the law is apprehended or taken into custody by private citizens, the child shall be immediately referred to the appropriate law enforcement officer for the child to undergo the proper investigation as provided in the succeeding Rules. RULE 22. PROCEDURE FOR TAKING CHILD INTO CUSTODY From the moment the child is taken into custody, the law enforcement officer shall faithfully observe the following procedure as provided in Section 21 of the Act:
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(a) Properly identify him/herself and present proper identification to the child. (b) Immediately notify the childs parents/guardians, the local social welfare and development officer (LSWDO), and the Public Attorneys Office of the childs apprehension. The notification shall be made not later than eight (8) hours after apprehension. (c) Explain to the child in simple language and in a language or dialect that he/she can understand: (1) The reason for placing the child under custody; (2) The offense that he/she allegedly committed; and (3) His/her constitutional rights. (d) Immediately start the determination of the age of the child in accordance with the guidelines provided in Rule 30 below. (e) Take the child immediately to the proper medical and health officer for a thorough physical and mental examination. Whenever the medical treatment is required, steps shall be immediately undertaken to provide the same. (f) Turn over the custody of the child to the LSWDO or other accredited non-government organizations immediately but not later than eight (8) hours after apprehension. The turn over of custody shall be done within the same eight (8) hours referred in item (b) under this Rule. However, in cases where the child is found to be below the age of criminal responsibility as defined in Section 20 of the Act, the law enforcement officer shall immediately release the child to his/parents in accordance with Rule 31 below. The turnover of children below the age of criminal responsibility to parents notwithstanding, the law enforcement officer shall proceed with the initial investigation, where appropriate.
The above procedure must be conducted in strict observance of the prohibitions provided in Section 21 of the Act and in Rule 28 below while the law enforcement officer is in custody of the child. A child in conflict with the law shall only be searched by a law enforcement officer of the same gender as prescribed in Section 21 of the Act.
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RULE 23. INITIAL INVESTIGATION Rule 23.a. Nature and objective of the investigation The initial investigation is the stage after initial contact when the law enforcement officer takes the statement of the child in conflict with the law. The law enforcement officer shall, in the conduct of the initial investigation, determine where the case involving the child in conflict with the law should be referred. Rule 23.b. Who conducts; who are present As provided in Section 22 of the Act, the law enforcement officer, specifically from the Women and Children Protection Desk where present, shall take the statement of the child during the initial investigation, which shall be conducted in the presence of the following: (1) Childs counsel of choice or in the absence thereof, a lawyer from the Public Attorneys Office; (2) Childs parents, guardian, or nearest relative, as the case may be; and (3) LSWDO. In the absence of the childs parents, guardian, or nearest relative, and of the LSWDO, the investigation shall be conducted in the presence of a representative of an NGO or faith-based group, or a member of the BCPC. Rule 23.c. How the statement of the child is taken In taking the statement of the child, the law enforcement officer shall observe the following guidelines: (1) The investigation shall be child friendly and be conducted in a non-intimidating manner. (2) The interview of the child shall be conducted in a separate interview room to make the child feel comfortable and free to express him/herself. (3) The law enforcement officer shall use simple and understandable language in taking the statement of the child during the initial investigation.
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(4) The law enforcement officer shall allow the LSWDO, or the persons taking his/her place as above enumerated, to actively assist in conducting the initial investigation. (5) There should be enough privacy to avoid unnecessary interruptions, distractions and/or participation from non-parties that could humiliate or make the child uncomfortable. (6) The written statement to be prepared shall reflect the language used by the child and not the language used by the law enforcement officer. The initial investigation shall be conducted in the best interest of the child and in a manner which allows the child to participate and to express him/herself freely. Rule 23.d. Signing statements As provided in Section 21(m), the law enforcement officer conducting the initial investigation shall ensure that all statements signed or thumbmarked by the child during investigation shall be witnessed by the childs parents or guardian, the LSWDO, or if not present, any other social worker, or counsel in attendance, who shall affix his/her signature to the said statement. Rule 23.e. After taking the statement of the child above fifteen years of age After taking the statement of the child who is above fifteen (15) years of age but below eighteen (18) years of age, the law enforcement officer shall refer the records of the child to the LSWDO for an assessment if the child acted with discernment as provided in Rule 34. The law enforcement officer shall transmit the following records of the child to the LSWDO: (1) Written statement of the child; (2) Other pertinent records such as the documents showing the basis for the determination of the age of the child; (3) Medical report if available; and (4) All other records that may assist the LSWDO in making an assessment if the child acted with discernment. The LSWDO shall, as part of the initial investigation, assess if the child acted with discernment in accordance with Rule 34 and
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make the necessary recommendation to the law enforcement officer on the basis of said assessment. The law enforcement officer shall consider the assessment made by the LSWDO in preparing the report of the initial investigation and in deciding where to refer the case of the child. Rule 23.f. Report on initial investigation; what to record After the initial investigation, the law enforcement officer conducting the same shall prepare a report, which contains the following information: (1) Whether handcuffs or other instruments of restraint were used, and if so, the reason for such; (2) That the parents or guardian of a child, the DSWD or the LSWDO, and the PAO have been duly informed of the apprehension and the details thereof; (3) The exhaustion of measures to determine the age of a child; (4) The basis for the determination of the age of the child; (5) The precise details of the physical and medical examination or the failure to submit a child to such examination; (6) To whom the child was released and the basis for the release; and (7) Where the case shall be referred as provided in the next Rule and the basis for such disposition, i.e., the nature of the offense allegedly committed by the child, the corresponding imposable penalty for the commission of the alleged offense, and the assessment of discernment as provided in Rule 34. RULE 24. WHERE THE CASE SHALL BE REFERRED After the initial investigation, the law enforcement officer shall determine if the case of the child shall be referred to: (1) The LSWDO for intervention in accordance with Section 20 of the Act and Part VII of these Rules if the child is: (a) Fifteen (15) years old or below; or (b) Above 15 but below 18 years of age and acted without discernment.
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(2) Diversion, in accordance with Section 23 of the Act and Part VIII of these Rules, under the: (a) Law enforcement officer if the child is above 15 but below 18 years of age, acted with discernment and allegedly committed an offense with an imposable penalty of not more than six (6) years of imprisonment; or (b) LSWDO if the child is above 15 but below 18 years of age, acted with discernment and allegedly committed an offense that is a victimless crime with an imposable penalty of not more than six (6) years of imprisonment. (3) The prosecutor or judge if the child is above fifteen (15) but below 18 years of age, acted with discernment and allegedly committed an offense with an imposable penalty of more than six (6) years of imprisonment. The report on the initial investigation as required under Rule 23.f. shall state where the case shall be referred and the basis for such disposition, which include the following information: (1) The nature of the offense allegedly committed by the child; (2) The corresponding imposable penalty for the commission of the offense; and (3) Where the case of the child shall be referred in the event of an assessment that the child acted with discernment as provided in Rule 34. RULE 25. TURNOVER OF CUSTODY In all cases, the law enforcement officer shall turn over the physical custody of the child to the LSWDO within eight (8) hours from apprehension, as required under Section 21(i) of the Act. The physical custody of the child shall be transferred to the LSWDO even if the law enforcement officer has not yet exhausted all measures to determine the age of the child under Rule 30 and even if the initial investigation under Rule 23 has not yet been terminated. After the physical custody of the child is turned over, the LSWDO shall then explain to the child and the childs parents/guardians the consequences of the childs act with a view towards counseling and
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rehabilitation, diversion from the criminal justice system, and reparation, if appropriate, as required by Sec. 21(i) of the Act. In the event a child whose custody is turned over by the law enforcement officer is fifteen (15) years old or below, the LSWDO shall take all measures to release the child to the parents or guardians, or to any of the persons or organizations provided in Rule 31.b, and proceed with the development of appropriate programs as provided under Part VII of these Rules. RULE 26. PENDING TURNOVER OF CUSTODY Pending the turn over of the custody of the child to the parents, guardians or the LSWDO, as in cases when the child is apprehended at night time or during weekends, the law enforcement officers shall ensure that the child shall be temporarily secured in an area separate from that of the opposite sex and adult offenders and not put in the detention cell or jail. The temporary physical custody of child in such cases may also be given to a duly registered NGO, i.e., licensed and accredited by the DSWD, a faith-based organization, a barangay official, or a member of the BCPC. RULE 27. DUTY TO MAINTAIN CONFIDENTIALITY AND PRIVACY From the time he/she takes custody of the child in conflict with the law, the law enforcement officer shall handle the case of the child with utmost confidentiality. Particularly, the law enforcement officer shall: (a) Use a system of coding that provides aliases for children taken into custody; (b) Maintain a separate logbook for children in conflict with the law; (c) Exclude the public, particularly the media, from the area where the child is being held in custody pursuant to Section 43 of the Act;
(d) Not provide any detail or information to the public, particularly the media, that shall lead to the identity of the child; (e) Keep the results of the medical examination confidential; and (f) Mark the records of the child and the report on the initial investigation as confidential.
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The law enforcement officer shall direct the media to observe the Guidelines for Media Practitioners on the Reporting and Coverage of Cases Involving Children issued by the Special Committee for the Protection of Children. RULE 28. PROHIBITED ACTS WHEN IN CUSTODY OF CHILD Rule 28.a. Detention A child in conflict with the law shall not be locked up in a detention cell. The child shall not be detained in the provincial, city or municipal jail, even if there are quarters separate from adult detainees. Rule 28.b. Search by an officer of the opposite sex A child in conflict with the law shall not be searched by a law enforcement officer of the opposite sex. Rule 28.c. Contact with adult offenders and offenders of opposite sex Should the detention of the child in conflict with the law be necessary pending turnover to the LSWDO or the other persons who may take custody of the child under Section 21(i) of the Act [Rule 31.b], the child shall be secured in quarters separate from that of the opposite sex and adult offenders. Rule 28.d. Vulgar language As required under Section 21(d) of the Act, the law enforcement officer having custody of the child shall refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on the child in conflict with the law. Rule 28.e. Harassment and abuse The law enforcement officer shall refrain from sexually harassing or abusing, or making sexual advances on the child in conflict with the law. Rule 28.f. Display and use of instruments of force or restraint The law enforcement officer shall refrain from subjecting the child in conflict with the law to greater restraint than is necessary for apprehension.
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If handcuffs or other instruments of restraint are used on the child, the law enforcement officer shall record such fact in the report on the initial investigation as required under Section 21(l) of the Act and Rule 23.f, and the reason for the use of such instruments of restraint. As required under Section 21(e) of the Act, the law enforcement officer from the time of initial contact with the child shall also avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed. Rule 28.g. Violence or unnecessary force As prescribed by Section 21(g) of the Act, the law enforcement officer shall avoid the use of violence or unnecessary force on the child in conflict with the law. Rule 28.h. Prohibitions also applicable to non-law enforcement officers Other authorities including but not limited to persons to whom custody of the child is turned over under Section 21(i) of the Act [Rule 31.b] and all persons having contact with the child in conflict with the law shall also strictly observe the prohibitions under this Rule.
PART VI CRIMINAL RESPONSIBILITY
RULE 29. EXEMPTION FROM CRIMINAL LIABILITY Rule 29.a. Who are exempt As provided in Section 6 of the Act, the following shall be exempt from criminal liability: (1) A child fifteen (15) years of age or under at the time of the commission of the offense; (2) A child above fifteen (15) years but below eighteen (18) years of age who acted without discernment at the time of the commission of the offense.
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Rule 29.b. Treatment of children exempt from criminal responsibility Children exempt from criminal liability as referred in this Rule shall be subjected to an intervention program pursuant to Section 20 of the Act and Part VII of these Rules. Rule 29.c. Non-exemption from civil liability As provided in Section 6 of the Act, the exemption from criminal liability of children under this Rule does not include exemption from civil liability, which shall be enforced in accordance with existing laws. RULE 30. AGE Rule 30.a. Who determines the age; when and how As provided in Rule 22, the law enforcement officer having initial contact with the child, after taking the child into custody, shall immediately determine the age of the child. In making such determination, the law enforcement officer shall, consistent with Section 7 of the Act, take any or all of the following measures to ascertain the age of the child: (1) Obtain documents that show proof of the childs age, such as: (a) Childs birth certificate; (b) Childs baptismal certificate; or (c) Any other pertinent documents such as but not limited to the childs school records, dental records or travel papers.
The law enforcement officer may obtain the above documents from any of the following: (a) Parents, guardian or relatives of the child (for copies of any of the above documents); (b) Local civil registrar or the National Statistics Office (for a copy of the birth certificate); (c) School the child attends (for school records, dental records, birth certificate or baptismal certificate, when required by the school);
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(d) Local health officer (for medical records); and (e) Church (for baptismal records). (2) When the above documents cannot be obtained or pending receipt of such documents, the law enforcement officer shall exhaust other measures to determine age by: (a) Interviewing the child and obtaining information that indicate age (e.g., date of birthday, grade level in school); (b) Interviewing persons who may have knowledge of the age of the child (e.g., relatives, neighbors, teachers, classmates); (c) Evaluating the physical appearance (e.g., height, built) of the child; and (d) Obtaining other relevant evidence of age. The law enforcement officer may obtain the assistance of the LSWDO and the BCPC in gathering documents and other relevant information in ascertaining the age of the child. Rule 30.b. In case of doubt; presumption of minority In case of doubt as to the age of the child, after all measures are exhausted to determine it, the age shall be resolved in his/her favor. As provided in Section 7 of the Act, the child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. Rule 30.c. If age is contested As provided in Section 7 of the Act, any person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court may file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all interested parties. If a case has been filed against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion to determine the age of the child in the same court where the case
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is pending. Pending hearing on the said motion, proceedings on the main case shall be suspended. In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law. RULE 31. BELOW THE AGE OF CRIMINAL RESPONSIBILITY Rule 31.a. Immediate release of child; notify LSWDO As provided in Section 20 of the Act, if it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have initial contact with the child has the duty to: (1) Immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the childs nearest relative; and (2) Notify the LSWDO for the determination of appropriate intervention and prevention programs for the child. Rule 31.b. Custody of child below age of criminal responsibility If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody of the child, the child may be released by the authority having initial contact with the child to any of the following: (1) A duly registered non-governmental organization, i.e., duly licensed and accredited by the DSWD; (2) A faith-based organization; (3) A barangay official; (4) A member of the BCPC; (5) An LSWDO; or (6) The DSWD when and where appropriate. If parents, guardians or relatives are unable to take custody of the child due to mental or physical incapacity or incarceration, the child shall be referred to alternative placement such as foster homes, in addition to what has been provided in the Act. Rule 31.c. Duty of the local social worker
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Immediately after being notified of the apprehension of the child fifteen (15) years old or below, the LSWDO shall: (1) Prepare a case study report on the child; and (2) Determine the appropriate intervention and prevention programs in consultation with the child and the person having custody over the child. The LSWDO shall also determine if the child is abandoned, neglected or abused by his/her parents for purposes of filing a petition for involuntary commitment if necessary. If the safety of the child is in danger in view of the alleged commission of the offense, the LSWDO shall encourage the parent or guardian of the child to request for temporary custody of the child to the DSWD or licensed and accredited NGOs. In the event the parent or guardian does not agree to the request for temporary custody of the child, the LSWDO shall carefully review the case of the child and file a petition for involuntary commitment when sanctioned by law, in accordance with P.D. 603 and the SC Rule on Commitment of Children. RULE 32. PETITION FOR INVOLUNTARY COMMITMENT A petition for involuntary commitment may be filed by the LSWDO with the technical assistance of DSWD, or by the DSWD if: (a) The child in conflict with the law is found by the LSWDO to be abandoned, neglected or abused by his/her parents; or (b) The parents do not comply with the intervention and prevention programs as determined under Part VII of these Rules. A child in conflict with the law is considered: (a) Abandoned when the child has no proper parental care or guardianship or when the childs parents or guardians have deserted him/her for a period of at least six (6) continuous months, as provided in Art. 141(2), Title VIII of P.D. 603; (b) Neglected when his/her basic needs have been deliberately unattended or inadequately attended as provided in Art. 141(3) of P.D. 603; or
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(c) Abused when upon the evaluation of the LSWDO, the child is found to be maltreated, whether habitual or not, as defined in Section 3(b) of Republic Act No. 7610, or the Special Protection of Children Against Abuse, Exploitation and Discrimination Act [R.A. 7610]. The filing of the petition for involuntary commitment shall be done in accordance with the provisions of Title VIII, Chapter 1 of P.D. 603 and the SC Rule on Commitment of Children. RULE 33. ABOVE THE AGE OF CRIMINAL RESPONSIBILITY Rule 33.a. Still exempt The child in conflict with the law who is above fifteen (15) but below eighteen (18) years of age shall be exempt from criminal responsibility, unless he/she acted with discernment. Being exempt, the child shall be dealt with in the same manner as a child who is below the age of criminal responsibility as provided in Rule 30 and Part VII of these Rules. Rule 33.b. Unless acted with discernment If the child in conflict with the law is above fifteen (15) years old but below eighteen (18) years of age acted with discernment, the child shall proceed to diversion under Chapter 2 of the Act and Part VIII of these Rules. RULE 34. DISCERNMENT Rule 34.a. Definition Discernment is the mental capacity to understand the difference between right and wrong and its consequences. Rule 34.b. Initial assessment of discernment The LSWDO, after the law enforcement officer refers the records of a child who is fifteen (15) years old or above but below eighteen (18) years old as provided in Rule 25.f, shall prepare a report indicating an assessment if the child acted with discernment for the purpose of determining whether to proceed with intervention under Sec. 20 of the Act (Part VII of these Rules) or with diversion under Chapter 2 of the Act (Part VIII of these Rules).
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Rule 34.c. Basis for assessment of discernment In making an assessment if the child who is above fifteen (15) years but below eighteen (18) years of age acted with discernment, the LSWDO shall take into consideration: (1) All the facts and circumstances of the case; (2) The educational level and performance of the child in conflict with the law; (3) The appearance, attitude, comportment and behavior of the child in conflict with the law, before, during and after the commission of the offense. The LSWDO shall consider only factors that indicate if the child acted with discernment and not indicators of premeditation or intention to commit the alleged offense. The LSWDO shall be further guided by procedures to be prescribed by the DSWD in making an assessment of the presence or absence of discernment. The LSWDO shall endeavor continuously be updated with latest trends in conducting psychosocial analyses of children and research on factors affecting the behavior of children in conflict with the law. Rule 34.d. After the assessment After making an assessment, the LSWDO shall prepare a report showing the basis for the assessment if the child acted with or without discernment. This report shall be submitted to the law enforcement officer handling the case of the child. After receipt of the report by the LSWDO, the law enforcement officer shall conclude the initial investigation and refer the case of the child in accordance with Rule 26. Rule 34.e. Upon initial assessment of no discernment If after consideration of the initial assessment that the child who is above fifteen (15) but below eighteen (18) years of age acted without discernment, the law enforcement officer refers the case of the child to the LSWDO for intervention pursuant to Rule 26(1), the LSWDO has the duty to: (1) Immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the childs nearest relative or to those listed in Rule 31 when appropriate; and
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(2) Determine the appropriate intervention and prevention programs for the child as provided in Part VII of these Rules. Rule 34.f. Contesting the assessment of acting without discernment The offended party, in the event he/she contests the assessment of absence of discernment, may file the appropriate case before the prosecutor.
PART VII INTERVENTION FOR CHILDREN EXEMPT FROM CRIMINAL LIABILITY
RULE 35. CHILDREN IN CONFLICT WITH THE LAW GIVEN INTERVENTION PROGRAMS The following children exempt from criminal liability shall be given the appropriate intervention programs: (a) Those taken into custody who are fifteen (15) years old or below; and (b) Those above fifteen (15) but below eighteen (18) years old and found to have acted without discernment. RULE 36. FACTORS IN DETERMINING APPROPRIATE INTERVENTION PROGRAMS In determining the appropriate intervention and prevention programs for children exempt from criminal liability, the LSWDO shall take into account the best interest of the child, which considers, among others, the following: (a) Circumstances of the child (e.g., age, level of development, educational background); (b) Needs of the child if specially disadvantaged, i.e., street child, or child with mental or physical difficulties; (c) Family and social background of the child; (d) Influence of the family and environment on the growth of the child; (e) Ability and willingness of the parents or guardians to guide and supervise the child;
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(f)
Nature and circumstances of the offense charged;
(g) Availability of community-based programs for intervention and prevention; and (h) Safety and security of the child. The LSWDO shall further be guided by the principles of intervention as provided in Rule 15. The LSWDO shall engage the active participation of the child, in accordance with his/her evolving capacity, and his/her parents or guardians in the formulation and the implementation of the intervention programs. RULE 37. KINDS OF INTERVENTION PROGRAMS The intervention programs for the child exempt from criminal liability may include any or a combination of the following: (a) Counseling; (b) Peer counseling and life skills training and education; (c) Provision of support services to the family, e.g., parent effectiveness service, livelihood programs, skills trainings, etc.;
(d) Referral to other agencies for appropriate services, e.g., education, health, skills training, etc.; and (e) Access to child and youth organizations in the community, such as but not limited to the Sangguniang Kabataan.
The intervention programs determined by the LSWDO also include programs for the parents and family of the child. The time frame of the intervention programs and the outcome desired shall be specified. RULE 38. MONITORING COMPLIANCE The child and the parents, guardian or persons having custody of the child shall regularly report to the LSWDO who determined the intervention program for evaluation of the: (a) Effectiveness of the program; and (b) Compliance by the child and the parents with the terms and conditions of the prevention program.
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Rules 39-41
The frequency of reporting shall be determined by the LSWDO in the intervention program. To determine compliance with the program, the LSWDO shall also: (a) Conduct periodic visits at the home of the child or at the place where the custody of the child is given; and (b) Conduct case conference with local officials and authorities of the school where the child attends. RULE 39. FAILURE TO COMPLY WITH INTERVENTION PROGRAMS If the child and the parents, guardian or persons having custody of the child fail to comply with the intervention program, despite exhausting all efforts to assist them, the LSWDO may file the proper petition for involuntary commitment of the child pursuant to P.D. 603.
PART VIII DIVERSION FOR CHILDREN WHO ACTED WITH DISCERNMENT
RULE 40. CONCEPT/PRINCIPLES OF DIVERSION Diversion refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. In implementing diversion, the following principles shall be considered: (a) Use of positive measures; (b) Full mobilization of all possible resources, which include the family, volunteers, schools and other community institutions; (c) Effective, fair and humane dealing with the child; and (d) Promotion of the well-being of the child. RULE 41. WHO SHALL UNDERGO; VENUE OF DIVERSION Pursuant to Section 23 of the Act, the child in conflict with the law shall undergo diversion proceedings if he/she:
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(a) Is above fifteen (15) years but below eighteen (18) years of age; (b) Acted with discernment; and (c) Allegedly committed an offense with an imposable penalty of not more than six (6) years of imprisonment if diversion is conducted at the barangay, police or prosecutors level, and not more than twelve (12) years of imprisonment, if diversion is resorted to by the court.
RULE 42. WHERE DIVERSION MAY BE CONDUCTED As provided under Section 24 of the Act, if the imposable penalty for the offense committed is not more than six (6) years of imprisonment, diversion may be conducted at the: (a) Katarungang Pambarangay level under the Punong Barangay as provided in Rule 43; (b) Police investigation stage under the law enforcement officer as provided in Rule 44; or (c) Inquest or preliminary investigation stage under the prosecutor as provided in Rule 55.
If the offense with the imposable penalty of not more than six (6) years imprisonment is a victimless crime, the diversion proceedings shall be conducted by the LSWDO in coordination with the BCPC. If the imposable penalty for the offense committed exceeds six (6) years of imprisonment but not more than twelve (12) years of imprisonment, diversion may resorted to only by the court. RULE 43. AT THE KATARUNGANG PAMBARANGAY LEVEL Rule 43.a. Diversion prior to entry to the criminal justice system A child in conflict with law may undergo diversion proceedings outside the criminal justice system when his/her case is referred to the barangay through the Lupon Tagapamayapa. Rule 43.b. Who conducts and assists Diversion at the Katarungang Pambarangay level shall be conducted by the Lupon Tagapamayapa, chaired by the Punong Barangay, with the assistance of the members of the BCPC, as provided in Section 23(a) of the Act.
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Rule 43
Rule 43.c. Nature of proceedings; participants The Punong Barangay shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and his/her family shall be present in the conduct of these diversion proceedings. The offended party may participate in the diversion proceedings. The absence of the offended party in the diversion proceedings or his/her disagreement in its conduct shall not prevent the proceedings from being conducted. The Punong Barangay shall, however, endeavor to obtain the participation and the consent of the offended party in the formulation of the diversion program. Rule 43.d. Formulation and supervision of diversion program at the Barangay level The diversion program at the Katarungang Pambarangay level shall be formulated by the Punong Barangay with the assistance of the BCPC members in accordance with Rule 49. The supervision of the diversion program at this level shall likewise be done by the Punong Barangay, with the assistance of the BCPC. As a form of monitoring, the members of the BCPC and the community volunteers to be designated by the BCPC may conduct house visits with the child and his/parents or guardian to track the childs compliance with the contract of diversion and the childs performance of the diversion program. This may be done in consultation with the LSWDO. Rule 43.e. Duty of Punong Barangay when there is no diversion Pursuant to Section 27 of the Act, the Punong Barangay handling the case shall, within three (3) days from determination of absence of jurisdiction or termination of the diversion proceedings as provided below, forward the records of the case to the: (1) Law enforcement officer or prosecutor when the child or the childs parents/guardian does not consent to a diversion. Upon the issuance of the corresponding document, certifying to the fact that no agreement has been reached by the parties, the case shall be filed according to the regular process.
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(2) Prosecutor or the court when the case involves an offense with an imposable penalty of more than six (6) years imprisonment. RULE 44. AT THE LAW ENFORCEMENT LEVEL Rule 44.a. When conducted at the law enforcement level Diversion shall be conducted at the law enforcement level when: (1) After the conduct of diversion proceedings at the Katarungang Pambarangay level, the child or the childs parents/ guardian does not consent to a diversion and the Punong Barangay forwards the case of the child as provided under Rule 43.d(i); (2) After the conduct of the initial investigation, the law enforcement officer determines that the child is above 15 but below 18 years of age, acted with discernment and allegedly committed an offense, that is not a victimless crime, with an imposable penalty of not more than six (6) years of imprisonment, as provided under Rule 26(2)(a). Rule 44.b. Who conducts and assists Diversion at the police investigation stage shall be conducted by the law enforcement officer with the assistance of the LSWDO, as provided in Section 23(a) of the Act. Rule 44.c. Nature of proceedings; participants The nature of diversion proceedings to be conducted by the law enforcement officer and the participants therein shall be the same as that under Rule 43.c. Rule 44.d. Duty of the law enforcement officer when there is no diversion Pursuant to Section 23 of the Act, the law enforcement officer handling the case shall forward the records of the case to the prosecutor or judge when the case involves an offense with an imposable penalty of more than six (6) years imprisonment; or the child or the childs parents/guardian does not consent to a diversion. The case records shall be forwarded within three (3) days from determination
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of absence of jurisdiction or termination of the diversion proceedings as above stated. The prosecutor or judge to whom the records are referred shall conduct the preliminary investigation and determine whether or not the child should remain under custody and correspondingly charged in court. RULE 45. AT THE LEVEL OF THE LSWDO IN CASE OF VICTIMLESS CRIMES Rule 45.a. When diversion is conducted at the LSWDO level Diversion shall be conducted at the level of the LSWDO when after the conduct of initial investigation, the law enforcement officer determines that the child is above 15 but below 18 years of age, acted with discernment and allegedly committed a victimless crime where the imposable penalty is not more than six (6) years of imprisonment, as provided under Rule 26(2)(b). Rule 45.b. Nature of proceedings The LSWDO shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC. RULE 46. AT THE COURT LEVEL Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court and will proceed in accordance with the SC Rules on Juveniles in Conflict with the Law. RULE 47. DIVERSION PROCEEDINGS Rule 47.a. Duties of the authority conducting diversion proceedings The authority conducting the diversion proceedings shall: (1) Explain to the child and his/her family the objective of the diversion proceedings, the value of diversion and the consequence of not undergoing diversion. (2) Ask the child of the circumstances of the offense, the motives or purpose of the offense and the factors that led the child to commit the offense.
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(3) Ask the child of his/her personal circumstance including his/her parents and family, his/her peers and educational status. (4) Make the child in conflict with the law understand the consequences of his/her actions and the corresponding responsibilities. (5) Ensure that the child understands and realizes his/her accountability, be remorseful of his/her actions and takes on the responsibility in repairing the harm done in lieu of filing a formal case in the court. The authority conducting the diversion proceedings shall also determine if diversion is appropriate and desirable based on the factors provided in the next Rule. Upon a finding that diversion is not applicable or desirable, the authority handling the diversion proceedings shall issue the corresponding document certifying to such fact and shall file the case according to the regular process. Rule 47.b. Factors in determining if diversion is appropriate In determining whether diversion is appropriate and desirable, the following factors shall be taken into consideration by the authority conducting the diversion proceedings: (1) Nature and circumstances of the offense charged; (2) Frequency and the severity of the act; (3) Circumstances of the child (e.g., age, maturity, intelligence, etc.); (4) Influence of the family and environment on the growth of the child; (5) Reparation of injury to the victim; (6) Weight of the evidence against the child; (7) Safety of the community; and (8) Best interest of the child. The determination of appropriateness and desirability of diversion shall consider the recommendation of the LSWDO, when applicable.
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Rule 47
Rule 47.c. Conduct of diversion proceedings The authority conducting the diversion proceedings shall ensure that the proceedings are child-friendly and sensitive to the needs, welfare and the protection of the rights of the child in conflict with the law. The authority shall use language that is simple and understandable to the child in conflict with the law. Diversion proceedings shall be conducted in a place where the identities of the child and the parties concerned are kept confidential. There should be enough privacy to avoid unnecessary interruptions, distractions and/or participation from non-parties that could humiliate or make the child uncomfortable. The DSWD, in consultation with the LGUs particularly LCPCs, shall formulate rules and guidelines that should be followed during the diversion proceedings to protect the child from coercion, intimidation, harm, abuse, or other actions detrimental to the child. Such guidelines shall ensure that the child understands the diversion proceedings in which he/she is involved. Rule 47.d. Custody pending diversion proceedings Pending the conduct of the diversion proceedings, the custody of the child shall be given to the parents, guardians, relatives or any other responsible person in the community, taking into consideration the best interest of the child in conflict with the law. Rule 47.e. Whose consent required; if not obtained The consent of the child and of the parents or guardian of the child shall be obtained in arriving at a contract of diversion. When the consent of either is not obtained, the diversion proceedings shall be terminated and the case of the child referred in accordance with Rule 51. Rule 47.f. Length of proceedings; when terminated The diversion proceedings shall be completed within forty-five (45) days. Diversion proceedings are deemed terminated when: (1) A contract of diversion has been entered; (2) The forty-five day period expires without any agreement reached;
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(3) The child or his/her parents or guardian do not consent to a diversion; (4) The authority conducting the diversion finds that diversion is not applicable based on the factors enumerated in the immediately preceding Rule. RULE 48. CONTRACT OF DIVERSION Rule 48.a. When entered; voluntary admission A contract of diversion may be entered during the diversion proceedings when the child voluntarily admits the commission of the act as provided in Section 26 of the Act. The voluntary admission of the child during the diversion proceedings shall be only deemed as consent to undergo the diversion program and shall not be considered a plea of guilt. Rule 48.b. Admission not to be taken against the child Any admission of the child shall not be used against the child in any subsequent judicial, quasi-judicial or administrative proceedings. Neither shall the admission be used against the child through denial of privileges and opportunities, discrimination in treatment, or imposition of any form of liability or punishment by reason of such admission. Rule 48.c. Acceptance of contract; form and content The contract of diversion containing the diversion program shall be effective and binding if accepted by the child and the parents or guardian of the child. The contract shall be in writing and signed by the: (1) Child; (2) Parents or guardian of the child; (3) Authority that conducted the diversion proceedings (the Punong Barangay, the law enforcement officer or the prosecutor); (4) Member of the BCPC assisting the Punong Barangay, in cases of diversion proceedings at the Katarungang Pambarangay level; and (5) LSWDO in cases of diversion proceedings by the law enforcement officer or by the prosecutor.
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Rule 49
The contract of diversion shall contain the individualized diversion program and shall stipulate the rights, responsibilities or accountabilities of the child, the parents or guardian and the offended party, when applicable. The contract of diversion considers as the responsibility or accountability of the child to restore the harm done in view of the offense committed. As such, the authority conducting the diversion proceedings shall endeavor to obtain the agreement of the offended party in the formulation of the individualized diversion program contained in the contract of diversion by: (1) Explaining to the offended party the benefits of forgiveness and diversion, and the need to reform the child within the auspices of the community instead of detention homes or rehabilitation centers once the child expresses remorse and a willingness to ask for forgiveness from the offended party; and (2) Assuring the offended party that the LSWDO, together with the local government and the community, will take care of the responsibility of reforming and monitoring the child through various diversion programs. However, the acceptance of the offended party is not required for a contract of diversion to be valid. RULE 49. FORMULATION OF THE DIVERSION PROGRAM Rule 49.a. Factors considered in formulation The diversion program shall be formulated during the diversion proceedings. In the formulation of the diversion program, the individual characteristics and the peculiar circumstances of the child in conflict with the law, including but not limited to the cultural, social, economic and religious circumstances of the child, shall be used to formulate an individualized treatment. Consistent with Section 30 of the Act, the following factors shall be considered in formulating a diversion program for the child: (1) The childs feelings of remorse for the offense he/she committed; (2) The parents or legal guardians ability to guide and supervise the child;
Rule 49
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(3) The victims view about the propriety of the measures to be imposed; (4) The availability of community-based programs for rehabilitation and reintegration of the child; and (5) Record of prior offenses, if any. The diversion program shall include adequate socio-cultural and psychological responses and services for the child. Rule 49.b. Kinds of diversion program As provided in Section 31 of the Act, at the different stages where diversion may be resorted to, the diversion programs may be agreed upon, such as, but not limited to: (1) At the level of the Punong Barangay: (a) Restitution of property; (b) Reparation of the damage caused; (c) Indemnification for consequential damages; (d) Written or oral apology; (e) Care, guidance and supervision orders; (f) Counseling for the child in conflict with the law and the childs family; (i) anger management skills; (ii) problem solving and/or conflict resolution skills; (iii) values formation; and (iv) other skills which will aid the child in dealing with situations which can lead to repetition of the offense; (h) Participation in available community-based programs, including community service; or (i) Participation in education, vocation and life skills programs.
(g) Attendance in trainings, seminars and lectures on:
(2) At the level of the law enforcement officer and the prosecutor:
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Rule 50
(a) Diversion programs specified under paragraphs (1)(a) to (1)(i) herein; and (b) Confiscation and forfeiture of the proceeds or instruments of the crime; (3) At the level of the appropriate court: (a) Diversion programs specified under paragraphs (a) and (b) above; (b) Written or oral reprimand or citation; (c) Fine; (d) Payment of the cost of the proceedings; or (e) Institutional care and custody. RULE 50. COMMUNITY-BASED PROGRAMS AS DIVERSION Rule 50.a. Objectives of community-based diversion The community-based programs for diversion, as distinguished from the programs for intervention under Rule 18, shall respond to the special needs, problems, interests and concerns of children in conflict with the law through the establishment of community-based mechanisms and programs to prevent them from offending and re-offending. Rule 50.b. Development of diversion; Assessment The community-based programs for diversion shall be developed by the LGUs through the LSWDOs and the LCPCs, in coordination with the schools, youth organizations and other concerned agencies. These programs shall be consistent with the standards prescribed in the Act and guidelines issued by the DSWD. The Sangguniang Kabataan, as prescribed by Section 17 of the Act, shall coordinate with the LCPC in the formulation and implementation of diversion programs in the community. LGUs shall be responsible making the assessment and evaluation of the community-based programs for diversion in their annual report on the comprehensive juvenile intervention programs. Rule 50.c. Family participation The family of the child in conflict with the law shall endeavor to actively participate in the community-based diversion program.
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RULE 51. COMPLIANCE WITH DIVERSION Rule 51.a. Reporting obligations The child together with the parents or guardians shall present themselves to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program. Rule 51.b. Supervision and monitoring The conduct of the diversion program at the law enforcement or prosecutor level shall be supervised by the LSWDO. The LSWDO, shall devise a monitoring and follow-up mechanism to ensure compliance with the contract of diversion particularly of the child and his/her parents or guardian, and to determine the progress of the rehabilitation, reintegration and the entire diversion program. Rule 51.c. Failure to comply Failure to comply with the terms and conditions of the contract of diversion, as certified by the LSWDO, shall give the offended party the option to institute the appropriate legal action. In cases where the there is failure of diversion at the Barangay level, the Punong Barangay that conducted the diversion proceedings, upon a finding of failure to comply, may refer the case of the child to the law enforcement officer or prosecutor as if there is no consent to the diversion or that diversion is not appropriate and desirable for the child as provided in Section 29 of the Act. In cases where the offense committed is a victimless crime, the LSWDO that conducted the diversion proceedings, upon a finding of failure to comply, may refer the case of the child to the prosecutor as if there is no consent to the diversion or that diversion is not appropriate and desirable for the child as provided in Section 29 of the Act. RULE 52. SUSPENSION OF PRESCRIPTION Rule 52.a. During diversion proceedings The period of prescription of the offense shall be suspended until the completion of the diversion proceedings but not to exceed forty-five (45) days.
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Rule 52.b. During diversion program The period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not exceeding a period of two (2) years.
PART IX PROSECUTION
RULE 53. WHEN TO PROCEED TO PRELIMINARY INVESTIGATION A child in conflict with the law shall proceed to appropriate preliminary investigation in the following cases: (a) The offense committed by the child in conflict with the law has an imposable penalty of more than six (6) years; (b) Offended party opts to file an action with failure to comply with the terms of diversion; (c) No consent or agreement to a diversion; and (d) When considering the assessment and recommendation of the LSWDO, the prosecutor determines that diversion is not appropriate for the child in conflict with the law. RULE 54. EFFORT TO DIVERT In cases where no consent or agreement to a diversion was reached at the level of the law enforcement officer or LSWDO conducting the diversion proceedings, the prosecutor shall still endeavor to arrive at an agreement to a diversion program. RULE 55. ALLEGATION OF TORTURE OR ILL-TREATMENT If there is an allegation of torture or ill-treatment of a child in conflict with the law during arrest or detention, it shall be the duty of the prosecutor to investigate the same and initiate the corresponding legal action when necessary. RULE 56. NOTICE TO THE PAO As provided in Section 33 of the Act, upon serving the subpoena and the affidavit of complaint, the prosecutor shall notify the Public Attorneys Office of such service, as well as the personal information, and place of detention of the child in conflict with the law.
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RULE 57. UPON DETERMINATION OF PROBABLE CAUSE Upon determination of probable cause by the prosecutor, the information against the child shall be filed before the Family Court within forty-five (45) days from the start of the preliminary investigation. RULE 58. IF THE CHILD IS DEPRIVED OF LIBERTY If the child in conflict with the law is deprived of liberty at the time the prosecutor assumes jurisdiction of the case, the PAO has the duty to manifest to the court such fact with the objective of obtaining an immediate order of release from the Court. RULE 59. SPECIAL TRAINING OF THE PROSECUTOR There shall be a specially trained prosecutor to conduct inquest, preliminary investigation and prosecution of cases involving a child in conflict with the law. Prosecutors assigned to handle cases of children in conflict with the law shall be given child-sensitivity and gender-sensitivity trainings and other appropriate trainings by the DOJ, with the assistance of the DSWD.
PART X COURT PROCEEDINGS
RULE 60. DIVERSION MEASURES Where the maximum penalty imposed by law for the offense with which the child in conflict with the law is charged is imprisonment of not more than twelve (12) years, regardless of the fine or fine alone regardless of the amount, and before arraignment of the child in conflict with the law, the court shall, pursuant to the SC Rules on Juveniles in Conflict with the Law, determine whether or not diversion is appropriate. RULE 61. TREATMENT OF CHILDREN PENDING TRIAL Rule 61.a. Alternatives to detention pending trial Children detained pending trial may be released on bail or recognizance as provided for under Sections 34 and 35 of the Act. In all other cases and whenever possible, detention pending trial may be replaced by alternative measures, such as close supervision,
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intensive care or placement with a family or in an educational setting or home. Rule 61.b. Detention as measure of last resort Institutionalization or detention of the child pending trial shall be used only as a measure of last resort and for the shortest possible period of time. RULE 62. BAIL Bail refers to the security given for the release of the person in custody of the law, furnished by him/her or a bondsman, to guarantee his/her appearance before any court. Bail may be given in the form of corporate security, property bond, cash deposit, or recognizance. For purposes of recommending the amount of bail, the privileged mitigating circumstance of minority shall be considered. RULE 63. RELEASE ON RECOGNIZANCE Recognizance refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court of the child in conflict with the law, when required. Where a child is detained, the court shall order the: (a) release of the minor on recognizance to his parents and other suitable persons; (b) release of the child in conflict with the law on bail; or (c) transfer of the minor to a youth detention home/youth rehabilitation center. RULE 64. NO JAIL DETENTION The court shall not order the detention of a child in a jail pending trial or hearing of his/her case. Whenever detention is necessary, a child will always be detained in youth detention homes established by local governments, pursuant to Section 8 of the Family Courts Act, in the city or municipality where the child resides. In the absence of a youth detention home, the child in conflict with the law may be committed to the care of the DSWD or a local rehabilitation center recognized by the government in the province,
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city or municipality within the jurisdiction of the court. The center or agency concerned shall be responsible for the childs appearance in court whenever required. RULE 65. AUTOMATIC SUSPENSION OF SENTENCE Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt. RULE 66. DISPOSITION MEASURES Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. RULE 67. DISCHARGE OF THE CHILD IN CONFLICT WITH THE LAW Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. RULE 68. RETURN OF THE CHILD IN CONFLICT WITH THE LAW TO COURT If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment.
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Rules 69-71
If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. RULE 69. CREDIT IN SERVICE OF SENTENCE The child in conflict with the law shall be credited in the services of his/her sentence with the full time spent in actual commitment and detention under this Act. RULE 70. PROBATION AS AN ALTERNATIVE TO IMPRISONMENT The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into account the best interest of the child. For this purpose, Sec. 4 of Presidential Decree No. 968, otherwise known as the Probation Law of 1976, is hereby amended accordingly.
PART XI REHABILITATION AND REINTEGRATION
RULE 71. OBJECTIVE OF REHABILITATION AND REINTEGRATION Rehabilitation is the process of rectifying or modifying a childs negative attitude and behavior. It enables the child to change his/her negative behavior into something positive and acceptable to the community. Reintegration is the process, which promotes or facilitates the acceptance of the child back to the community. It is the healing of the victims and the communitys wounds that was inflicted on them by the offense. Rehabilitation is integral to the process of reintegration. As provided in Section 44 of the Act, the objective of rehabilitation and reintegration of children in conflict with the law is to provide them with interventions, approaches and strategies that will enable them to improve their social functioning with the end goal of reintegration to their families and as productive members of their
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communities. Specifically, the objectives of the rehabilitation and reintegration of children in conflict with the law are the: (a) Provision of protection that substitutes parental care to the children in conflict with the law; (b) Assistance to the children in gaining insight into their behavior and attitudes and redirection of counter productive behavior patterns and anti-social attitudes into more positive and constructive ones; (c) Enhancement of the childrens coping capabilities and trust on others;
(d) Provision of opportunities for the children to acquire social and occupational skills and improved self-image; (e) Facilitation of the disposition of the case in court and the childs reintegration with family and community; and (f) Assistance to CICLs through educational intervention in the alternative learning system.
RULE 72. REHABILITATION OF CHILDREN IN CONFLICT WITH THE LAW Children in conflict with the law, whose sentences are suspended, may upon order of the court, undergo any or a combination of disposition measures, which are already in place, best suited to the rehabilitation and welfare of the child as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. RULE 73. COMMUNITY-BASED PROGRAMS FOR REHABILITATION Rule 73.a. Nature and objectives of community-based rehabilitation In addition to the objectives of rehabilitation and reintegration in Rule 71, community-based programs for rehabilitation shall: (1) Prevent disruption in the education or means of livelihood of the child in conflict with the law in case he/she is studying, working or attending vocational learning institutions; (2) Prevent separation of the child in conflict with the law from his/her parents/guardians to maintain the support system fostered by their relationship and to create greater awareness of their mutual and reciprocal responsibilities;
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(3) Facilitate the rehabilitation and mainstreaming of the child in conflict with the law and encourage community support and involvement; and (4) Minimize the stigma that attaches to the child in conflict with the law by preventing jail detention. Rule 73.b. Criteria in the development of programs for communitybased rehabilitation Every LGU shall establish community-based programs that will focus on the rehabilitation and reintegration of the child. All programs shall meet the criteria to be established by JJWC which shall take into account the following: (1) The purpose of the program, which is to promote the rights and welfare of the child in conflict with the law; (2) The need for the consent of the child and his/her parents or legal guardians to ensure the effectiveness of the program and the involvement of the family; and (3) The maximum participation of the DSWD accredited childcentered agencies in the community where the child in conflict with the law is in, whether public or private. The community-based programs that will specifically focus on the reintegration of children in conflict with the law may include but should not be limited to the existing/retained package of communitybased programs being implemented by the LGU. Rule 73.c. Implementation of community-based rehabilitation programs Under the supervision and guidance of the LSWDO, and in coordination with his/her parents or guardian, the child in conflict with the law shall participate in community-based programs, which shall include, but are not limited to: (a) (b) (c) (d) (e) (f) (g) Competency and life skills development; Socio-cultural and recreational activities; Community volunteer projects; Leadership training; Social services; Homelife services; Health services;
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(h) Spiritual enrichment; (i) Community and family welfare services; and (j) Continuing education programs. Based on the progress of the youth in the community, a final report will be forwarded by the local social welfare and development officer to the court for final disposition of the case.
Rule 73.d. Family participation The family of the child in conflict with the law shall endeavor to actively participate in the community-based rehabilitation. Rule 73.e. Release of the child If the community-based rehabilitation is availed by a child in conflict with the law, he/she shall be released to parents, guardians, relatives or any other responsible person in the community. RULE 74. INSTITUTIONAL REHABILITATION Rule 74.a. Objectives of institutional rehabilitation The objective of rehabilitation of children in conflict with the law in institutions is to provide care, protection, education and vocational skills, with a view to assisting them to assume socially constructive and productive roles in society. Children in conflict with the law who are placed in institutions shall receive care, protection and all necessary assistance social, educational, vocational, psychological, medical and physical that they may require because of their age, sex, and personality and in the interest of their wholesome development. Rule 74.b. Where a child may be admitted for rehabilitation In the event the court finds that community-based rehabilitation is inappropriate and deprivation of liberty through institutional rehabilitation is required, the child in conflict with the law may be committed to one of the following: (1) (2) (3) (4) Youth Detention Home; Youth Rehabilitation Center; Agricultural camps; and Other training facilities
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Rule 74.c. When a child may be placed in institutional rehabilitation As provided in Section 45 of the Act, no child shall be admitted in any rehabilitation or training facility without a valid order issued by the court after a hearing for the purpose. Rule 74.d. Register of children admitted The details of the court order referred in Rule 74.c shall be immediately entered in a register exclusively for children in conflict with the law. As required by Section 45 of the Act, no child shall be admitted in any facility where there is no such register. Rule 74.e. Social Case Study Report and other documents The LSWDO shall prepare a Social Case Study Report on the child in conflict with the law and forward this Report to the rehabilitation facility that shall admit the child. This Report shall include the psychological evaluation, medical records, birth certificate, school records and other documents necessary for planning the rehabilitation of the child. RULE 75. TREATMENT OF CHILDREN IN INSTITUTIONAL REHABILITATION Rule 75.a. Provision of a home environment As provided in Section 46 of the Act, the rehabilitation, training or confinement area of children in conflict with the law shall provide a home environment where children in conflict with the law can be provided with quality counseling and treatment. In the interest and well-being of the child in conflict with the law admitted in any facility, his/her parents or guardians shall have a right of access. Rule 75.b. Separate facilities from adults In all rehabilitation or training facilities, it shall be mandatory that children shall be separated from adults, unless they are immediate members of the same family, as provided in Section 46 of the Act. Under no other circumstance shall a child in conflict with the law be placed in the same confinement as adults. Rule 75.c. Treatment of female children in conflict with the law As provided in Section 47 of the Act, female children in conflict with the law placed in an institution shall be given special attention as
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to their personal needs and problems. In consideration of their gender needs, female children in conflict with the law shall be handled only by female doctors, correction officers and social workers. They shall be accommodated separately from male children in conflict with the law. They shall by no means receive less care, protection, assistance, treatment and training than the male children in conflict with the law. The fair treatment of female children in conflict with the law shall be ensured. In areas where there are few female children in conflict with the law, temporary homes or shelters shall be set up, subsidized and managed by the DSWD, LGUs or NGOs. Rule 75.d. Gender-sensitivity training No personnel of rehabilitation and training facilities shall handle children in conflict with the law without having undergone gender sensitivity training. The LGU in coordination the DSWD shall provide gender sensitivity training and other appropriate trainings relative to treatment and rehabilitation of children in conflict with the law. RULE 76. YOUTH DETENTION HOMES Rule 76.a. Nature A Youth Detention Home (or Youth Home) is a 24-hour childcaring institution managed by accredited LGUsand licensed and/or accredited NGOs providing short-term residential care for children in conflict with the law who are awaiting court disposition of their cases or transfer to other agencies or jurisdiction. Rule 76.b. Objectives of Youth Homes Youth Homes shall have different programs that meet the various needs of children in conflict with the law. Children whose liberty is restricted pending trial shall undergo programs different from those programs given children whose sentences are suspended. Rule 76.c. When placed in the custody of Youth Homes Only children in conflict with the law who are detained pending trial or are detained with adults at the time of the effectivity of the Act may be placed in the custody of Youth Homes.
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Institutionalization in Youth Homes shall only be done through a court order after a determination that the continued deprivation of liberty is necessary and that there are no appropriate alternatives for detention. Rule 76.d. Establishment of Youth Homes All LGUs shall exert efforts for the establishment of Youth Homes for children in conflict with the law within five (5) years from the effectivity of the Act. LGUs shall set aside an amount to build Youth Homes. Youth Homes may also be established by private and nongovernment organizations licensed and accredited by the DSWD, in consultation with the JJWC. All Youth Homes to be established shall be separate and located in a compound far from jails and other detention centers for adults. The DILG shall monitor the establishment and maintenance of Youth Homes in the LGUs. Rule 76.e. Operation and Standards The DSWD through its Standards Bureau shall, in consultation with concerned agencies, develop, review and enhance the standards for Youth Homes to ensure efficiency, effectiveness and accountability in the delivery of quality programs and services for children in conflict with the law who are detained pending trial. All Youth Homes shall operate in a secure manner that ensures the safety and protection of children in conflict with the law, staff and the community where it is located. It shall engage them in a helping relationship with a team of various disciplines in a home-like environment. It shall likewise comply with the standards set forth by the DSWD Standards Bureau. Rule 76.f. Registration, Licensing and Accreditation of Youth Homes No Youth Home shall operate without a valid registration, license and accreditation certificate from DSWD, except for Youth Homes managed by LGUs, which shall be exempt from registration and licensing. The DSWD shall undertake the accreditation and licensing of the operation of Youth Homes.
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Failure to comply with the registration, licensing and accreditation requirements shall be dealt with in accordance with Section 62 of the Act and Part XIV of these Rules. Other DSWD rules and regulations for registration, licensing and accreditation shall also be applied unless otherwise specified in these Rules. Rule 76.g. When and where to apply for accreditation LGU, private and NGO-managed Youth Homes established and operating without registration and/or license certificates prior to the effectivity of the Act shall apply for such within three (3) months upon effectivity of the IRR. Those that will be established after the application for registration shall be done prior its operation, for a license to operate within two years from date of registration. Application for accreditation shall be done within one (1) year from issuance of license. LGU-managed Youth Homes established prior to the effectivity of the Act shall apply for accreditation within three (3) months from date of effectivity of this IRR and those that will be established thereafter shall apply within one (1) year after its establishment. Applications for registration and license shall be filed with the DSWD Field Office where the Youth Home is located, except those managed by private and non-government organizations operating in more than one region, in which case, applications shall be filed with the DSWD Standards Bureau, Central Office. All applications for accreditation shall likewise be filed with the DSWD Standards Bureau. RULE 77. YOUTH REHABILITATION CENTER Rule 77.a. Youth rehabilitation center and its services A Youth Rehabilitation Center (or Youth Center) refers to a 24-hour residential care facility that provides children in conflict with the law with care, treatment and rehabilitation services under the guidance of a trained staff where children in conflict with the law on suspended sentence, or residents, are cared for under a structured therapeutic environment with the end view of reintegrating them in their families and communities as socially functioning individuals. A Youth Center is managed by the DSWD, LGUs, or licensed and/or accredited NGOs monitored by the DSWD, and the preceding rules on registration, licensing and accreditation shall apply.
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Rule 77.b. Limitations in mobility of residents Physical mobility of residents of Youth Centers may be restricted pending court disposition of the charges against them. Rule 77.c. Progress of the child in the center A quarterly report shall be submitted by the Youth Center to the proper court on the progress of the children in conflict with the law. Based on the progress of the children in the center, a final report will be forwarded to the court for final disposition of the case. Rule 77.d. Establishment of Youth Centers The DSWD shall establish Youth Centers in each region of the country. The local government and other private and non-government entities and organizations shall collaborate and contribute their support for the establishment and maintenance of these facilities. In regions where Youth Centers are not yet established, the DSWD shall immediately establish a Youth Center within one (1) year from the effectivity of the Act. Rule 77.e. Registration, Licensing and Accreditation of LGU and NGO-Managed Centers In case of Youth Centers managed by LGUs and NGOs, the Rules on registration, licensing and accreditation of Youth Detention Homes (Rules 76.e, 76.f and 76.g) shall apply. RULE 78. EXPENSES FOR CARE AND MAINTENANCE OF THE CHILD Rule 78.a. Who assumes expenses The expenses for the care and maintenance of a child in conflict with the law under institutional care, either in Youth Homes or Youth Centers, shall be borne by his/her parents or those persons liable to support him/her. In case the parents of the child in conflict with the law or those persons liable to support him/her cannot pay all or part of said expenses, the government shall shoulder said expenses in accordance with Rule 100.a. below.
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Rule 78.b. Determination of Standard Cost of Care and Maintenance The costs and maintenance of a child under institutional care shall be in accordance with the guidelines set forth by the DSWD in consultation with LGUs, private and licensed and/or accredited NGOs. These guidelines shall be updated at least every five (5) years in consideration of the prevailing price of commodities and cost of living in the locality where the facility operates. Rule 78.c. Notification and Payment of Cost of Care and Maintenance The DSWD, LGUs or NGOs having custody of the child either in Youth Homes or Youth Centers, shall notify the parents and the concerned LGUs where the offense was committed or where the child resides, as the case may be, within two (2) weeks after admission, indicating the corresponding amount needed for the care and maintenance of the child for the duration of his/her stay in the Home or Center. Specific instruction on the payment modes shall also be given to facilitate this. If no payment is made to the receiving institutions after three (3) notices, Rules 100.a and 100.b shall apply. RULE 79. AGRICULTURAL CAMPS AND OTHER TRAINING FACILITIES A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the Bureau of Corrections, in coordination with the DSWD. RULE 80. AFTER-CARE SUPPORT SERVICES Rule 80.a. When given; period After care support services are services given to children in conflict with the law whose cases have been dismissed by the proper court because of good behavior per recommendation of the DSWD social worker, the LGU, and/or any accredited NGO youth rehabilitation center. After-care support services for children in conflict with the law shall be given for a period of at least six (6) months.
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Rule 80.b. Nature and objectives After care support services include counseling and other community-based services designed to facilitate social reintegration, prevent re-offending and make the children productive members of the community. These services may include but should not be limited to seminar/workshops, life skills development, sports clinics activities, skill and livelihood programs for future employment and membership to existing youth organizations that enhance and teach life skills and positive lifestyle and other preventive programs. Rule 80.c. Who develops and provides the services The after-care support services under this Rule shall be provided by the LSWDO. The development of these services shall comply with the criteria set by the JJWC as provided in the Act and these Rules. The after-care support services shall engage the active participation of the child and his/her parents or guardians. Licensed and accredited NGOs may be mobilized by the LSWDO in the provision of after-care support services.
PART XII CONFIDENTIALITY AND PRIVACY
RULE 81. RIGHT TO CONFIDENTIALITY AND PRIVACY As provided in Section 5(h) of the Act, a child in conflict with the law has the right to have his/her privacy respected fully at all stages of the proceedings, from initial contact to the final disposition of the case, including stages when child undergoes intervention, diversion, rehabilitation or aftercare programs. As such, all records and proceedings involving children in conflict with the law from initial contact until final disposition of the case shall be considered privileged and confidential. The identity of the child shall not be divulged unless necessary and with authority of a judge. No information that may lead to the identification of a child in conflict with the law and members of his/her family shall be published or broadcast in any mass media. In case the offended party is a child, the right to confidentiality and privacy of said child shall be governed by Republic Act No.
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7610 (the Special Protection Against Child Abuse, Exploitation and Discrimination Act), Republic Act No. 8505 (the Rape Victim Assistance and Protection Act), and their Implementing Rules and Regulations. RULE 82. RECORDS AND PROCEEDINGS As provided in Section 5(h) of the Act, the public shall be excluded during the proceedings, from initial contact to the final disposition of the case, and all records from these proceedings shall not be disclosed directly or indirectly to anyone by any of the parties or the participants in the proceedings for any purpose whatsoever, except: (a) To determine if the child in conflict with the law may have his/her sentence suspended; (b) If the child in conflict with the law may be granted probation under the probation law; or (c) To enforce the civil liability imposed in the criminal action.
RULE 83. MEDICAL EXAMINATION RESULTS The results of the medical examination of the child in conflict with the law taken prior or during the trial shall be kept confidential, unless otherwise ordered by the Family Court. RULE 84. WHEN RECORDS MAY BE DISCLOSED AND TO WHOM The disclosure of confidential records may only be done upon order of the Court. The records of the child in conflict of the law may only be disclosed to persons specifically enumerated in the order of the Court permitting such disclosure. RULE 85. USE OF RECORDS IN SUBSEQUENT PROCEEDINGS As provided in Section 43 of the Act, the records of a child in conflict with the law shall not be used in subsequent proceedings, whether criminal, civil or administrative, for cases involving the same offender as an adult, except when beneficial for the offender and upon his/her written consent. RULE 86. DUTY TO UPHOLD CONFIDENTIALITY As required under Section 43 of the Act, all authorities having contact with the child in conflict with the law or having access to
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the records of the child in conflict with the law shall undertake all measures to protect this confidentiality of proceedings, including the: (a) Use of a system of coding that provides aliases for children taken into custody; (b) Maintenance of a separate logbook and a separate police blotter for children in conflict with the law; (c) Exclusion of the public, particularly the media, from the area where the child is being held in custody pursuant to Section 43 of the Act; (d) Non-disclosure of any detail or information to the public, particularly the media, that shall lead to the identity of the child; (e) Keeping the results of the medical examination confidential; and (f) Marking of the records of the child and the report on the initial investigation as confidential. Failure to undertake measures to maintain confidentiality is punishable under Sec. 62 of the Act. RULE 87. EXEMPTION FROM PERJURY AND LIABILITY FOR CONCEALMENT OR MISREPRESENTATION A person who has been in conflict with the law as a child shall not be held under any provision of law, to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him/her for any purpose, pursuant to Section 43 of the Act. No person shall also be denied privileges and opportunities, discriminated against, punished or in any manner held liable or responsible for non-disclosure of any fact relating to his/her conflict with the law as a child.
PART XIII EXEMPTING PROVISIONS
RULE 88. STATUS OFFENSES, NOT PUNISHABLE As provided in Section 57 of the Act, status offenses or offenses which discriminate only against a child, while an adult
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does not suffer any penalty for committing similar acts, shall not be punished. Any conduct not considered an offense or not penalized if committed by an adult, including but not limited to curfew violations, truancy, parental disobedience and the like, shall not be considered an offense and shall not be punished if committed by a child. In the event a child is apprehended for or accused of committing status offenses, law enforcement officers have the obligation to immediately release the child and that the provisions of this Act on prevention, diversion or rehabilitation shall not apply. RULE 89. OFFENSES NOT APPLICABLE TO CHILDREN Rule 89.a. Exemption from prosecution As provided in Section 58 of the Act, all children shall be exempt from prosecution for the following offenses, being inconsistent with the United Nations Convention of the Rights of the Child: (1) Vagrancy and prostitution under Article 202 of the Revised Penal Code; (2) Mendicancy under Presidential Decree No. 1563; and (3) Sniffing of rugby under Presidential Decree No. 1619. Rule 89.b. Treatment of children exempt from prosecution Upon initial contact with the child found to have committed any of the offenses enumerated in Rule 89.a, the law enforcement officer shall immediately turn over the custody of the child to the LSWDO. The child shall undergo appropriate counseling and treatment program to be determined by the LSWDO as provided in Section 58 of the Act. RULE 90. EXEMPTION FROM THE APPLICATION OF DEATH PENALTY As provided in Section 59 of the Act, the provisions of the Revised Penal Code, as amended, Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and other special laws notwithstanding, no death penalty shall be imposed upon children in conflict with the law.
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PART XIV PROHIBITED ACTS AND PENAL PROVISION
RULE 91. LABELING AND SHAMING As mandated by Section 60 of the Act, in the conduct of the proceedings beginning from the initial contact with the child, the competent authorities must refrain from branding or labeling children as young criminals, juvenile delinquents, deviants, prostitutes, vagrants or other similar derogatory and attaching to them in any manner any other derogatory names. Competent authorities under this Rule refers to persons having contact with the child in conflict with the law including but not limited to: (a) Law enforcement officers; (b) Barangay officials and employees, including members of the LCPCs; (c) LSWDOs; (d) Prosecutors; (e) PAO lawyers; (f) Judges; (g) Court social workers; (h) Personnel of youth detention homes and youth rehabilitation centers; (i) Personnel of agricultural camps and other training facilities maintained, supervised and controlled by the BUCOR; and All persons having authority to implement communitybased programs for intervention, diversion and rehabilitation.
(j)
RULE 92. ACTS OF DISCRIMINATION As provided in Section 60 of the Act, no discriminatory remarks and practices shall be allowed particularly with respect to the childs class, including but not limited to gender, economic or social status, and physical condition, or ethnic origin.
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RULE 93. ACTS PREJUDICIAL AND DETRIMENTAL TO THE CHILD As provided in Section 61 of the Act, the following and any other similar acts shall be considered prejudicial and detrimental to the psychological, emotional, social, spiritual, moral and physical health and well-being of the child in conflict with the law and therefore, prohibited: (a) Employment of threats of whatever kind and nature; (b) Employment of abusive, coercive and punitive measures such as cursing, beating, stripping, and solitary confinement; (c) Employment of degrading, inhuman and cruel forms of punishment such as shaving the heads, pouring irritating, corrosive or harmful substances over the body of the child in conflict with the law, or forcing him/her to walk around the community wearing signs which embarrass, humiliate, and degrade his/her personality and dignity; and (d) Compelling the child to perform involuntary servitude in any and all forms under any and all instances. RULE 94. OTHER PROHIBITED ACTS IN THE LAW Also prohibited under the Act are the following: (1) Violation of the confidentiality of proceedings involving a child in conflict with the law, as provided in Section 43 of the Act and Part XIII of these Rules, due to acts and omissions such as but not limited to the following: (a) Disclosure to the media of records, including photographs, of children in conflict with the law; (b) Failure to maintain a separate police blotter for cases involving children in conflict with the law; and (c) Failure to adopt a system of coding to conceal material information which will lead to the childs identity.
(2) Commission of prohibited acts under Section 21 of the Act and Rule 28 on Prohibited Acts when in custody of child. (3) Failure to comply with the registration, licensing and accreditation requirements under Rules 76 and 77.
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RULE 95. VIOLATION OF THE PROVISIONS OF THE ACT OR THESE RULES OR REGULATIONS IN GENERAL Any person who violates any provision of the Act, these Rules or any rule or regulation promulgated in accordance with the Act shall, upon conviction for each act or omission, be punished by a fine of not less than Twenty thousand pesos (P20,000.00) but not more than Fifty thousand pesos (P50,000.00) or suffer imprisonment of not less than eight (8) years but not more than ten (10) years, or both such fine and imprisonment at the discretion of the court, unless a higher penalty is provided for in the Revised Penal Code or special laws. If the offender is a public officer or employee, he/she shall, in addition to such fine and/or imprisonment, be held administratively liable and shall suffer the penalty of perpetual absolute disqualification.
PART XV BUDGET AND IMPLEMENTATION
RULE 96. INITIAL FUNDING As provided in Section 63 of the Act, the amount necessary to carry out the initial implementation of the Act shall be charged to the Office of the President. An initial amount of Fifty Million Pesos (P50,000,000.00) for the purpose of setting up the JJWC shall be taken from the proceeds of the Philippine Charity Sweepstakes Office. RULE 97. CONTINUED IMPLEMENTATION The sums as may be necessary for the continued implementation of this Act shall be included in the succeeding General Appropriations Act. RULE 98. FUNDING FOR LCPC PROGRAMS As provided in Section 15 of the Act, one percent (1%) of the internal revenue allotment (IRA) of barangays, municipalities and cities shall be allocated for the strengthening and implementation of the programs of the LCPC. The disbursement of this fund shall be made by the LGU concerned. RULE 99. JUVENILE INTERVENTION PROGRAMS All LGUs shall set aside in their annual budget an amount necessary to implement their respective comprehensive juvenile intervention programs under Section 18 of the Act and Rule 17. This
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amount shall be distinct from the one percent (1%) IRA provided in Section 15 of the Act. RULE 100. EXPENSES FOR THE CARE AND MAINTENANCE OF THE CHILD IN CONFLICT WITH THE LAW Rule 100.a. LGU responsibility to fund the childs care and maintenance In case the childs parents or those persons liable to support him/ her cannot pay all or part of expenses for the care and maintenance of the child under institutional care, said expenses as prescribed by Section 50 of the Act shall be paid as follows: (1) If the offense is committed in a municipality: (a) One-third (1/3) of the expenses to be paid by the municipality where the offense was committed; (b) One-third (1/3) to be paid by the province to which the municipality belongs; and (c) The remaining one-third (1/3) to be borne by the national government. (2) If the offense is committed in a chartered city: (a) Two-thirds (2/3) of the expenses to be paid by the chartered cities; and (b) The remaining one-third (1/3) to be borne by the national government. In case a chartered city cannot pay said expenses, part of the internal revenue allotments applicable to the unpaid portion shall be withheld and applied to the settlement of said obligations. Rule 100.b. If the child is not a resident of the LGU where the offense was committed In the event that the child in conflict with the law is not a resident of the municipality/city where the offense was committed, the court, upon its determination, may require the city/municipality where the child in conflict with the law is a resident to shoulder the cost of his/her care and maintenance. Rule 100.c. Determination of capacity to pay In all cases, capacity of the childs parents or those persons liable to support him/her to pay all or part of the expenses for his/her care
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and maintenance shall be determined by the LSWDO of the city or municipality where said child resides. RULE 101. YOUTH DETENTION HOMES The LGUs shall set aside an amount to build Youth Detention Homes. Youth detention homes may also be established by private and non-government organizations licensed and accredited by the DSWD, in consultation with the JJWC. Existing Youth Detention Homes of LGUs shall be deemed compliance with this Rule and Section 49 of the Act. RULE 102. YOUTH REHABILITATION CENTERS The DSWD shall include in its budget plan the appropriation for the establishment and maintenance of Youth Rehabilitation Centers in each region of the country.
PART XVI DUTIES AND RESPONSIBILITIES OF DEPARTMENTS AND AGENCIES
RULE 103. DEPARTMENT OF JUSTICE In addition to its duties and responsibilities arising from its administrative supervision over of the JJWC under Rule 10.a, the DOJ also has the following duties and responsibilities under the Act and these Rules: (a) Appoint the officers and staff of the JJWC upon a favorable recommendation from the DSWD; (b) Determine the qualifications of and designate one representative from NGO to the JJWC; (c) Conduct regular seminars and trainings to its prosecutors on the proper handling of cases involving children in conflict with the law; (d) Train the prosecutors with the assistance of the DSWD on child-sensitivity and gender-sensitivity; (e) Monitor the compliance by the following agencies and bureaus of their respective duties and responsibilities under the Act and these Rules:
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(1) Public Attorneys Office; (2) Bureau of Corrections; (3) Parole and Probation Administration; and (4) National Bureau of Investigation; (f) Exercise its administrative powers over the above-enumerated agencies to ensure compliance with their duties and responsibilities.
RULE 104. DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT In addition to its duties as the chair of the JJWC under Rule 10.b, the DSWD shall perform the following duties and responsibilities: (a) Establish in all regions mechanisms and systems of receiving custody of children below age of criminal responsibility in cases where parents, guardians or relatives of these children cannot be located. Particularly, the DSWD shall establish and strengthen alternative placements in all regions of the country; (b) Develop and conduct training programs for social workers and other service providers for the effective performance of their duties and responsibilities under the Act and these Rules; (c) Determine the qualifications of and designate one representative from NGO to the JJWC;
(d) Submit reports to the JJWC of relevant data and information regarding the juvenile justice and welfare system, including but not limited to: (1) the number of cases handled involving children in conflict with law; (2) disposition of cases; (3) number of children undergoing intervention, diversion and rehabilitation programs; and (4) evaluation of the intervention, diversion and rehabilitation programs implemented in their respective areas of jurisdiction;
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(e) In consultation with the LGUs, particularly LCPCs, and NGOs formulate rules and guidelines that should be followed during the diversion proceedings to protect the child from coercion, intimidation, harm, abuse, or other actions detrimental to the child; (f) Provide technical assistance to LGUs and NGOs in the development of community-based programs for intervention, diversion and rehabilitation; (g) Establish and maintain Regional Rehabilitation Centers for Youth (RRCYs). The DSWD shall include in its budget plan the appropriation for the establishment of RRCYs in each region of the country; (h) Assist LGUs in providing gender sensitivity training and other appropriate trainings relative to treatment and rehabilitation of children in conflict with the law to persons at the local government level handling these children; (i) In consultation with concerned agencies, develop, review and enhance the standards for Youth Homes to ensure efficiency, effectiveness and accountability in the delivery of quality programs and services for children in conflict with the law who are detained pending trial; Issue rules and regulations for registration, licensing and accreditation of Youth Homes. The DSWD shall also receive and evaluate applications for registration, license and accreditation of Youth Homes managed by LGUs or NGOs and issue the appropriate certificate when qualified;
(j)
(k) Inform the JJWC of the establishment of Youth Homes by accredited private and non-government organizations as provided under Section 49 of the Act and Rule 75 herein; and (l) Develop new social technologies and enhance existing programs and strategies in handling children in conflict with the law.
RULE 105. DEPARTMENT OF EDUCATION The Department of Education shall: (a) Issue the necessary policies and procedures through department orders and circulars to ensure that public and
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private schools perform their role in juvenile intervention and prevention as identified in Rule 20.b. (b) Provide specialized education in Youth Homes, Regional Rehabilitation Centers for Youth and other facilities where children in conflict with the law are placed under custody pending trial and whose sentences are suspended. (c) Integrate in the curriculum programs and activities that serve as intervention to prevent children from being in conflict with the law in consideration of the social, cultural, economic and religious circumstances of the children. (d) Develop intervention programs for implementation by public and private schools consistent with the National Program as provided in Rule 17. (e) Develop policies and programs to ensure that children in conflict with the law by virtue of that fact are not subjected to discrimination in schools, both private and public. (f) Coordinate with TESDA in the formulation of special educational programs and curricula for diversion and rehabilitation of children in conflict with the law. RULE 106. DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT The Department of the Interior and Local Government (DILG) shall: (a) Coordinate with the LGUs, through the Leagues of LGUs, in implementing policies and programs for juvenile intervention, diversion and rehabilitation; (b) Monitor the compliance of all LGUs as well as the PNP and the Bureau of Jail Management and Penology in the performance of their duties and responsibilities under the Act and report the results of its monitoring and evaluation to the JJWC; (c) Create a system of assisting LGUs in the establishment and strengthening of LCPCs; (d) Oversee the organization and functionality of the LCPCs; (e) Report to and update the JJWC the following information:
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(1) LGUs with existing LCPCs, no LCPCs and LCPCs under organization; (2) Budget provided by LGUs for their LCPCs, particularly the percentage of the IRA allocated by each LGU for the strengthening and implementation of the programs of the LCPC; and (3) LGUs with and without Youth Detention Homes; (4) Allocation of the budgetary requirements under the Act for the development of LCPCs; and (5) The appointment of the LSWDOs handling children in conflict with the law. Where there are LGUs with no LCPCs or with nonfunctional LCPCs, where LGUs do not disburse the proper percentage of IRA for the LCPCs or where there are LGUs without Youth Detention Homes, the DILG shall report to the JJWC the steps it has taken and what additional recommendations it proposes to address these cases. (f) Establish a system of uniform reporting to the National Government, through the JJWC, by LGUs of: (1) The results of the assessments of the Local Intervention Programs as required under Section 18 of the Act (Rule 18); (2) Children in conflict with law who are taken into the custody of law enforcement officers; and (3) Other relevant data, including the information enumerated in the preceding paragraph, for the monitoring of the enforcement of the Act at the local level; (g) Relay to all LGUs the problems identified by the JJWC in the implementation of the Act at the local government level and to recommend to LGUs proposed measures to address the problems. RULE 107. COUNCIL FOR THE WELFARE OF CHILDREN Consistent with its mandate under Executive Order No. 233 (1987) [E.O. 233], the Council for the Welfare of Children shall: (1) Exercise its powers and responsibilities under E.O. 233 consistent with the Act and to further the proper admin-
Rule 108
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istration of the Juvenile Justice and Welfare System and the effective implementation of the National Juvenile Intervention Program; (2) Integrate the objectives of the Act in the formulation of its integrated national policy and long-range programs under Section 4 of E.O. 233 and in the preparation of its policies and programs for the development of children; (3) Assist the JJWC in the: (a) Coordination of efforts of both government and nongovernment organizations in juvenile intervention and delinquency prevention; (b) Advocacy of greater efforts to support child welfare and development; and (c) Monitor the implementation of the Act in relation to other laws related to children.
RULE 108. COMMISSION ON HUMAN RIGHTS The Commission on Human Rights shall, consistent with its powers and responsibilities under Article XIII of the 1987 Constitution: (a) Strengthen the monitoring of government compliance of all treaty obligations, including the timely and regular submission of reports before the treaty bodies, as well as the implementation and dissemination of recommendations and conclusions by government agencies as well as NGOs and civil society; (b) Monitor the Philippine governments compliance to the Convention on the Rights of the Child and ensure that government actions and policies, and the domestic laws are consistent with the Convention on the Rights of the Child; (c) Guide and advise the JJWC in the implementation of the Act using the rights-based approach, particularly in: (1) Collecting relevant information and conducting research and studies on matters relating to juvenile justice and welfare; and (2) The conduct of trainings to personnel involved in the administration of the juvenile justice and welfare system;
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Rule 109
(d) Conduct independent investigations to monitor violations of childrens rights in accordance with the Act, which include public hearings on the alleged human rights violations committed against children in conflict with the law; and (e) Exercise visitorial powers over jails, prisons, detention facilities and other facilities that have custody over children who are deprived of liberty; and Recommend effective measures to the JJWC to promote and protect the rights of the child in conflict with the law.
(f)
RULE 109. NATIONAL YOUTH COMMISSION Consistent with its mandate under RA 8044, the National Youth Commission shall: (a) Include in the formulation and initiation of national policies on youth the prevention of juvenile delinquency and the concerns of children in conflict with the law; (b) Utilize its established consultative mechanism under Section 10(c) of RA 8044 in creating a continuing dialogue between the government and the youth sector on the proper planning and evaluation of policies, programs and projects affecting the children, particularly those at risk and in conflict with the law; (c) Assist and coordinate with government and non-government organizations or institutions in the implementation of the Act, these Rules and all other programs and projects on juvenile intervention and delinquency prevention; (d) Assist the JJWC in collecting relevant information and conducting continuing research and support evaluations and studies on matters relating to juvenile justice and welfare, as provided in Section 9(g) of the Act in relation to Section 10(f) of RA 8044, and report the information and results gathered to the JJWC; (e) Develop youth programs and projects as well as promotion and fund-raising campaigns, as provided in Section 10(j) and (k) of RA 8044 consistent with and in furtherance of the National Juvenile Intervention Program; Monitor and report acts of discrimination on children in conflict with the law and other violations of the rights of these children;
(f)
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(g) Ensure that the Sangguniang Kabataan performs its functions prescribed in the Act and in these Rules; and (h) Include in its annual report to the President and to Congress under Section 10(p) of RA 8044 an appraisal of the performance of the Sangguniang Kabataan of their duties under the Act. RULE 110. COORDINATING AGENCIES Rule 110.a. Bureau of Corrections The Bureau of Corrections shall: (1) Establish, maintain, supervise and manage agricultural camps and other training facilities in coordination with the DSWD where children in conflict in the law may be committed to serve sentence as provided in Section 51 of the Act; and (2) Submit to the JJWC within ninety (90) days from the effectivity of the Act an inventory of all children in conflict with the law under its custody. Rule 110.b. Bureau of Jail Management and Penology To ensure the effective implementation of the Act, the Bureau of Jail Management and Penology shall perform the following functions: (1) Ensure that no children are admitted or detained in municipal/district or city/district jails under its management; (2) Immediately refer to the DSWD or the LSWDO children who are found to be in the custody of municipal/district or city/district jails; and (3) Submit to the JJWC within ninety (90) days from the effectivity of the Act an inventory of all children in conflict with the law under its custody. Rule 110.c. National Bureau of Investigation To assist in the effective implementation of the Juvenile Justice and Welfare System, the National Bureau of Investigation shall: (1) When in the course of undertaking an investigation finds that a child is involved in the commission of an offense, ensure that the child shall be treated in accordance with
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Rule 110
the provisions of the Act and these Rules even if the crime or offense was committed with adult offenders; (2) Ensure that its agents shall observe the proper procedure prescribed by the Act and these Rules upon contact with a child in conflict with the law; and (3) As the national clearing house of criminal data and other information for the benefit and use of all prosecution and law enforcement entities in the Philippines, ensure that no criminal conviction or record is entered in its database if such conviction or record refers to the commission of an offense of person as a child in conflict with the law. Rule 110.d. Parole and Probation Administration The Parole and Probation Administration shall develop individualized probation programs appropriate for the correction and rehabilitation of children in conflict with the law consistent with the objective of rehabilitation and reintegration provided in the Act. Rule 110.e. Philippine National Police The Philippine National Police (PNP) shall: (1) Develop a manual for the efficient administration of the Juvenile Justice and Welfare System by law enforcement officers; (2) Conduct special training to its personnel in the management of children in conflict with the law and the proper observance of procedures prescribed by the Act; (3) Ensure that all police stations in the country have: (a) An area where the children taken into custody are kept separate from adult offenders; (b) A separate logbook of all children taken into custody; (c) Personnel who are trained to specially deal with children in conflict with the law; and (d) Have a list of all the persons/agencies that may take custody of the child in conflict with the law in the event the child has no parent/guardian/relative to assume such custody;
Rule 110
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(4) Establish a uniform system of: (a) Reporting of children in conflict with law who are taken into the custody of law enforcement officers; and (b) Maintaining the confidentiality of the records of children in conflict with the law and protecting the identity of these children; (5) Compile statistical data for the accurate assessment of the situation involving children in conflict with the law and report the same to the JJWC through the DILG; (6) Establish a system of evaluating the efficiency and effectiveness of all police units in the country in handling children in conflict with the law; (7) Ensure that all police units in the country establish and maintain close coordination and cooperation with the LCPCs and the LSWDOs in their areas of jurisdiction; and (8) Submit to the JJWC through the DILG within ninety (90) days from the effectivity of the Act an inventory of all children in conflict with the law under its custody. Rule 110.f. Public Attorneys Office The Public Attorneys Office shall: (1) Provide legal assistance to children in conflict with the law; (2) Give special training to its lawyers in: (a) The management of cases involving children in conflict with the law; and (b) Using child-sensitive approaches in handling children in conflict with the law; and (3) Establish a monitoring system on statistics involving children in conflict with the law consistent with the National Juvenile Intervention Program. Rule 110.g. Technical Education and Skills Development Authority The Technical Education and Skills Development Authority, consistent with its mandate under Republic Act No. 7796, shall:
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Rule 111
(1) Integrate in the formulation of the National Technical Education and Skills Development Plan the development of programs for children in conflict with the law; (2) Fund programs and projects for technical education and skills development of children; and (3) Assist LGUs in the conduct of skills development programs for children in conflict with the law. RULE 111. LOCAL GOVERNMENT UNITS The duties and responsibilities of each LGU in the juvenile justice and welfare system include the following: (a) Develop and implement a Local Intervention Program in accordance with Section 18 of the Act and Rule 17; (b) Encourage the participation of all sectors concerned, particularly the child-focused institutions, NGOs, peoples organizations, educational institutions and government agencies involved in delinquency prevention to participate in the planning process and implementation of juvenile intervention programs; (c) Set aside from its annual budget the amount necessary to implement the Local Intervention Program;
(d) Review and assess annually, in coordination with the LCPC, the implementation of the Local Intervention Program. Each LGU shall then submit its assessment to the JJWC through the DILG; (e) Ensure that no children are admitted or detained in provincial jails; (f) Establish and strengthen LCPCs in accordance with Part III of these Rules;
(g) Set aside and disburse one percent (1%) of the IRA of cities, municipalities and barangays for LCPCs; (h) Pay a portion of the expenses for the care and maintenance of the child in conflict with the law in accordance with Rule 100.a., in case the parents of the child or those persons liable to support the child cannot pay all or part of said expenses;
Rule 112
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(i) (j)
Institute community-based programs for intervention, diversion and rehabilitation; Appoint a duly licensed social worker as its LSWDO, who shall be tasked to assist children in conflict with the law. In provinces, cities or municipalities where there are no LSWDOs, the local chief executive shall immediately appoint a duly licensed social worker as its local social welfare development officer who shall perform the above-mentioned responsibilities. Should the appointment of an LSWDO result in the excess in the budget ceiling for Personal Services, the same shall be justified in accordance with Civil Service policies;
(k) Conduct an inventory and mapping of local resources for children in conflict with the law; and (l) Establish local Youth Homes for children in conflict with the law within five (5) years from the effectivity of the Act.
RULE 112. SANGGUNIANG KABATAAN As provided by Section 17 of the Act, the Sangguniang Kabataan (SK) shall coordinate with the LCPC in the formulation and implementation of juvenile intervention and diversion programs in the community. In addition, the SK shall, consistent with its mandate under the Local Government Code: (a) Promulgate resolutions necessary to carry out the objectives of the Act in the barangay; (b) Initiate programs that complement the intervention and diversion programs initiated by the LGUs through the LCPCs as well as those implemented by national agencies; (c) Create such bodies and committees as it may deem necessary to effectively carry out its programs and activities for juvenile intervention and diversion;
(d) Include in its annual and end-of-term reports to the Sangguniang Barangay on their projects and activities that achieve the objectives of the Act and these Rules; and
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(e)
Consult and coordinate with all youth organizations in the barangay for the formulation of policies and implementation of programs on juvenile intervention and diversion.
RULE 113. CHILD RIGHTS CENTER OF THE COMMISSION ON HUMAN RIGHTS As provided in Section 11 of the Act, the existing Child Rights Center (CRC) of the CHR shall ensure that the status, rights and interests of children are upheld in accordance with the Constitution and international instruments on human rights. In particular, the CRC shall: (a) Investigate human rights violations against children; (b) Initiate legal action for and in their behalf; (c) Conduct jail and institution visitation; (d) Conduct advocacy activities; (e) Implement core programs on children prescribed by the CHR; (f) Conduct capacity-building activities to ensure the recognition and exercise of childrens rights; and
(g) Participate in the practice of inter-agency cooperation that will widen the system and enhance the resources available to the child promotion and protection network at the regional level.
PART XVII LOCAL SOCIAL WELFARE AND DEVELOPMENT OFFICER
RULE 114. APPOINTMENT OF LOCAL SOCIAL WELFARE AND DEVELOPMENT OFFICER In accordance Section 16 of the Act, all LGUs, particularly at the provincial, city and municipal level, shall appoint a duly licensed social worker as its local social welfare and development officer (LSWDO), who shall be tasked to assist children in conflict with the law. RULE 115. DUTIES AND RESPONSIBILITIES Among the duties and responsibilities of the LSWDO under the Act and these Rules are:
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(a) Determine the appropriate intervention and prevention programs for the child who is exempt from criminal liability, as provided in Part VII of these Rules. (b) Develop, with the assistance of the LCPC, the appropriate diversion programs as provided under Section 23(b) of the Act; (c) Immediately proceed to and be present in the initial investigation of the child in conflict with the law, after receiving notification from the law enforcement officer of the initial contact with the child, as provided in Section 22 of the Act and Rule 23.
(d) Actively assist in conducting the initial investigation, as provided in Rule 23. (e) Witness the signing of statement by the child and affix signature to the said statement, as provided in Rule 23.d. (f) Receive physical custody of the child not later than eight (8) hours after apprehension except in cases where the child is found to be below the age of criminal responsibility, as provided under Rules 22 and 25.
(g) Encourage the parent or guardian of the child to request for temporary custody of the child to the DSWD or licensed and accredited NGOs in cases where the child is fifteen (15) years old and below and the safety of the child is in danger in view of the alleged commission of the offense. In the event the parent or guardian does not agree to the request for temporary custody of the child, the LSWDO shall carefully review the case of the child and file a petition for involuntary commitment when sanctioned by law, in accordance with P.D. 603 and the SC Rule on Commitment of Children. (h) In the event a child whose custody is turned over by the law enforcement officer is fifteen (15) years old or below, the LSWDO shall take all measures to release the child to the parents or guardians, or to any of the persons or organizations provided in Rule 31.b, and proceed with the development of appropriate programs as provided under Part VII of these Rules. (i) Explain to the child and the childs parents/guardians the consequences of the childs act with a view towards
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Rule 115
counseling and rehabilitation, diversion from the criminal justice system, and reparation, if appropriate as required by Section 21(i) of the Act and Rule 25. (j) In cases where the child is above fifteen (15) but below eighteen (18) years of age, after the statement of the child is taken, conduct an assessment if the child acted with discernment as part of the initial investigation, as provided in Rule 23.e. in accordance with Rule 34. After conducting an assessment, the LSWDO shall make the necessary recommendation to the law enforcement officer on the basis of said assessment.
(k) Conduct diversion proceedings if the child is above 15 but below 18 years of age, acted with discernment and allegedly committed an offense that is a victimless crime with an imposable penalty of not more than six (6) years of imprisonment, as provided in Rule 24.2 and in accordance with the procedures under Rules 45, 47, 48 and 49. (l) Assist the law enforcement officer in determining the age of the child, when such assistance is requested.
(m) As provided in Rule 32, file a petition for involuntary commitment if the child in conflict with the law is found by the LSWDO to be abandoned, neglected or abused by his/her parents; or the parents do not comply with the intervention and prevention programs as determined under Part VII of these Rules. (n) Endeavor to be continuously updated with latest trends in conducting psychosocial analyses of children and research on factors affecting the behavior of children in conflict with the law. (o) As provided in Rule 38, monitor the compliance of the child and the parents, guardian or persons having custody of the child, who are undergoing the intervention and prevention programs. To determine compliance with the program, the LSWDO shall also conduct periodic visits at the home of the child or at the place where the custody of the child is given; and meet with the authorities of the school that the child attends.
(p) Assist the law enforcement officer when the diversion is conducted at the law enforcement level, as provided in Section 23(a) of the Act and Rule 44.b.
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(q) Develop with the LCPCs community-based programs for diversion as provided under Rule 50.b. (r) Supervise the conduct of the diversion program of the child as provided under Rule 51. In the event there is failure to comply with the terms and conditions of the contract of diversion, the LSWDO shall certify such fact. (s) As provided in Rule 51.c., in cases where the offense committed is a victimless crime, the LSWDO that conducted the diversion proceedings, upon a finding of failure to comply, may refer the case of the child to the prosecutor as if there is no consent to the diversion or that diversion is not appropriate and desirable for the child as provided in Section 29 of the Act. (t) Supervise and guide the child in conflict with the law who is participating in community-based rehabilitation programs, in coordination with the childs parents or guardian, as provided in Rule 73.c. Based on the progress of the youth in the community, a final report will be forwarded by the local social welfare and development officer to the court for final disposition of the case. (u) Prepare the Social Case Study Report of the child for submission to the rehabilitation or training facility, as provided in Rule 74.c. (v) Develop and provide after-care support services in accordance with the criteria set by the JJWC as provided under Rule 80. (w) Provide appropriate counseling and treatment programs for children exempt from prosecution under Rule 89.
PART XVIII FINAL PROVISIONS
RULE 116. TRANSITORY PROVISIONS The implementation of the Transitory Provisions of the Act shall be governed by the Guidelines To Implement the Transitory Provisions of RA 9344 dated 11 July 2006 issued by the JJWC. RULE 117. REPEALING CLAUSE All other rules and regulations or parts thereof, inconsistent with the Act and the foregoing rules and regulations are repealed, amended or modified accordingly.
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RULE 118. SEPARABILITY CLAUSE If any of the provisions of these Rules is declared invalid or unconstitutional, the validity of the remaining provisions hereof shall remain in full force and effect. RULE 119. EFFECTIVITY These Rules shall take effect fifteen (15) days from the date of its complete publication in a national newspaper of general circulation. Manila, Philippines, 15 August 2006.
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Appendix A THE FAMILY CODE OF THE PHILIPPINES

(as amended)
[Executive Order No. 209]

I, CORAZON C. AQUINO, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order and promulgate the Family Code of the Philippines, as follows:
TITLE I MARRIAGE
Chapter 1. Requisites of Marriage Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (52a) Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. (53a) Art. 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer;
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Arts. 4-7
(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a) Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2). A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n) Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a) Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. (55a) Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the courts jurisdiction; (2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and
Arts. 8-11
THE FAMILY CODE OF THE PHILIPPINES [Executive Order No. 209]
445
registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officers church or religious sect; (3) Any ship captain or airplane chief only in the cases mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or (5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a) Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted at the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. (57a) Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a) Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a) Art. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: (1) Full name of the contracting party; (2) Place of birth;
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Art. 12
(3) Age and date of birth; (4) Civil status;
(5) If previously married, how, when and where the previous marriage was dissolved or annulled; (6) Present residence and citizenship; (7) Degree of relationship of the contracting parties; (8) Full name, residence and citizenship of the father; (9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years. The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. (59a) Art. 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. The certificates or certified copies of the documents required by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity. If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original, or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred
Arts. 13-15
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as witnesses, or, in their default, persons of good reputation in the province or the locality. The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. (60a) Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. (61a) Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. (61a) Art. 15. Any contracting party between the ages of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage
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Arts. 16-19
license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. (62a) Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counsellor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counselling. Failure to attach said certificate of marriage counselling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage. Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counselling referred to in the preceding paragraph. (n) Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (63a) Art. 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interested party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuance of the order. (64a) Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee
Arts. 20-22
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or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit, or by their oath before the local civil registrar. (65a) Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued. (65a) Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (66a) Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state: (1) The full name, sex and age of each contracting party; (2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage; (4) That the proper marriage license has been issued according to law, except in marriages provided for in Chapter 2 of this Title; (5) That either or both of the contracting parties have secured the parental consent in appropriate cases; (6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and (7) That the parties have entered into a marriage settlement, if any, attaching a copy thereof. (67a)
450
Arts. 23-27
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in a place other than those mentioned in Article 8. (68a) Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. (n) Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of applicants, the date on which the marriage license was issued, and such other data as may be necessary. (n) Art. 26. All marriages solemnized outside the Philipppines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. (As amended by E.O. 227) Chapter 2. Marriages Exempt from the License Requirement Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (72a)
Arts. 28-34
451
Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without the necessity of a marriage license. (72a) Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of a legal impediment to the marriage. (72a) Art. 30. The original of the affidavit required in the last preceding article, together with a legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. (73a) Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a) Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (74a) Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of a marriage license, provided they are solemnized in accordance with their customs, rites or practices. (78a) Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing
452
Arts. 35-38
officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. (76a) Chapter 3. Void and Voidable Marriages Art. 35. The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without a license, except those covered by the preceding Chapter; (4) Those bigamous or polygamous marriages not falling under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; and 53. (6) Those subsequent marriages that are void under Article
Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by E.O. 227) Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half blood. (81a) Art. 38. The following marriages shall be void from the beginning for reasons of public policy:
Arts. 39-41
453
(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law; (4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between the adopted children of the same adopter; and (9) Between parties where one, with the intention to marry the other, killed that other persons spouse or his or her own spouse. (82a) Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by R.A. 8533, approved Feb. 23, 1998) Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n) Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)
454
Arts. 42-44
Art. 42. The subsequent marriage referred to in the preceding article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n) Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and their custody and support in case of dispute shall be decided by the court in a proper proceeding; (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n)
Arts. 45-46
455
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; (2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; (4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife; (5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) That either party was afflicted with a sexually transmissible disease found to be serious and appears to be incurable. (85a) Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; (2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; (3) Concealment of a sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or (4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.
456
Arts. 47-49
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (86a) Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (1) For causes mentioned in number 1 of Article 45, by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one; or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one; (2) For causes mentioned in number 2 of Article 45, by the sane spouse who had no knowledge of the others insanity; or by any relative guardian or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval or after regaining sanity; (3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud; (4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; (5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a) Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. (88a) Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided
Arts. 50-53
457
for in Title IX. It shall also provide for appropriate visitation rights of the other parent. (n) Art. 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n) Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the childrens presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) Art. 53. Either of the former spouses may marry again after complying with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.
458
Arts. 54-56
Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.
TITLE II LEGAL SEPARATION

Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; or (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner;
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term child shall include a child by nature or by adoption. (97a) Art. 56. The petition for legal separation shall be denied on any of the following grounds:
Arts. 57-61
459
(1) Where the aggrieved party has condoned the offense or act complained of; (2) Where the aggrieved party has consented to the commission of the offense or act complained of; (3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; (4) Where both parties have given ground for legal separation; (5) Where there is collusion between the parties to obtain the decree of legal separation; or (6) Where the action is barred by prescription. (100a)
Art. 57. An action for legal separation shall be filed within five years from the time of the occurence of the cause. (102a) Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103) Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n) Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (101a) Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. (104a)
460
Arts. 62-65
Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. (105a) Art. 63. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; (2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2); (3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a) Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation has become final. (107a) Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. (n)
Arts. 66-68
461
Art. 66. The reconciliation referred to in the preceding Article shall have the following consequences: (1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and (2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The courts order containing the foregoing shall be recorded in the proper civil registries. (108a) Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify: (1) The properties to be contributed anew to the restored regime; (2) Those to be retained as separated properties of each spouse; and (3) The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measures to protect the interest of creditors and such order shall be recorded in the proper registries of properties. The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtorspouse has sufficient separate properties to satisfy the creditors claim. (195a, 108a)
TITLE III RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (109a)
462
Arts. 69-73
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a) Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from their separate properties. (111a) Art. 71. The management of the household shall be the right and duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. (115a) Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (116a) Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious and moral grounds. In case of disagreement, the court shall decide whether or not: (1) The objection is proper, and
(2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (117a)
Arts. 74-79
463
TITLE IV PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

Chapter 1. General Provisions Art. 74. The property relations between husband and wife shall be governed in the following order: (1) By marriage settlements executed before the marriage; (2) By the provisions of this Code; and (3) By the local customs. (118)
Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern. (119a) Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. (121) Art. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of property. (122a) Art. 78. A minor who according to law may contract marriage may also execute his or her marriage settlements, but they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of this Code. (120a) Art. 79. For the validity of any marriage settlements executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto. (123a)
464
Arts. 80-85
Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: (1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. (124a) Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriage shall be valid. (125a) Chapter 2. Donations by Reason of Marriage Art. 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. (126) Art. 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles. (127a) Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on the testamentary succession and the formalities of wills. (130a) Art. 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encum-
Arts. 86-89
465
brance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess. (131a) Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases: (1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81; (2) When the marriage takes place without the consent of the parents or guardian, as required by law; (3) When the marriage is annulled, and the donee acted in bad faith; (4) Upon legal separation, the donee being the guilty spouse; (5) If it is with a resolutory condition and the condition is complied with; (6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a) Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (133a) Chapter 3. System of Absolute Community Section 1. General Provisions Art. 88. The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (145a) Art. 89. No waiver of rights, interests, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property.
466
Arts. 90-94
When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (146a) Art. 90. The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter. (n) Section 2. What Constitutes Community Property Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (197a) Art. 92. The following shall be excluded from the community property: (1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property; (2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property; (3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property. (201a) Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom. (160a) Section 3. Charges Upon and Obligations of the Absolute Community Art. 94. The absolute community of property shall be liable for: (1) The support of the spouses, their common children, and legitimate children of either spouse; however, the support of illegiti-
Art. 94
467
mate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited; (4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property; (5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; (6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement; (7) Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; (9) Antenuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and (10) Expenses of litigation between the spouses unless the suit is found to be groundless. If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a, 162a, 163a, 202a-205a)
468
Arts. 95-99
Art. 95. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property. (164a) Section 4. Ownership, Administration, Enjoyment and Disposition of the Community Property Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance without the authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (206a) Art. 97. Either spouse may dispose by will of his or her interest in the community property. (n) Art. 98. Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress. (n) Section 5. Dissolution of Absolute Community Regime Art. 99. The absolute community terminates: (1) Upon the death of either spouse;
Arts. 100-102
469
(2) When there is a decree of legal separation; (3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a) Art. 100. The separation in fact between husband and wife shall not affect the regime of absolute community except that: (1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; (3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latters share. (178a) Art. 101. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (178a) Section 6. Liquidation of the Absolute Community Assets and Liabilities Art. 102. Upon dissolution of the absolute community regime, the following procedure shall apply:
470
Art. 103
(1) An inventory shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse. (2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94. (3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share as provided in this Code. For purposes of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution. (5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51. (6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children. (n) Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within one year from the death of the deceased spouse. If upon the lapse of the said period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void.
Arts. 104-108
471
Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n) Art. 104. Whenever the liquidation of the community properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each community shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which community the existing properties belong, the same shall be divided between or among the different communities in proportion to the capital and duration of each. (189a) Chapter 4. Conjugal Partnership of Gains Section 1. General Provisions Art. 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership of gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application. The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256. (n) Art. 106. Under the regime of conjugal partnership of gains, the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements. (142a) Art. 107. The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains. (n) Art. 108. The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements. (147a)
472
Arts. 109-114
Section 2. Exclusive Property of Each Spouse Art. 109. The following shall be the exclusive property of each spouse: (1) That which is brought to the marriage as his or her own; (2) That which each acquires during the marriage by gratuitous title; (3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and (4) That which is purchased with exclusive money of the wife or of the husband. (148a) Art. 110. The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties. Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place where the property is located. (137a, 168a, 169a) Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same. (n) Art. 112. The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. (n) Art. 113. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouse as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper. (150a) Art. 114. If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the donee-spouse, whenever they have been advanced by the conjugal partnership of gains. (151a)
Arts. 115-118
473
Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case. (n) Section 3. Conjugal Partnership Property Art. 116. All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved. (160a) Art. 117. The following are conjugal partnership properties:
(1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses; (2) Those obtained from the labor, industry, work or profession of either or both of the spouses; (3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse; (4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found; (5) Those acquired through occupation such as fishing or hunting; (6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and (7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loser-spouse. (153a, 154, 155, 159) Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership. (n)
474
Arts. 119-121
Art. 119. Whenever an amount or credit payable within a period of time belong to one of the spouses, the sums which may be collected during the marriage in partial payments or by installments on the principal shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership. (156a, 157a) Art. 120. The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership or to the original owner-spouse, subject to the following rules: When the cost of the improvement made by the conjugal partnership and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the owner-spouse at the time of the improvement; otherwise, said property shall be retained in ownership by the owner-spouse, likewise subject to reimbursement of the cost of the improvement. In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the conjugal partnership. (158a) Section 4. Charges Upon and Obligations of the Conjugal Partnership Art. 121. The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited;
Arts. 122-123
475
(4) All taxes, liens, charges and expenses, including major or minor repairs upon the conjugal partnership property; (5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse; (6) Expenses to enable their spouse to commence or complete a professional, vocational, or other activity for self-improvement; (7) Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; and (9) Expenses of litigation between the spouses unless the suit is found to be groundless. If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a) Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership except insofar as they redounded to the benefit of the family. Neither shall the fines and indemnities imposed upon them be charged to the partnership. However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purposes above-mentioned. (163a) Art. 123. Whatever may be lost during the marriage in any game of chance, or in betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the conjugal partnership but any win-
476
Arts. 124-126
nings therefrom shall form part of the conjugal partnership property. (164a) Section 5. Administration of the Conjugal Partnership Property Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (165a) Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. (174a) Section 6. Dissolution of Conjugal Partnership Regime Art. 126. The conjugal partnership terminates: (1) Upon the death of either spouse; (2) When there is a decree of legal separation; (3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a)
Art. 127-129
477
Art. 127. The separation in fact between husband and wife shall not affect the regime of conjugal partnership, except that: (1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; (3) In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon petition in a summary proceding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latters share. (178a) Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (167a, 191a) Section 7. Liquidation of the Conjugal Partnership Assets and Liabilities Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply: (1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse.
478
Art. 130
(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof. (3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. (4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121. (5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any. (7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code. (8) The presumptive legitimes of the common children shall be delivered upon partition in accordance with Article 51. (9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children. (181a, 182a, 183a, 184a, 185a) Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either
Arts. 131-134
479
judicially or extra-judicially within one year from the death of the deceased spouse. If upon the lapse of the six month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n) Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between the different partnerships in proportion to the capital and duration of each. (189a) Art. 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in this Chapter. (187a) Art. 133. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. (188a) Chapter 5. Separation of Property of the Spouses and Administration of Common Property by One Spouse During the Marriage Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause. (190a)
480
Arts. 135-137
Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: (1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; (2) That the spouse of the petitioner has been judicially declared an absentee; (3) That loss of parental authority of the spouse of petitioner has been decreed by the court; (4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101; (5) That the spouse granted the power of administration in the marriage settlements has abused that power; and (6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable. In the cases provided for in Numbers (1), (2), and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. (191a) Art. 136. The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest. (191a) Art. 137. Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code. During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. (192a)
Arts. 138-142
481
Art. 138. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. (191a) Art. 139. The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property. (193a) Art. 140. The separation of property shall not prejudice the rights previously acquired by creditors. (194a) Art. 141. The spouses may, in the same proceedings where separation of property was decreed, file a motion in court for a decree reviving the property regime that existed between them before the separation of property in any of the following instances: (1) When the civil interdiction terminates; (2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the power of administration in the marriage settlements will not again abuse that power, authorizes the resumption of said administration; (4) When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other; (5) When parental authority is judicially restored to the spouse previously deprived thereof; (6) When the spouses who have been separated in fact for at least one year, reconcile and resume common life; or (7) When after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property regime. No voluntary separation of property may thereafter be granted. The revival of the former property regime shall be governed by Article 67. (195a) Art. 142. The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse:
482
Arts. 143-147
(1) When one spouse becomes the guardian of the other; (2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or (4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case. If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator. (n) Chapter 6. Regime of Separation of Property Art. 143. Should the future spouses agree in the marriage settlements that their property relations during marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be of suppletory application. (212a) Art. 144. Separation of property may refer to present or future property or both. It may be total or partial. In the latter case, the property not agreed upon as separate shall pertain to the absolute community. (213a) Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. (214a) Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties. The liability of the spouses to creditors for family expenses shall, however, be solidary. (215a) Chapter 7. Property Regime of Unions Without Marriage Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and
Art. 148
483
wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the formers efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a) Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. (144a)
484
Arts. 149-154
TITLE V THE FAMILY

Chapter 1. The Family as an Institution Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. (216a, 218a) Art. 150. Family relations include those: (1) Between husband and wife; (2) Between parents and children; (3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or halfblood. (217a) Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code. (222a) Chapter 2. The Family Home Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a) Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a) Art. 154. The beneficiaries of a family home are:
Arts. 155-157
485
(1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. (226a) Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For non-payment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (243a) Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latters consent. It may also be constituted by an unmarried head of a family on his or her own property. Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a) Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of Three hundred thousand pesos in urban areas, and Two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law. In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation. For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a)
486
Arts. 158-162
Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latters spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a) Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (238a) Art. 160. When a creditor whose claim is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a) Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. (n) Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. (n)
Arts. 163-166
487
TITLE VI PATERNITY AND FILIATION

Chapter 1. Legitimate Children Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n) Art. 164. Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (255a, 258a) Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n) Art. 166. Legitimacy of a child may be impugned only on the following grounds: (1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or (c) serious illness of the husband, which absolutely prevented sexual intercourse. (2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or (3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (255a)
488
Arts. 167-171
Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a) Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (259a) Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. (261a) Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. If the husband or, in his default all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. (263a) Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases: (1) If the husband should die before the expiration of the period fixed for bringing his action;
Arts. 172-174
489
(2) If he should die after the filing of the complaint, without having desisted therefrom; or (3) If the child was born after the death of the husband. (262a) Chapter 2. Proof of Filiation Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a) Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. (268a) Art. 174. Legitimate children shall have the right:
(1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; (2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and (3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code. (264a)
490
Arts. 175-182
Chapter 3. Illegitimate Children Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (289a) Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (287a) Chapter 4. Legitimated Children Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. (269a) Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation. (270a) Art. 179. Legitimated children shall enjoy the same rights as legitimate children. (272a) Art. 180. The effects of legitimation shall retroact to the time of the childs birth. (273a) Art. 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants. (274) Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights, within five years from the time their cause of action accrues. (275a)
Arts. 183-185
491
TITLE VII ADOPTION

Art. 183. A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family. Only minors may be adopted, except in the cases when the adoption of a person of majority age is allowed in this Title. In addition, the adopter must be at least sixteen years older than the person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted. (27a, EO 91 and PD 603) Art. 184. The following persons may not adopt:
(1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation; (2) Any person who has been convicted of a crime involving moral turpitude; (3) An alien, except: (a) A former Filipino citizen who seeks to adopt a relative by consanguinity; (b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or (c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoption as may be provided by law. (28a, EO 91 and PD 603) Art. 185. Husband and wife must jointly adopt, except in the following cases: or (1) When one spouse seeks to adopt his own illegitimate child;
(2) When one spouse seeks to adopt the legitimate child of the other. (29a, EO 91 and PD 603)
492
Arts. 186-189
Art. 186. In case husband and wife jointly adopt or one spouse adopts legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this Code. (29a, EO 91 and PD 603) Art. 187. The following may not be adopted:
(1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to the adoption, said person had been consistently considered and treated by the adopter as his or her own child during minority. (2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and (3) A person who has already been adopted unless such adoption has been previously revoked or rescinded. (30a, EO 91 and PD 603) Art. 188. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if ten years of age or over; (2) The parents by nature of the child, the legal guardian, or the proper government instrumentality; (3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents; (4) The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latters spouse, if any; and (5) The spouse, if any, of the person adopting or to be adopted. (31a, EO 91 and PD 603) Art. 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted,
Arts. 190-191
493
parental authority over the adopted shall be exercised jointly by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives. (39[1]a, [2]a, [3]a, PD 603) Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; (2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters; (4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters; (5) When only the adopters survive, they shall inherit the entire estate; and (6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. (39[4]a, PD 603) Art. 191. If the adopted is a minor or otherwise incapacitated, the adoption may be judicially rescinded upon petition of any person authorized by the court or proper government instrumentality acting on his behalf, on the same grounds prescribed for loss or suspension of parental authority. If the adopted is at least eighteen years of age, he may petition for judicial rescission of the adoption on the same grounds prescribed for disinheriting an ascendant. (40a, PD 603)
494
Arts. 192-195
Art. 192. The adopters may petition the court for the judicial rescission of the adoption in any of the following cases: (1) If the adopted has committed any act constituting a ground for disinheriting a descendant; or (2) When the adopted has abandoned the home of the adopters during minority for at least one year, or, by some other acts, has definitely repudiated the adoption. (41a, PD 603) Art. 193. If the adopted minor has not reached the age of majority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate the parental authority of the parents by nature, unless the latter are disqualified or incapacitated, in which case the court shall appoint a guardian over the person and property of the minor. If the adopted person is physically or mentally handicapped, the court shall appoint in the same proceeding a guardian over his person or property or both. Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child. The adopted shall likewise lose the right to use the surnames of the adopters and shall resume his surname prior to the adoption. The court shall accordingly order the amendment of the records in the proper registries. (42a, PD 603)
TITLE VIII SUPPORT

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. (290a) Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article:
Arts. 196-199
495
(1) The spouses; (2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) Legitimate brothers and sisters, whether of the full or half-blood. (291a) Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194 except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimants fault or negligence. (291a) Art. 197. For the support of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. (n) Art. 198. During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order. (292a) Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1) The spouse; (2) The descendants in the nearest degree;
496
Arts. 200-204
(3) The ascendants in the nearest degree; and (4) The brothers and sisters. (294a)
Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. (295a) Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. (296a) Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. (297a) Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. Support pendente lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of each corresponding month. When the recipient dies, his heirs shall not be obliged to return what he has received in advance. (298a) Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has
Arts. 205-210
497
a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. (299a) Art. 205. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or execution. (302a) Art. 206. When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without any intention of being reimbursed. (2164a) Art. 207. When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with a right of reimbursement from the person obliged to give support. This Article shall apply particularly when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. (2166a) Art. 208. In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances manifestly beyond the contemplation of the parties. (n)
TITLE IX PARENTAL AUTHORITY

Chapter 1. General Provisions Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing of such children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. (n) Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. (313a)
498
Arts. 211-216
Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary. Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority. (17a, PD 603) Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. (17a, PD 603) Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. (n) No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise. Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority. (355a) Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime, against the descendant or by one parent against the other. (315a) Chapter 2. Substitute and Special Parental Authority Art. 216. In default of parents or a judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated: (1) The surviving grandparent, as provided in Art. 214;
Arts. 217-220
499
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and (3) The childs actual custodian, over twenty-one years of age, unless unfit or disqualified. Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. (349a, 351a, 354a) Art. 217. In case of foundlings, abandoned, neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of childrens homes, orphanages and similar institutions duly accredited by the proper government agency. (314a) Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a) Art. 219. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances. All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts. (n) Chapter 3. Effect of Parental Authority Upon the Persons of the Children Art. 220. The parents and those exercising parental authority shall have with respect to their unemancipated children or wards the following rights and duties:
500
Arts. 221-223
(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding; (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; (4) To enhance, protect, preserve and maintain their physical and mental health at all times; (5) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (6) To represent them in all matters affecting their interests; (7) To demand from them respect and obedience; (8) To impose discipline on them as may be required under the circumstances; and (9) To perform such other duties as are imposed by law upon parents and guardians. (316a) Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (2180[2]a and [4]a) Art. 222. The courts may appoint a guardian of the childs property, or a guardian ad litem when the best interests of the child so require. (317) Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or
Arts. 224-225
501
appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. (318a) Art. 224. The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in childrens homes duly accredited by the proper government agency. The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper. (319a) Chapter 4. Effect of Parental Authority Upon the Property of the Children Art. 225. The father and the mother shall, jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. In case of disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved.
502
Arts. 226-229
The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. (320a) Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latters support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the childs property shall be limited primarily to the childs support and secondarily to the collective daily needs of the family. (321a, 323a) Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner grants the entire proceeds to the child. In any case, the proceeds thus given in whole or in part shall not be charged to the childs legitime. (322a) Chapter 5. Suspension or Termination of Parental Authority Art. 228. Parental authority terminates permanently: (1) Upon the death of the parents; (2) Upon the death of the child; or (3) Upon emancipation of the child. (327a)
Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates: (1) Upon adoption of the child; (2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose; (4) Upon final judgment of a competent court divesting the party concerned of parental authority; or
Arts. 230-233
503
(5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a) Art. 230. Parental authority is suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. (330a) Art. 231. The court in an action filed for the purpose or in a related case may also suspend parental authority if the parent or the person exercising the same: (1) Treats the child with excessive harshness or cruelty; (2) Gives the child corrupting orders, counsel or example; (3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of lasciviousness. The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority. If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances. The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated. (332a) Art. 232. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority. (n) Art. 233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. In no case shall the school administrator, teacher or individual engaged in child care and exercising special parental authority, inflict corporal punishment upon the child. (n)
504
Arts. 234-239
TITLE X EMANCIPATION AND AGE OF MAJORITY

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen years. (As amended by R.A. 6809) Art. 235. (Repealed by R.A. 6809)
Art. 236. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases. Contracting marriage shall require parental consent until the age of twenty-one. Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code. (As amended by R.A. 6809) Art. 237. (Repealed by R.A. 6809)
TITLE XI SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW

Chapter 1. Scope of Application Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner, without regard to technical rules. (n) Chapter 2. Separation in Fact Between Husband and Wife Art. 239. When a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts.
Arts. 240-246
505
The petition shall attach the proposed deed, if any, embodying the transaction, and, if none, shall describe in detail the said transaction and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court. (n) Art. 240. Claims for damages by either spouse, except costs of the proceedings, may be litigated only in a separate action. (n) Art. 241. Jurisdiction over the petition shall, upon proof of notice to the other spouse, be exercised by the proper court authorized to hear family cases, if one exists, or in the regional trial court or its equivalent, sitting in the place where either of the spouses resides. (n) Art. 242. Upon the filing of the petition, the court shall notify the other spouse, whose consent to the transaction is required, of said petition, ordering said spouse to show cause why the petition should not be granted, on or before the date set in said notice for the initial conference. The notice shall be accompanied by a copy of the petition and shall be served at the last known address of the spouse concerned. (n) Art. 243. A preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel. After the initial conference, if the court deems it useful, the parties may be assisted by counsel at the succeeding conferences and hearings. (n) Art. 244. In case of non-appearance of the spouse whose consent is sought, the court shall inquire into the reasons for his or her failure to appear, and shall require such appearance, if possible. (n) Art. 245. If, despite all efforts, the attendance of the non-consenting spouse is not secured, the court may proceed ex parte and render judgment as the facts and circumstances may warrant. In any case, the judge shall endeavor to protect the interest of the non-appearing spouse. (n) Art. 246. If the petition is not resolved at the initial conference, said petition shall be decided in a summary hearing on the basis of affidavits, documentary evidence or oral testimonies at the sound discretion of the court. If testimony is needed, the court shall specify the witnesses to be heard and the subject-matter of their testimonies, directing the parties to present said witnesses. (n)
506
Arts. 247-254
Art. 247. The judgment of the court shall be immediately final and executory. (n) Art. 248. The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules. (n) Chapter 3. Incidents Involving Parental Authority Art. 249. Petitions filed under Articles 223, 225 and 239 of this Code involving parental authority shall be verified. Art. 250. Such petitions shall be filed in the proper court of the place where the child resides. (n) Art. 251. Upon the filing of the petition, the court shall notify the parents or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child. (n) Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable. (n) Chapter 4. Other Matters Subject to Summary Proceedings Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. (n)
TITLE XII FINAL PROVISIONS

Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders, proclamations, rules and regulations, or parts thereof, inconsistent herewith are hereby repealed. (n)
Arts. 255-257
507
Art. 255. If any provision of this Code is held invalid, all the other provisions not affected thereby shall remain valid. (n) Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. (n) Art. 257. This Code shall take effect one year after the completion of its publication in a newspaper of general circulation, as certified by the Executive Secretary, Office of the President.* Publication shall likewise be made in the Official Gazette. (n) Done in the City of Manila, this 6th day of July, in the year of Our Lord, nineteen hundred and eighty-seven. (Sgd.) CORAZON C. AQUINO President Republic of the Philippines By the President: (Sgd.) JOKER P. ARROYO Executive Secretary
*The Family Code took effect on August 31, 1988. (Memo. Cir. No. 85)
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Appendix B DOMESTIC ADOPTION ACT

AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Article I GENERAL PROVISIONS SECTION 1. Short Title. This Act shall be known as the Domestic Adoption Act of 1998. SEC. 2. Declaration of Policies.
(a) It is hereby declared the policy of the State to ensure that every child remains under the care and custody of his/her parent(s) and be provided with love, care, understanding and security towards the full and harmonious development of his/her personality. Only when such efforts prove insufficient and no appropriate placement or adoption within the childs extended family is available shall adoption by an unrelated person be considered. (b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the Rights of the Child; UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally; and the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption. Toward this end, the State shall provide alternative protection and
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Sec. 3
DOMESTIC ADOPTION ACT [Republic Act No. 8552]
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assistance through foster care or adoption for every child who is neglected, orphaned, or abandoned. (c) It shall also be a State policy to: (i) Safeguard the biological parent(s) from making hurried decisions to relinquish his/her parental authority over his/her child; (ii) Prevent the child from unnecessary separation from his/her biological parent(s); (iii) Protect adoptive parent(s) from attempts to disturb his/her parental authority and custody over his/her adopted child. Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared so as to establish the status of the child as legally available for adoption and his/her custody transferred to the Department of Social Welfare and Development or to any duly licensed and accredited child-placing or child-caring agency, which entity shall be authorized to take steps for the permanent placement of the child; (iv) Conduct public information and educational campaigns to promote a positive environment for adoption; (v) Ensure that sufficient capacity exists within government and private sector agencies to handle adoption inquiries, process domestic adoption applications, and offer adoption related services including, but not limited to, parent preparation and post-adoption education and counseling; and (vi) Encourage domestic adoption so as to preserve the childs identity and culture in his/her native land, and only when this is not available shall inter-country adoption be considered as a last resort. SEC. 3. Definition of Terms. For purposes of this Act, the following terms shall be defined as: (a) Child is a person below eighteen (18) years of age. (b) A child legally available for adoption refers to a child who has been voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his/her biological parent(s) or guardian or adopter(s) in case of rescission of adoption.
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Sec. 4
(c) Voluntarily committed child is one whose parent(s) knowingly and willingly relinquishes parental authority to the Department. (d) Involuntarily committed child is one whose parent(s), known or unknown, has been permanently and judicially deprived of parental authority due to abandonment; substantial, continuous, or repeated neglect; abuse; or incompetence to discharge parental responsibilities. (e) Abandoned child refers to one who has no proper parental care or guardianship or whose parent(s) has deserted him/her for a period of at least six (6) continuous months and has been judicially declared as such. (f) Supervised trial custody is a period of time within which a social worker oversees the adjustment and emotional readiness of both adopter(s) and adoptee in stabilizing their final relationship. (g) Department refers to the Department of Social Welfare and Development. (h) Child-placing agency is a duly licensed and accredited agency by the Department to provide comprehensive child welfare services including, but not limited to, receiving applications for adoption, evaluating the prospective adoptive parents, and preparing the adoption home study. (i) Child-caring agency is a duly licensed and accredited agency by the Department that provides twenty-four (24)-hour residential care services for abandoned, orphaned, neglected, or voluntarily committed children. (j) Simulation of birth is the tampering of the civil registry making it appear in the birth records that a certain child was born to a person who is not his/her biological mother, causing such child to lose his/her true identity and status. Article II PRE-ADOPTION SERVICES SEC. 4. Counseling Services. The Department shall provide the services of licensed social workers to the following: (a) Biological Parent(s). Counseling shall be provided to the parent(s) before and after the birth of his/her child. No binding
Secs. 5-7
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commitment to an adoption plan shall be permitted before the birth of his/her child. A period of six (6) months shall be allowed for the biological parent(s) to reconsider any decision to relinquish his/her child for adoption before the decision becomes irrevocable. Counseling and rehabilitation services shall also be offered to the biological parent(s) after he/she has relinquished his/her child for adoption. Steps shall be taken by the Department to ensure that no hurried decisions are made and all alternatives for the childs future and the implications of each alternative have been provided. (b) Prospective Adoptive Parent(s). Counseling sessions, adoption fora and seminars, among others, shall be provided to prospective adoptive parent(s) to resolve possible adoption issues and to prepare him/her for effective parenting. (c) Prospective Adoptee. Counseling sessions shall be provided to ensure that he/she understands the nature and effects of adoption and is able to express his/her views on adoption in accordance with his/her age and level of maturity. SEC. 5. Location of Unknown Parent(s). It shall be the duty of the Department or the child-placing or child-caring agency which has custody of the child to exert all efforts to locate his/her unknown biological parent(s). If such efforts fail, the child shall be registered as a foundling and subsequently be the subject of legal proceedings where he/she shall be declared abandoned. SEC. 6. Support Services. The Department shall develop a pre-adoption program which shall include, among others, the abovementioned services. Article III ELIGIBILITY SEC. 7. Who May Adopt. The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable in caring for children, at least sixteen (16) years older than the adoptee, and who is a position to support and care for his/her children in keeping with the means of the family. The
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Sec. 7
requirement of sixteen (16) years difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptees parent; (b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the aliens qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or (c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. Husband and wife shall jointly adopt, except in the following cases: (i) if one spouse seeks to adopt his/her own illegitimate son/daughter of the other; or (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or (iii) if one spouses are legally separated from each other. In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses.
Secs. 8-10
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SEC. 8. Who May Be Adopted. The following may be adopted: (a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; (b) The legitimate son/daughter of one spouse by the other spouse; (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; (d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; (e) A child whose adoption has been previously rescinded; or (f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s). SEC. 9. Whose Consent is Necessary to the Adoption. After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required. (a) The adoptee, if ten (10) years of age or over; (b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; (c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any; (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latters spouse, if any; and (e) The spouse, if any, of the person adopting or to be adopted. Article IV PROCEDURE SEC. 10. Hurried Decisions. In all proceedings for adoption, the court shall require proof that the biological parent(s) has been
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Secs. 11-12
properly counseled to prevent him/her from making hurried decisions caused by strain or anxiety to give up the child, and to sustain that all measures to strengthen the family have been exhausted and that any prolonged stay of the child in his/her own home will be inimical to his/her welfare and interest. SEC. 11. Case Study. No petition for adoption shall be set for hearing unless a licensed social worker of the Department, the social service office of the local government unit, or any child-placing or child-caring agency has made a case study of the adoptee, his/her biological parent(s), as well as the adopter(s), and has submitted the report and recommendation on the matter to the court hearing such petition. At the time of preparation of the adoptees case study, the concerned social worker shall confirm with the Civil Registry the real identity and registered name of adoptee. If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the concerned social worker to ensure that the adoptee is registered. The case study on the adoptee shall establish that he/she is legally available for adoption and that the documents to support this fact are valid and authentic. Further, the case study of the adopter(s) shall ascertain his/her genuine intentions and that the adoption is in the best interest of the child. The Department shall intervene on behalf of the adoptee if it finds, after the conduct of the case studies, that the petition should be denied. The case studies and other relevant documents and records pertaining to the adoptee and the adoption shall be preserved by the Department. SEC. 12. Supervised Trial Custody. No petition for adoption shall be finally granted until the adopter(s) has been given by the court a supervised trial custody period for at least six (6)-month within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. During said period, temporary parental authority shall be vested in the adopter(s). The court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee, stating the reasons for the reduction of the period. However,
Secs. 13-15
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for alien adopter(s), he/she must complete the six (6)-month trial custody except for those enumerated in Sec. 7(b)(i)(ii)(iii). If the child is below seven (7) years of age and is placed with the prospective adopter(s) through a pre-adoption placement authority issued by the Department, the prospective adopter(s) shall enjoy all the benefits to which biological parent(s) is entitled from the date the adoptee is placed with the prospective adopter(s). SEC. 13. Decree of Adoption. If, after the publication of the order of hearing has been complied with, and no opposition has been interposed to the petition, and after consideration of the case studies, the qualifications of the adopter(s), trial custody report and the evidence submitted, the court is convinced that the petitioners are qualified to adopt, and that the adoption would redound to the best interest of the adoptee, a decree of adoption shall be entered which shall be effective as of the date the original petition was filed. This provision shall also apply in case the petitioner(s) dies before the issuance of the decree of adoption to protect the interest of the adoptee. The decree shall state the name by which the child is to be known. SEC. 14. Civil Registry Record. An amended certificate of birth shall be issued by the Civil Registry, as required by the Rules of Court, attesting to the fact that the adoptee is the child of the adopter(s) by being registered with his/her surname. The original certificate of birth shall be stamped cancelled with the annotation of the issuance of an amended birth certificate in its place and shall be sealed in the civil registry records. The new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue. SEC. 15. Confidential Nature of Proceedings and Records. All hearings in adoption cases shall be confidential and shall not be open to the public. All records, books, and papers relating to the adoption cases in the files of the court, the Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential. If the court finds that the disclosure of the information to a third person is necessary for purposes connected with or arising out of the adoption and will be for the best interest of the adoptee, the court may merit the necessary information to be released, restricting the purposes for which it may be used.
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Secs. 16-20
Article V EFFECTS OF ADOPTION SEC. 16. Parental Authority. Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s). SEC. 17. Legitimacy. The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family. SEC. 18. Succession. In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her parent(s) had left a will, the law on testamentary succession shall govern. Article VI RESCISSION OF ADOPTION SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations. Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code. SEC. 20. Effects of Rescission. If the petition is granted, the parental authority of the adoptees biological parent(s), if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished.
Sec. 21
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The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate. Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected. All the foregoing effects of rescission of adoption shall be without prejudice to the penalties imposable under the Penal Code if the criminal acts are properly proven. Article VII VIOLATIONS AND PENALTIES SEC. 21. Violations and Penalties.
(a) The penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and/or a fine not less than Fifty thousand pesos (P50,000.00), but not more than Two hundred thousand pesos (P200,000.00) at the discretion of the court shall be imposed on any person who shall commit any of the following acts: (i) obtaining consent for an adoption through coercion, undue influence, fraud, improper material inducement, or other similar acts; (ii) non-compliance with the procedures and safeguards provided by the law for adoption; or (iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation. (b) Any person who shall cause the fictitious registration of the birth of a child under the name(s) of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth, and shall be punished by prision mayor in its medium period and a fine not exceeding Fifty thousand pesos (P50,000.00). Any physician or nurse or hospital personnel who, in violation of his/her oath of office, shall cooperate in the execution of the abovementioned crime shall suffer the penalties herein prescribed and also the penalty of permanent disqualification. Any person who shall violate established regulations relating to the confidentiality and integrity of records, documents, and communications of adoption applications, cases, and processes shall suffer the
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Sec. 22
penalty of imprisonment ranging from one (1) year and one (1) day to two (2) years, and/or a fine of not less than Five thousand pesos (P5,000.00) but not more than Ten thousand pesos (P10,000.00), at the discretion of the court. A penalty lower by two (2) degrees than that prescribed for the consummated offense under this Article shall be imposed upon the principals of the attempt to commit any of the acts herein enumerated. Acts punishable under this Article, when committed by a syndicate or where it involves two (2) or more children shall be considered as an offense constituting child trafficking and shall merit the penalty of reclusion perpetua. Acts punishable under this Article are deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any of the unlawful acts defined under this Article. Penalties as are herein provided, shall be in addition to any other penalties which may be imposed for the same acts punishable under other laws, ordinances, executive orders, and proclamations. When the offender is an alien, he/she shall be deported immediately after service of sentence and perpetually excluded from entry to the country. Any government official, employee or functionary who shall be found guilty of violating any of the provisions of this Act, or who shall conspire with private individuals shall, in addition to the above-prescribed penalties, be penalized in accordance with existing civil service laws, rules and regulations: Provided, That upon the filing of a case, either administrative or criminal, said government official, employee, or functionary concerned shall automatically suffer suspension until the resolution of the case. SEC. 22. Rectification of Simulated Births. A person who has, prior to the effectivity of this Act, simulated the birth of a child shall not be punished for such act: Provided, That the simulation of birth was made for the best interest of the child and that he/she has been consistently considered and treated by that person as his/her own son/daughter: Provided, further, That the application for correction of the birth registration and petition for adoption shall be filed within five (5) years from the effectivity of this Act and completed thereafter: Provided, finally, That such person complies with the procedure as
Secs. 23-28
519
specified in Article IV of this Act and other requirements as determined by the Department. Article VIII FINAL PROVISIONS SEC. 23. Adoption Resource and Referral Office. There shall be established an Adoption Resources and Referral Office under the Department with the following functions: (a) monitor the existence, number, and flow of children legally available for adoption and prospective adopter(s) so as to facilitate their matching; (b) maintain a nationwide information and educational campaign on domestic adoption; (c) keep records of adoption proceedings; (d) generate resources to help child-caring and child-placing agencies and foster homes maintain viability; and (e) do policy research in collaboration with the intercountry Adoption Board and other concerned agencies. The office shall be manned by adoption experts from the public and private sectors. SEC. 24. Implementing Rules and Regulations. Within six (6) months from the promulgation of this Act, the Department, with the Council for the Welfare of Children, the Office of Civil Registry General, the Department of Justice, Office of the Solicitor General, and two (2) private individuals representing child-placing and childcaring agencies shall formulate the necessary guidelines to make the provisions of this Act operative. SEC. 25. Appropriations. Such sum as may be necessary for the implementation of the provisions of this Act shall be included in the General Appropriations Act of the year following its enactment into law and thereafter. SEC. 26. Repealing Clause. Any law, presidential decree or issuance, executive order, letter of instruction, administrative order, rule, or regulation contrary to, or inconsistent with the provisions of this Act is hereby repealed, modified, or amended accordingly. SEC. 27. Separability Clause. If any provision of this Act is held invalid or unconstitutional, the other provisions not affected thereby shall remain valid and subsisting. SEC. 28. Effectivity Clause. This Act shall take effect fifteen (15) days following its complete publication in any newspaper of general circulation or in the Official Gazette. Approved, February 25, 1998.
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Appendix C CHECKLIST FOR CLERK OF COURT
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CHECKLIST FOR CLERK OF COURT
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by
MELENCIO S. STA. MARIA, JR.

Ll.B., with Honors, Ateneo De Manila School of Law; Ll.M., Boston University; Professor of Law in Persons and Family Relations, Obligations and Contracts, Civil Law Review I and II at the Ateneo De Manila School of Law; Bar Reviewer in Persons and Family Relations at the Ateneo De Manila School of Law; Lecturer at the Philippine Judicial Academy (PHILJA) of the Supreme Court and member of its Department of Special Concern 1993 United Nations Fellow at the International Law Commission, Palais de Nation, Geneva, Switzerland; Law Practitioner
SECOND EDITION 2007
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All these litigations evoke intense feelings of animosity, revenge, and retribution. Some of them may be fought ruthlessly. But none of them, even in their most aggravated form, can equal the sheer, unadulterated venom of a matrimonial contest. The participants are often ready to gouge out the eyes or the soul of the once loved, without any pity whatsoever. Louie Nizer MY LIFE IN COURT
In these acts of family severance that happen nationwide, the lives of hundreds of men, women, their children, grandchildren, and even their extended families are deeply affected. And in the center of the legalities of all these are the judges and the lawyers. They are tasked with the responsibility of putting order, justice and fairness in a sensitively and potentially chaotic situation of people with family problems. In a large measure, the survival of society depends also on how judges and lawyers handle the problems of the basic units of the nation, namely the families that compose it. In turn, the effectiveness of our judges and lawyers in answering this challenge depends upon the adequacy of the substantive laws on the matter, the efficacy of the court procedures intended to implement them, the thoroughness of their knowledge of the rules, and the competence they exert in utilizing these rules. Melencio S. Sta. Maria, Jr. Excerpt from Preface
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FOREWORD 2ND EDITION

After reading Professor Melencio Sta. Marias legal article entitled Disturbing Family Law Jurisprudence: A Critical Observation1 published in the Ateneo Law Journal, no less than retired Associate Justice Supreme Court Justice Ameurfina A. Melencio-Herrera, now Chancellor of the Philippine Judicial Academy of the Supreme Court, commented thus, this eloquently speaks of a leading academicians pursuit of what is fair and just and calls for serious thought.2 Praising the fourth edition of Professor Sta. Marias scholarly written law textbook entitled Persons and Family Relations Law, Fr. Joaquin Bernas, S.J., the Dean Emeritus of the Ateneo De Manila School of Law and, in his own right, a brilliant legal scholar of our times, had this to say: The comprehensiveness of this book is of the highest standard and its reliability as a source of research is of the best quality.3 Even the late Justice Eduardo Caguioa, a highly respected Philippine civilist, commenting in 1991 on Professor Sta. Marias first book entitled Family Relations Law, said that the said professor was one of his better and talented students in the Ateneo School of Law4 and that his book is notable for its clear-cut explanation of the provisions and its searching exposition of the meaning, extent and background of the new provisions of the said Code.5 The good Justice even added that the book will be of tremendous help to students of law, practitioners and even to members of the judiciary.6 We at the Ateneo Law School are truly gratified with Professor Sta. Marias well-written second edition of his other book in Family Law entitled Court Procedures in Family Law Cases. Considering the current demands of our society and the fact that new rules and procedural jurisprudence have been enunciated or promulgated by the Supreme Court, the new edition of the book is very timely. Professor Sta. Maria scholarly captures and explains the nuances, applicability,
51 Ateneo L.J. v530 (1 December 2006 Number 3). Foreword, Ibid. 3 Foreword, PERSONS AND FAMILY RELATIONS LAW (Sta. Maria), 4th Edition. 4 Foreword, FAMILY RELATIONS LAW, First Edition, 1991. 5 Ibid. 6 Ibid.
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novelty, distinctions and indeed, even at times, contradictions among the rules. He has brought coherence in the rules, not only by his citing of the relevant Supreme Court decisions but, most invaluably, by sharing with his readers the deliberations of the Committee on the Revisions of Rules of the Supreme Court in explaining the meaning of many of the provisions. Another important feature of the work are the suggestions of Professor Sta. Maria in proving pertinent grounds for certain family cases like in declaration of nullity of marriage. This book is truly an effective guide to a practicing family lawyer in going about his or her cases. In the same vein that the above legal luminaries have observed the clarity, depth and enlightening, explanations of Professor Melencio Sta. Maria in his various works for which he got well-deserved praises, I also commend and congratulate him for his new book. It is a timely written legal textbook that must be in every lawyers library.
CESAR VILLANUEVA Dean Ateneo de Manila School of Law
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PREFACE
Beyond doubt, the new Rules in family-law cases are excellent contributions of the Supreme Court to nation building. The new court procedures will directly affect so many lives. Today, more than anytime in our history as a nation, many families every year are being disrupted emotionally, financially, psychologically and physically by separation. If one is to go to a Family Court and look at the list of cases for hearing, one will realize a sense of sad reality to the anecdote that the number of people terminating their union today has already approximated the number of people wanting to get married. Many children are being abandoned, neglected and abused. The law even expressly provides that, for purposes of inter-country adoption, the maximum number that may be allowed for foreign adoption shall not exceed six hundred (600) a year for the first five years of the effectivity of the Inter-Country Adoption Law. The sheer thought that literally hundreds of Filipino children are lined up for adoption here and abroad makes one wonder how much Philippine family life has been seriously damaged. In these acts of family severance that happen nationwide, the lives of hundreds of men, women, their children, grandchildren, and even their extended families are deeply affected. And in the center of the legalities of all these are the judges and the lawyers. They are tasked with the responsibility of putting order, justice and fairness in a sensitively and potentially chaotic situation of people with family problems. In a large measure, the survival of society depends also on how judges and lawyers handle the problems of the basic units of the nation, namely the families that compose it. In turn, the effectiveness of our judges and lawyers in answering this challenge depends upon the adequacy of the substantive laws on the matter, the efficacy of the court procedures intended to implement them, the thoroughness of their knowledge of the rules, and the competence they exert in utilizing these rules. This is why the promulgation of the new rules is a timely development. Instead of looking at these rules as a reflection of or a reaction to the illness of a deteriorating society, I see them as positive tools to assist the courts and the hundreds of lawyers in our country in the re-organization of the life of each member of a disrupted family.
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For example, on the grassroot level, I see the rules as providing the legal means by which hundreds of ordinary housewives or househusbands will be able to get enough properties to support themselves and start their lives anew after a separation, or as a remedial assurance for the continued support of hundreds of neglected children until they finish a course that could make them good citizens and positive contributors to our society, or as providing homeless orphans with a loving adopted family, or a means of formally terminating a marriage, which in reality has long been non-functional, so that the parties in the same can be given another chance of a happy and well-ordered life, or a way of preserving a marriage which, because of some untimely momentary set-backs, is in the brink of irrevocable breakdown. It is in this light that I undertook this small task of putting together some notes regarding the rules. I hope that, in reading this work, our judges, lawyers, and law students can be guided in better understanding the procedures and, in the end, can become better instruments in the re-organization and protection of the people and society as a whole.
MELENCIO S. STA. MARIA, JR.
Quezon City September 20, 2003
PREFACE 2ND EDITION

When I had the first edition of this book released in 2004, I thought then that it was so timely because of the many issuances of the Supreme Court of new rules in the field of family law. Today, taking into consideration the phenomenal rise in family law cases in courts, I have come up with this new edition incorporating even newer rules and also suggesting what sort of evidence are to be presented in declaration-of-nullity-of-marriage disputes, which account for a majority of the suits pending in family courts. I have also incorporated relevant procedural jurisprudence enunciated by the Supreme Court. Also, I was motivated in coming up with this second edition by the inquiries made by family law practitioners and judges, whom I have met in the lectures I have conducted throughout the Philippines for the Philippine Judicial Academy (PHILJA). Candidly, I was likewise inspired by the elective legal course, Conflict Resolution in Family Law Cases, offered to a few third year and fourth year law students at the Ateneo Law School. This is a subject which I personally conceptualized, prepared for, and had approved by Dean Cesar Villanueva at the Ateneo Law School. The subject deals with the various dynamics in family disputes. It stresses the practical side of resolving family cases both under the usual litigation-framework and under other methods which are extra-judicial, such as mediation. This new edition addresses the former. My objective in releasing this new edition is still very basic and modest. It is to show that the rules are important as they are designed to put order, harmony, stability and, in a great measure, tranquility in handling and proceeding with family disputes which are potentially emotional, heated, acrimonious and messy. August 10, 2007 MELENCIO S. STA. MARIA, JR
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CONTENTS
Introduction .............................................................................. 1 RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES [A.M. No. 02-11-10-SC] Section 1. Scope ........................................................................ 4 Void and Voidable Marriages ......................................... 4 Nature of the Case........................................................... 5 Section 2. Petition for Declaration of Absolute Nullity of Void Marriages............................................................. 5 Parties............................................................................... 6 Good Faith/Bad Faith of the Parties............................... 7 Non-Application of Unclean Hands Doctrine................. 8 Family Courts................................................................... 9 Imprescriptibility of Action or Defense........................... 9 Psychological Incapacity.................................................. 10 Section 3. Petition for annulment of voidable marriages....... 11 Grounds, Parties, Prescriptive Period ............................ 12 Section 4. Venue ....................................................................... 13 Venue................................................................................ 14 Section 5. Contents and Form of Petition................................ 14 Content............................................................................. 15 Verification and Certification.......................................... 15 Copies................................................................................ 16 Sanction............................................................................ 16 Section 6. Summons.................................................................. 16 Publication........................................................................ 17 Newspaper of General Circulation.................................. 17 Service............................................................................... 18 Rules on Service of Summons in Rules of Court............ 18
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Section 7. Motion to Dismiss.................................................... 20 Grounds............................................................................. 21 Section 8. Answer ..................................................................... 21 Verification....................................................................... 21 Default.............................................................................. 22 Collusion........................................................................... 22 Investigation to Determine Collusion............................. 23 Section 9. Investigation Report of Public Prosecutor.............. 24 Investigation of the Public Prosecutor............................ 24 Ground for Dismissal....................................................... 24 Section 10. Social Worker......................................................... 24 Social Worker................................................................... 25 Section 11. Pre-Trial................................................................. 25 Section 12. Contents of pre-trial brief...................................... 26 Section 13. Effect of failure to appear at the pre-trial ........... 26 Investigation for Collusion.............................................. 27 Section 14. Pre-Trial Conference............................................. 27 Mediation.......................................................................... 27 Section 15. Pre-Trial Order...................................................... 28 Control of the Case........................................................... 29 Barred Evidence............................................................... 29 Section 16. Prohibited Compromise......................................... 30 Prohibited Compromise................................................... 30 Suspension........................................................................ 31

Section 17. Trial........................................................................ 31 Full-Blown Hearing.......................................................... 31 Role of Public Prosecutor................................................. 32 Reception of Evidence...................................................... 32 Affidavits in Lieu of Direct Oral Testimony................... 33 Stipulation of Facts or Confession of Judgment............. 33 Exclusion of Persons without Direct Interest ................ 35 Evidence............................................................................ 35 Under 18 years of Age ..................................................... 36 No Authority of the Solemnizing Officer ........................ 36 No Valid Marriage License ............................................. 37 Bigamy ............................................................................. 38 Mistake in Identity .......................................................... 38
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Subsequent Marriage under Article 53 .......................... 39 Psychological Incapacity ................................................. 39 Incestuous Marriage ....................................................... 40 Collateral Blood Relatives .............................................. 40 Step-Parents and Step-Children .................................... 40 Parents-in-Law and Children-in-Law ............................ 41 Adopting Parent and Adopted Child .............................. 41 Surviving Spouse of the Adopting Parent and the Adopted Child ................................................... 41 Surviving Spouse of the Adopted Child and the Adopter ............................................................. 41 Adopted Child and the Legitimate Child of the Adopter ............................................................. 41 Adopted Children of the same Adopter .......................... 42 Adoption Decree .............................................................. 42 Killing to Marry Another ................................................ 42 Confidentiality of Record ................................................ 43 Section 18. Memoranda............................................................ 43 Memoranda....................................................................... 43 Certification...................................................................... 44 Section 19. Decision.................................................................. 45 Decision ............................................................................ 45 Damages in Psychological Incapacity Cases .................. 46 Coram Non-Judice and Estoppel .................................... 46 Splitting a Cause of Action.............................................. 47 Publication........................................................................ 47 Recording of Decision ...................................................... 47 Entry of Judgment and Decree........................................ 48 Section 20. Appeal..................................................................... 49 Motion for Reconsideration or New Trial........................ 49 Governing Rules............................................................... 49 Section 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes.......................... 51 Liquidation and Partition................................................ 52 Delivery of Presumptive Legitime................................... 52 Property Regime in a Void Marriage.............................. 54 Persons Who can Enforce Delivery of Presumptive Legitime and How Enforcement can be Made....... 57 Support of the Children................................................... 57 Termination of Support Between the Parties................. 57 Reimbursement of Support Pendente Lite .................... 58
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Section 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage................... 58 Registration of the Decree .............................................. 59 Formal Effect of Non-Observance................................... 59 Substantial Effect of Non-Observance............................ 59 Subsequent Marriage without Entry of Judgment and Decree.............................................. 60 Amendment of Birth Certificate of Children.................. 60 Section 23. Registration and publication of the decree; decree as best evidence.................................................... 61 Best Evidence................................................................... 61 Section 24. Effect of death of a party; duty of the Family Court or Appellate Court ................................................ 62 Effect of Death.................................................................. 62 Section 25. Effectivity............................................................... 63 Publication........................................................................ 63 RULE ON LEGAL SEPARATION [A.M. No. 02-11-11-SC] Section 1. Scope ........................................................................ 64 Similarity of Procedure.................................................... 64 Nature of the Proceeding................................................. 64 Section 2. Petition..................................................................... 64 Prescription...................................................................... 66 Repeated Physical Violence or Grossly Abusive Conduct...................................................... 67 Compulsion by Physical Violence or Moral Pressure to Change Religious or Political Affiliation................................................................. 69 Corruption or Inducement to Engage in Prostitution.............................................................. 70 Final Judgment involving More than Six Years of Imprisonment...................................................... 71 Drug Addiction, Habitual Alcoholism, Lesbianism and Homosexuality.................................................. 71 Bigamy.............................................................................. 72 Sexual Infidelity or Perversion........................................ 72 Attempt on Life ............................................................... 73 Unjustified Abandonment................................................ 74
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Section 3. Summons ................................................................. 76 Section 4. Motion to Dismiss.................................................... 76 Section 5. Answer...................................................................... 76 Section 6. Investigation Report of Public Prosecutor.............. 77 Section 7. Social Worker........................................................... 77 Section 8. Pre-Trial................................................................... 77 Section 9. Contents of pre-trial brief........................................ 78 Section 10. Effect of failure to appear at the pre-trial............ 79 Section 11. Pre-trial conference .............................................. 79 Section 12. Pre-Trial order ...................................................... 79 Section 13. Prohibited compromise ......................................... 81 Section 14. Trial ....................................................................... 81 Cooling-Off Period............................................................ 81 Non-Application of 6-month Cooling-off Period ............. 83 Efforts for Reconciliation ................................................ 83 Section 15. Memoranda............................................................ 84 Section 16. Decision.................................................................. 84 Condonation...................................................................... 85 Consent............................................................................. 86 Connivance....................................................................... 86 Equal Guilt ...................................................................... 87 Collusion........................................................................... 87 Cessation of Mutual Support .......................................... 88 Designation of Parent to Exercise Parental Authority...... 89 Section 17. Appeal..................................................................... 89 Section 18. Liquidation, partition and distribution, custody, and support of minor children.......................... 90 Section 19. Issuance of Decree of Legal Separation................ 90 Section 20. Registration and publication of the Decree of Legal Separation; decree as best evidence ................. 90 Section 21. Effect of death of a party; duty of the Family Court or Appellate Court.................................... 91 Death Terminates Legal Separation Case...................... 91
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Section 22. Petition for revocation of donations...................... 93 Petition for Revocation .................................................... 94 Revocation or Change of Beneficiary .............................. 95 Section 23. Decree of Reconciliation........................................ 101 Section 24. Revival of property regime or adoption of another.......................................................................... 102 Revival and Adoption of Property Regime ..................................................................... 103 Section 25. Effectivity............................................................... 106 RULE ON PROVISIONAL ORDERS [A.M. No. 02-11-12-SC] Section 1. When issued............................................................. 107 Section 2. Spousal support....................................................... 107 Source of Support in Legal Separation and Annulment of Marriage Cases ............................... 108 Source of Support in Void Marriages ............................. 108 Support Pendente Lite in General ................................. 110 Proof in Support Pendente Lite....................................... 112 Matters to be Proven Preliminarily in Support Pendente Lite........................................................... 112 Factors.............................................................................. 114 Section 3. Child Support........................................................... 114 Support in Arears............................................................. 115 Section 4. Child Custody........................................................... 115 Custody Pendente Lite..................................................... 116 Section 5. Visitation Rights...................................................... 117 Visitation Rights.............................................................. 117 Section 6. Hold Departure Order............................................. 121 Prohibition........................................................................ 122 Hold Departure Order...................................................... 123 Section 7. Order of Protection.................................................. 124 Order of Protection........................................................... 125 Section 8. Administration of Common Property..................... 125 Receiver or Sole Administrator....................................... 125 Section 9. Effectivity................................................................. 128
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RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS [A.M. No. 03-04-04-SC] Section 1. Applicability............................................................. 129 Nature of the Case........................................................... 129 Section 2. Petition for custody of minors; who may file.......... 129 Parties............................................................................... 129 Status of Children............................................................ 129 Section 3. Where to file petition............................................... 130 Venue................................................................................ 130 Section 4. Contents of Petition................................................. 130 Section 5. Summons; personal service on respondent............ 130 Section 6. Motion to dismiss..................................................... 130 Motion to Dismiss............................................................. 131 Section 7. Verified Answer....................................................... 131 Period to File Answer....................................................... 131 Section 8. Case study; duty of social worker........................... 131 Social Worker................................................................... 131 Section 9. Notice of mandatory pre-trial.................................. 131 Notice and Pre-Trial Presentation of Minor................... 132 Section 10. Contents of pre-trial brief...................................... 132 Affidavit in Lieu of Oral Direct Testimony..................... 133 Section 11. Effect of failure to appear at the pre-trial............ 133 Section 12. What may be done at pre-trial.............................. 134 Mediation.......................................................................... 134 Section 13. Provisional order awarding custody..................... 134 Parental Preference Rule ................................................ 135 Tender Years Rule............................................................ 136 Exception to Maternal Preference .................................. 139 Custody Granted to Others.............................................. 141 Section 14. Factors to consider in determining custody......... 142 Paramount Interest of the Child .................................... 143 Section 15. Temporary visitation rights.................................. 144
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Visitation Rights.............................................................. 144 Withholding of Visitation Rights .................................... 144
Section 16. Hold Departure Order........................................... 145 Prohibition ....................................................................... 146 Hold Departure Order ..................................................... 146 Section 17. Protection Order.................................................... 147 Section 18. Judgment............................................................... 147 No Finality of Custody Judgment .................................. 148 Section 19. Appeal..................................................................... 149 Motion for Reconsideration or New Trial ....................... 149 Section 20. Petition for writ of habeas corpus ........................ 149 Habeas Corpus ................................................................. 150 Habeas Corpus and the Tender-Years Rule ................... 151 Identity............................................................................. 152 Habeas Corpus in the Rules of Court.............................. 153 Section 21. Confidentiality of Proceedings.............................. 159 Confidentiality ................................................................. 159 Section 22. Effectivity............................................................... 159 RULE ON GUARDIANSHIP OF MINORS [A.M. No. 03-02-05-SC] Section 1. Applicability of the Rule.......................................... 160 Parents as Guardians ..................................................... 160 Non-applicability of Suppletory Character of Rule ....... 160 Section 2. Who may Petition for Appointment of Guardian....................................................................... 161 Guardian........................................................................... 161 Guardianship Proceeding................................................ 161 Section 3. Where to File petition.............................................. 162 Actual Residence ............................................................. 162

Section 4. Grounds of petition.................................................. 162 Suspension or Termination of Parental Authority......... 163 Remarried Parent............................................................. 163 Section 5. Qualifications of guardians..................................... 166 Section 6. Who may be appointed guardian of the person or property, or both, of a minor........................... 166
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Section 7. Contents of petition................................................. 167 Section 8. Time and notice of hearing...................................... 167 Section 9. Case study report..................................................... 167 Case Study........................................................................ 168 Section 10. Opposition to petition............................................ 168 Section 11. Hearing and order for letters to issue.................. 168 Section 12. When and how a guardian of the property for non-resident minor is appointed; notice.................... 168 Section 13. Service of final and executory judgment or order.............................................................................. 169 Section 14. Bond of guardian; amount; conditions.................. 169 Section 15. Where to file the bond; action thereon.................. 170 Claim Against the Guardian........................................... 170 Forfeiture ......................................................................... 170 Section 16. Bond of parents as guardians of property of minor............................................................................. 171 Bond ................................................................................. 171 Summary Proceeding....................................................... 172 Section 17. General duties of guardian.................................... 173 Section 18. Power and duty of the court.................................. 174 Section 19. Petition to sell or encumber property................... 175 Sale and Encumbrance.................................................... 175 Section 20. Order to show cause............................................... 176 Section 21. Hearing on return or order; costs......................... 176 Section 22. Contents of order for sale or encumbrance and its duration; bond...................................................... 177 Section 23. Court may order investment of proceeds and direct management of property................................ 177 Section 24. Grounds for removal or resignation of guardian........................................................................ 177 Section 25. Ground for termination of guardianship.............. 178
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Section 26. Service of final and executory judgment or order.............................................................................. 178 Section 27. Effect of the rule.................................................... 178 Section 28. Effectivity............................................................... 178 RULE ON ADOPTION [A.M. No. 02-6-02-SC] A. DOMESTIC ADOPTION Section 1. Applicability of the Rule.......................................... 179 Nature of Adoption Proceedings...................................... 179 Section 2. Objectives................................................................. 179 Section 3. Definition of Terms.................................................. 181 Section 4. Who may adopt........................................................ 184 Qualifications.................................................................... 186 Age Difference ................................................................. 186 Conviction and Pardon..................................................... 187 Aliens ............................................................................... 187 Joint adoption................................................................... 188 Section 5. Who may be adopted................................................ 189 Section 6. Venue........................................................................ 190 Section 7. Contents of the petition........................................... 190 Four in One Petition ....................................................... 192 Section 8. Rectification of simulated birth............................... 193 Rectification of Simulated Birth ..................................... 193 Section 9. Adoption of a foundling, an abandoned, dependent or neglected child........................................... 195 Abandoned, Foundling or Neglected Child..................... 196 Section 10. Change of name..................................................... 197 Section 11. Annexes to the petition.......................................... 197 Written Consent............................................................... 198 Section 12. Order of Hearing.................................................... 199 Section 13. Child and Home Study Reports............................ 200 Section 14. Hearing................................................................... 201
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Section 15. Supervised Trial Custody...................................... 201 Section 16. Decree of Adoption................................................. 202 Middle Name of Adopted ................................................. 204 Section 17. Book of Adoptions.................................................. 204 Section 18. Confidential Nature of Proceedings and Records...................................................................... 204 Section 19. Rescission of Adoption of the Adoptee.................. 205 Rescission.......................................................................... 205 Maltreatment ................................................................... 206 Attempt on Life................................................................ 206 Sexual Assault or Violence ............................................. 206 Abandonment .................................................................. 206 Disinheritance of Adoptee ............................................... 206 Section 20. Venue...................................................................... 207 Section 21. Time within which to file petition......................... 207 Section 22. Order to Answer..................................................... 207 Section 23. Judgment............................................................... 208 Section 24. Service of Judgment.............................................. 208 Section 25. Repeal..................................................................... 209 B. INTER-COUNTRY ADOPTION Section 26. Applicability........................................................... 209 Section 27. Objectives............................................................... 209 Section 28. Where to file Petition............................................. 209 Section 29. Who may be adopted.............................................. 209 Section 30. Contents of petition............................................... 209 Section 31. Annexes.................................................................. 211 Section 32. Duty of court.......................................................... 211 Section 33. Effectivity............................................................... 211 RULE ON EXAMINATION OF A CHILD WITNESS Section 1. Applicability of the Rule.......................................... 212
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Section 2. Objectives ................................................................ 212 Section 3. Construction of the Rule ......................................... 212 Section 4. Definitions ............................................................... 212 Section 5. Guardian ad litem ................................................... 214 Section 6. Competency ............................................................. 215 Section 7. Oath or affirmation.................................................. 216 Section 8. Examination of a child witness .............................. 216 Section 9. Interpreter for child ................................................ 217 Section 10. Facilitator to pose questions to child ................... 217 Section 11. Support persons .................................................... 218 Section 12. Waiting area for child witness ............................. 218 Section 13. Coutroom environment ......................................... 219 Section 14. Testimony during appropriate hours ................... 219 Section 15. Recess during testimony........................................ 219 Section 16. Testimonial aids..................................................... 219 Section 17. Emotional security item ....................................... 220 Section 18. Approaching the witness ...................................... 220 Section 19. Mode of questioning .............................................. 220 Section 20. Leading questions ................................................. 220 Section 21. Objections to questions ......................................... 220 Section 22. Corroboration ........................................................ 220 Section 23. Excluding the public ............................................. 220 Section 24. Persons prohibited from entering and leaving the courtroom .............................................. 221 Section 25. Live-link television testimony in criminal cases where the child is a victim or a witness ............... 221 Section 26. Screens, one-way mirrors, and other devices to shield child from accused................................ 224 Section 27. Videotaped deposition .......................................... 224 Section 28. Hearsay exception in child abuse cases ............... 226 Section 29. Admissibility of videotaped and audiotaped in-depth investigative or disclosure interviews in child abuse cases ......................................................... 228 Section 30. Sexual abuse shield rule ....................................... 229 Section 31. Protection of privacy and safety ........................... 230 Section 32. Applicability of ordinary rules ............................. 233 Section 33. Effectivity .............................................................. 233 RULE ON JUVENILES IN CONFLICT WITH THE LAW [A.M. No. 02-1-18-SC] Section 1. Applicability of the Rule ......................................... 234
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Section 2. Objective .................................................................. 234 Section 3. Interpretation ......................................................... 235 Section 4. Definitions ............................................................... 235 Section 5. Exemption from Criminal Liability ....................... 238 Section 6. Procedure in Taking a Juvenile into Custody ....... 239 Section 7. Taking Custody of a Juvenile without a Warrant ......................................................................... 240 Section 8. Conduct of Initial Investigation by the Police ................................................................................ 240 Section 9. Fingerprinting and Photographing of the Juvenile ............................................................................ 240 Section 10. Intake Report by the Social Welfare Officer ........ 241 Section 11. Filing of Criminal Action ...................................... 241 Section 12. Prosecution of Civil Action ................................... 241 Section 13. Preliminary Investigation .................................... 241 Section 14. Venue ..................................................................... 242 Section 15. Recognizance ......................................................... 242 Section 16. When Bail a Matter of Right ................................ 242 Section 17. When Bail not a Matter of Right ......................... 243 Section 18. Care of Juvenile in Conflict with the Law ........... 243 Section 19. Case Study Report ................................................ 243 Section 20. Diversion Proceedings Before Arraignment ........ 243 Section 21. Diversion Committee ............................................ 244 Section 22. Diversion Programs .............................................. 245 Section 23. Hearing of Diversion Programs ........................... 246 Section 24. Undertaking .......................................................... 246 Section 25. Closure Order ........................................................ 247 Section 26. Duty of the Family Court to Protect the Rights of the Juvenile ..................................................... 247 Section 27. Arraignment and Plea .......................................... 249 Section 28. Pre-Trial ................................................................ 249 Section 29. Trial ....................................................................... 249 Section 30. Guiding Principles in Judging the Juvenile ........ 250 Section 31. Promulgation of Sentence .................................... 250 Section 32. Automatic Suspension of Sentence and Disposition Orders ........................................................... 250 Section 33. Discharge of Juvenile Subject of Disposition Measure ........................................................ 251 Section 34. Probation as an Alternative to Imprisonment .................................................................. 252 Section 35. Credit in Service of Sentence ............................... 252 Section 36. Confidentiality of Proceedings and Records ............................................................................. 253
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Section 37. Non-liability for perjury or concealment or misrepresentation ....................................................... 254 Section 38. Sealing of Records ................................................. 254 Section 39. Prohibition Against Labeling ............................... 255 Section 40. Contempt Powers .................................................. 255 Section 41. Effectivity .............................................................. 255 RULE ON COMMITMENT OF CHILDREN [A.M. No. 02-1-19-SC] Section 1. Objective .................................................................. 256 Section 2. Interpretation ......................................................... 256 Section 3. Definition of Terms ................................................. 256 Section 4. Petition for Involuntary Commitment of a Child .............................................................................. 259 Section 5. Voluntary Commitment of a Child to an Institution or Individual ............................................ 265 Section 6. Petition for Commitment of a Disabled Child ....... 268 Section 7. Effectivity ................................................................ 270 RE: RULE ON VIOLENCE AGAINST WOMEN AND THEIR CHILDREN [A.M. No. 04-10-11-SC] Section 1. Applicability ............................................................ 271 Section 2. Construction ............................................................ 271 Section 3. Objectives ................................................................ 272 Section 4. Definitions ............................................................... 272 Section 5. Acts of violence against women and their children under R.A. No. 9262 ......................................... 276 Section 6. Remedies of offended party .................................... 278 PART I PETITION FOR PROTECTION ORDER Section 7. Form of Petition ...................................................... 278 Section 8. Who may file Petition ............................................. 279 Section 9. Where to file the petition ........................................ 279 Section 10. Contents of the petition ........................................ 280 Section 11. Reliefs available to the offended party ................ 281 Section 12. Duties of the clerk of court ................................... 283 Section 13. Exemption from payment of docket fee and other expenses .......................................................... 284 Section 14. Raffle in multi-sala courts .................................... 284 Section 15. Ex parte issuance of temporary protection order ................................................................................. 284
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Section 16. Notice where no temporary protection order is issued ex parte .................................................... 285 Section 17. Enforceability of protection order ........................ 286 Section 18. Duties of the law enforcement order .................... 286 Section 19. Duties of social worker ......................................... 286 Section 20. Opposition to petition ........................................... 287 Section 21. Effect of failure to file an opposition .................... 287 Section 22. Prohibited pleadings and motions ....................... 287 Section 23. Preliminary conference ......................................... 288 Section 24. Protection order issued after preliminary conference ........................................................................ 290 Section 25. Order for further hearing ..................................... 290 Section 26. Hearing .................................................................. 290 Section 27. Prohibited acts ...................................................... 291 Section 28. Availability of live-link television to eyewitnesses or victims ............................................... 291 Section 29. Period to decide ..................................................... 292 Section 30. Judgment .............................................................. 292 Section 31. Appeal .................................................................... 292 PART II APPLICATION FOR PROTECTION ORDER AS AN INCIDENT IN A CRIMINAL OR CIVIL ACTION AND OTHER REMEDIES Section 32. Applicability to applications for protection orders filed as incidents in civil or criminal cases ......... 292 Section 33. When petition may proceed separately from or be deemed instituted with criminal action ....... 293 Section 34. When petition may proceed separately from or be deemed instituted with the civil action ........ 293 Section 35. Prosecution of civil action for damages ............... 293 Section 36. Prosecution of criminal action .............................. 293 Section 37. Bond to keep the peace ......................................... 294 PART III COMMON PROVISIONS Section 38. Reproduction of evidence ...................................... 294 Section 39. Jurisdiction and venue for criminal actions or civil actions ..................................................... 294 Section 40. Privacy and confidentiality of proceedings .......... 295 PART IV BARANGAY PROTECTION ORDER Section 41. Venue ..................................................................... 295 Section 42. Where to file complaint for violation of a barangay protection order ............................................... 296
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Section 43. Procedure .............................................................. 296 Section 44. Issuance of protection order when warranted; contempt of court for violation .................... 297 Section 45. Effectivity .............................................................. 297 TITLE XI. SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW Family Code.............................................................................. 298 Chapter 1 SCOPE OF APPLICATION Chapter 2 SEPARATION IN FACT Judicial Approval...................................................................... 299 Damages.................................................................................... 299 Proper Court ............................................................................. 299 Due Process............................................................................... 300 Preliminary Conference ........................................................... 300 Non-Appearance ....................................................................... 301 Ex-Parte Proceeding.................................................................. 301 Summary Proceeding................................................................ 301 Finality ..................................................................................... 302 Administration of Property...................................................... 302 Chapter 3 INCIDENTS INVOLVING PARENTAL AUTHORITY Verified Petitions...................................................................... 303 Venue......................................................................................... 303 Notification ............................................................................... 303 Proceedings ............................................................................... 304 Chapter 4 OTHER MATTERS SUBJECT TO SUMMARY PROCEEDINGS Other Cases............................................................................... 304 Judicial Declaration of Presumptive Death ........................... 305 FAMILY COURTS ACT [Republic Act No. 8369] Section 1. Title ......................................................................... 306 Section 2. Statement of National Policies................................ 306
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Section 3. Establishment of Family Courts ............................ 306 Section 4. Qualification and Training of Family Court Judges..................................................................... 307 Philippine Judicial Academy .......................................... 307 Section 5. Jurisdiction of Family Courts................................. 307 Habeas Corpus Involving Minors ................................... 309 Section 6. Use of Income........................................................... 309 Section 7. Special Provisional Remedies ................................ 310 Section 8. Supervision of Youth Detention Homes................. 310 Section 9. Social Services and Counseling Division ............... 310 Section 10. Social Services and Counseling Division Staff.................................................................... 311 Section 11. Alternative Social Services.................................... 311 Section 12. Privacy and Confidentiality of Proceedings......... 311 Section 13. Special Rules of Procedure.................................... 312 Section 14. Appeals................................................................... 312 Section 15. Appropriations....................................................... 312 Section 16. Implementing Rules and Regulations.................. 312 Section 17. Transitory Provisions............................................ 312 Section 18. Separability Clause............................................... 313 Section 19. Repealing Clause................................................... 313 Section 20. Effectivity............................................................... 313 JUVENILE JUSTICE AND WELFARE ACT OF 2006 [REPUBLIC ACT NO. 9344] TITLE I GOVERNING PRINCIPLES Chapter 1 Title, Policy and Definition of Terms Section 1. Short Title and Scope.............................................. 314 Section 2. Declaration of State Policy...................................... 314 Section 3. Liberal Construction of this Act.............................. 315 Section 4. Definition of Terms.................................................. 316
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Chapter 2 Principles in the Administration of Juvenile Justice and Welfare Section 5. Rights of the Child in Conflict with the Law......... 319 Section 6. Minimum Age of Criminal Responsibility.............. 321 Section 7. Determination of Age............................................... 321 TITLE II STRUCTURES IN THE ADMINISTRATION OF JUVENILE JUSTICE AND WELFARE Section 8. Juvenile Justice and Welfare Council (JJWC)....... 322 Section 9. Duties and Functions of the JJWC......................... 323 Section 10. Policies and Procedures on Juvenile Justice and Welfare.......................................................... 325 Section 11. Child Rights Center (CRC).................................... 325 TITLE III PREVENTION OF JUVENILE DELINQUENCY Chapter 1 The Role of the Different Sectors Section 12. The Family ............................................................ 325 Section 13. The Educational System........................................ 325 Section 14. The Role of the Mass Media.................................. 326 Section 15. Establishment and Strengthening of Local Councils for the Protection of Children........................... 326 Section 16. Appointment of Local Social Welfare and Development Officer................................................. 326 Section 17. The Sangguniang Kabataan................................. 326 Chapter 2 Comprehensive Juvenile Intervention Program Section 18. Development of a Comprehensive Juvenile Intervention...................................................................... 327 Section 19. Community-based Programs on Juvenile Justice and Welfare.......................................................... 327 TITLE IV TREATMENT OF CHILDREN BELOW THE AGE OF CRIMINAL RESPONSIBILITY Section 20. Children Below the Age of Criminal Responsibility................................................................... 328
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TITLE V JUVENILE JUSTICE AND WELFARE SYSTEM Chapter 1 Initial Contact with the Child Section 21. Procedure for Taking the Child into Custody...... 328 Section 22. Duties During Initial Investigation...................... 330 Chapter 2 Diversion Section 23. System of Diversion............................................... 330 Section 24. Stages Where Diversion may be Conducted......... 331 Section 25. Conferencing, Mediation and Conciliation........... 331 Section 26. Contract of Diversion............................................. 331 Section 27. Duty of the Punong Barangay when there is No Diversion................................................................. 332 Section 28. Duty of the Law Enforcement Officer when there is No Diversion....................................................... 332 Section 29. Factors in Determining Diversion Program......... 332 Section 30. Formulation of the Diversion Program................ 333 Section 31. Kinds of Diversion Programs................................ 333 Chapter 3 Prosecution Section 32. Duty of the Prosecutors Office.............................. 334 Section 33. Preliminary Investigation and Filing of Information....................................................................... 335 Chapter 4 Court Proceedings Section 34. Bail ........................................................................ 335 Section 35. Release on Recognizance....................................... 335 Section 36. Detention of the Child Pending Trial................... 335 Section 37. Diversion Measures............................................... 336 Section 38. Automatic Suspension of Sentence....................... 336 Section 39. Discharge of the Child in Conflict with the Law............................................................................. 336 Section 40. Return of the Child in Conflict with the Law to Court..................................................................... 337 Section 41. Credit in Service of Sentence................................ 337 Section 42. Probation as an Alternative to Imprisonment.... 337
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Chapter 5 Confidentiality of Records and Proceedings Section 43. Confidentiality of Records and Proceedings......... 337 TITLE VI REHABILITATION AND REINTEGRATION Section 44. Objective of Rehabilitation and Reintegration..... 338 Section 45. Court order required.............................................. 338 Section 46. Separate Facilities from Adults............................ 338 Section 47. Female Children.................................................... 339 Section 48. Gender-Sensitivity Training................................. 339 Section 49. Establishment of Youth Detention Homes........... 339 Section 50. Care and Maintenance of the Child in Conflict with the Law....................................................... 339 Section 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities......... 340 Section 52. Rehabilitation of Children in Conflict with the Law..................................................................... 340 Section 53. Youth Rehabilitation Center................................. 341 Section 54. Objectives of Community-Based Programs.......... 341 Section 55. Criteria of Community-Based Programs.............. 341 Section 56. After-Care Support Services for Children in Conflict with the Law.................................................. 342 TITLE VII GENERAL PROVISIONS Chapter 1 Exempting Provisions Section 57. Status Offenses...................................................... 342 Section 58. Offenses not Applicable to Children..................... 342 Section 59. Exemption from the Application of Death Penalty................................................................... 342 Chapter 2 Prohibited Acts Section 60. Prohibition against Labeling and Shaming......... 342 Section 61. Other Prohibited Acts............................................ 343
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Chapter 3 Penal Provision Section 62.Violation of the Provisions of this Act or Rules or Regulations in General................................. 343 Chapter 4 Appropriation Provision Section 63. Appropriations....................................................... 344 TITLE VIII TRANSITORY PROVISIONS Section 64. Children in Conflict with the Law fifteen (15) years old and below.......................................................... 344 Section 65. Children detained pending trial........................... 344 Section 66. Inventory of Locked-up and Detained Children in Conflict with the Law................................... 344 Section 67. Children who Reach the Age of eighteen (18) years Pending Diversion and Court Proceedings........... 345 Section 68. Children who have been Convicted and are Serving Sentence.............................................................. 345 TITLE IX FINAL PROVISIONS Section 69. Rule Making Power............................................... 345 Section 70. Separability Clause............................................... 345 Section 71. Repealing Clause................................................... 345 Section 72. Effectivity............................................................... 345 JUVENILE JUSTICE AND WELFARE COUNCIL [COUNCIL RESOLUTION NO. 4, SERIES OF 2006] PART I OVERALL PROVISIONS Rule 1. Title and Purpose......................................................... 346 Rule 2. Declaration of State Policy.......................................... 346 Rule 3. Construction................................................................. 348 Rule 4. Definition of Terms...................................................... 348 Rule 5. Rights of the child in conflict with the law................. 351 Rule 6. Principle of Restorative Justice................................... 353 Rule 7. Children of Indigenous Cultural Communities/ Indigenous Peoples (ICCs/IPs) ............................... 354
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PART II JUVENILE JUSTICE AND WELFARE COUNCIL Rule 8. Mandate........................................................................ 354 Rule 9. Composition.................................................................. 355 Rule 10. Administration and organization of the JJWC a. Attachment and administrative supervision......... 355 b. Chairperson of the JJWC........................................ 356 c. Organizational structure and staffing pattern...... 356 d. Designation of representatives to the JJWC.......... 357 Rule 11. Duties and functions of the JJWC............................. 357 a. Implementation of the Act...................................... 357 b. Advisory function..................................................... 358 c. Policy formulation and program development....... 358 d. Research and evaluation......................................... 358 e. Inspection................................................................. 359 f. Assistance to agencies............................................. 359 Rule 12. Coordination with the Court...................................... 360 Rule 13. Non-government organizations................................. 360 a. Designation of representatives............................... 360 b. Qualifications........................................................... 360 c. Term......................................................................... 360 Rule 14. Policies and procedures on juvenile justice............... 360 PART III LOCAL COUNCILS FOR THE PROTECTION OF CHILDREN Rule 15. Local Councils for the Protection of Children........... 361 a. Establishment.......................................................... 361 b. Funding for LCPCs.................................................. 362 c. Membership............................................................. 362 d. Duties and responsibilities of the LCPC................ 364 e. Responsibility of BCPC members........................... 366 PART IV PROGRAMS FOR JUVENILE INTERVENTION AND DELINQUENCY PREVENTION Rule 16. Concept/Principles in Intervention........................... 367 Rule 17. National Juvenile Intervention Program.................. 367 a. Development; Term................................................. 367 b. Components of the program.................................... 368 Rule 18. Comprehensive Juvenile Intervention Program...... 369 a. Development; Term................................................. 369
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b. Components............................................................. 369 c. Implementation....................................................... 369 d. Assessment............................................................... 370 Rule 19. Community-based programs as intervention........... 370 a. Objectives of community-based programs as intervention......................................................... 370 b. Formulation and implementation........................... 371 c. Programs and services for juvenile intervention.............................................................. 371 Rule 20. Role of different sectors in juvenile intervention and prevention............................................ 372 a. Family...................................................................... 372 b. Educational system................................................. 372 c. Mass media.............................................................. 374 PART V INITIAL CONTACT WITH THE CHILD Rule 21. Initial contact with the child..................................... 375 a. What constitutes initial contact.............................. 375 b. If initial contact by private citizens or non-law enforcement officers................................................. 375 Rule 22. Procedure for taking child into custody.................... 375 Rule 23. Initial investigation.................................................... 377 a. Nature and objective of the investigation.............. 377 b. Who conducts; who are present.............................. 377 c. How the statement of the child is taken ............... 377 d. Signing statements.................................................. 378 e. After taking the statement of the child above fifteen years of age................................................... 378 f. Report on initial investigation; what to record...... 379 Rule 24. Where the case shall be referred............................... 379 Rule 25. Turnover of custody.................................................... 380 Rule 26. Pending turnover of custody...................................... 381 Rule 27. Duty to maintain confidentiality and privacy.......... 381 Rule 28. Prohibited acts when in custody of child.................. 382 a. Detention.................................................................. 382 b. Search by an officer of the opposite sex.................. 382 c. Contact with adult offenders and offenders of opposite sex.......................................................... 382 d. Vulgar language....................................................... 382 e. Harassment and abuse............................................ 382 f. Display and use of instruments of force or restraint............................................................... 382
xxxv
g. Violence or unnecessary force................................. 383 h. Prohibitions also applicable to non-law enforcement officers........................................ 383 PART VI CRIMINAL RESPONSIBILITY Rule 29. Exemption from criminal liability............................. 383 a. Who are exempt....................................................... 383 b. Treatment of children exempt from criminal responsibility............................................................ 384 Rule 30. Age.............................................................................. 384 a. Who determines the age; when and how................ 384 b. In case of doubt; presumption of minority.............. 385 c. If age is contested.................................................... 385 Rule 31. Below the age of criminal responsibility................... 386 a. Immediate release of child; notify LSWDO............ 386 b. Custody of child below age of criminal responsibility............................................................ 386 c. Duty of the local social worker................................ 386 Rule 32. Petition for involuntary commitment....................... 387 Rule 33. Above the age of criminal responsibility................... 388 a. Still exempt.............................................................. 388 b. Unless acted with discernment............................... 388 Rule 34. Discernment............................................................... 388 a. Definition.................................................................. 388 b. Initial Assessment of discernment......................... 388 c. Basis for assessment of discernment...................... 389 d. After the assessment............................................... 389 e. Upon initial assessment of no discernment........... 389 f. Contesting the assessment of acting without discernment.............................................................. 390 PART VII INTERVENTION FOR CHILDREN EXEMPT FROM CRIMINAL LIABILITY Rule 35. Children in conflict with the law given intervention programs..................................................... 390 Rule 36. Factors in determining appropriate intervention programs..................................................... 390 Rule 37. Kinds of intervention programs................................ 391 Rule 38. Monitoring compliance............................................... 391 Rule 39. Failure to comply with intervention programs .......................................................................... 392
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PART VIII DIVERSION FOR CHILDREN WHO ACTED WITH DISCERNMENT Rule 40. Concept/principles of diversion.................................. 392 Rule 41. Who shall undergo; venue of diversion..................... 392 Rule 42. Where diversion may be conducted........................... 393 Rule 43. At the Katarungang Pambarangay Level................. 393 a. Diversion prior to entry to the criminal justice system........................................................... 393 b. Who conducts and assists........................................ 393 c. Nature of proceedings; participants....................... 394 d. Formulation and supervision of diversion program at the Barangay level............................... 394 e. Duty of Punong Barangay when there is no diversion.............................................................. 394 Rule 44. At the law enforcement level..................................... 395 a. When conducted at the law enforcement level....... 395 b. Who conducts and assists........................................ 395 c. Nature of proceedings; participants....................... 395 d. Duty of the law enforcement officer when there is no diversion.......................................................... 395 Rule 45. At the level of the LSWDO in case of victimless crimes.............................................................. 396 a. When diversion is conducted at the LSWDO level.... 396 b. Nature of proceedings.............................................. 396 Rule 46. At the court level........................................................ 396 Rule 47. Diversion proceedings................................................ 396 a. Duties of the authority conducting diversion proceedings............................................................... 396 b. Factors in determining if diversion is appropriate............................................................... 397 c. Conduct of diversion proceedings........................... 398 d. Custody pending diversion proceedings................. 398 e. Whose consent required; if not obtained................ 398 f. Length of proceedings; when terminated............... 398 Rule 48. Contract of diversion.................................................. 399 a. When entered; voluntary admission....................... 399 b. Admission not to be taken against the child.......... 399 c. Acceptance of contract; form and content............... 399 Rule 49. Formulation of the diversion program...................... 400 a. Factors considered in formulation.......................... 400 b. Kinds of diversion program.................................... 401 Rule 50. Community-based programs as diversion................. 402 a. Objectives of community-based diversion.............. 402
xxxvii
b. Development of diversion; assessment................... 402 c. Family participation................................................ 402 Rule 51. Compliance with diversion........................................ 403 a. Reporting obligations.............................................. 403 b. Supervision and monitoring................................... 403 c. Failure to comply..................................................... 403 Rule 52. Suspension of prescription......................................... 403 a. During diversion proceedings................................. 403 b. During diversion program....................................... 404 PART IX PROSECUTION Rule 53. When to proceed to preliminary investigation......... 404 Rule 54. Effort to divert............................................................ 404 Rule 55. Allegation of torture or ill-treatment........................ 404 Rule 56. Notice to the PAO....................................................... 404 Rule 57. Upon determination of probable cause..................... 405 Rule 58. If the child is deprived of liberty............................... 405 Rule 59. Special training of the prosecutor............................. 405 PART X COURT PROCEEDINGS Rule 60. Diversion measures.................................................... 405 Rule 61. Treatment of children pending trial.......................... 405 a. Alternatives to detention pending trial.................. 405 b. Detention as measure of last resort........................ 406 Rule 62. Bail.............................................................................. 406 Rule 63. Release on Recognizance............................................ 406 Rule 64. No jail detention......................................................... 406 Rule 65. Automatic suspension of sentence............................. 407 Rule 66. Disposition measures................................................. 407 Rule 67. Discharge of the Child in Conflict with the Law...... 407 Rule 68. Return of the Child in Conflict with the Law to Court.................................................................... 407 Rule 69. Credit in Service of Sentence..................................... 408 Rule 70. Probation as an Alternative to Imprisonment.......... 408 PART XI REHABILITATION AND REINTEGRATION Rule 71. Objective of rehabilitation and reintegration........... 408 Rule 72. Rehabilitation of children in conflict with the law... 409 Rule 73. Community-based programs for rehabilitation........ 409 a. Nature and objectives of community-based rehabilitation........................................................... 409
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b. Criteria in the development of programs for community-based rehabilitation............................. 410 c. Implementation of community-based rehabilitation programs.......................................... 410 d. Family Participation................................................ 411 e. Release of the child.................................................. 411 Rule 74. Institutional rehabilitation........................................ 411 a. Objectives of institutional rehabilitation............... 411 b. Where a child may be admitted for rehabilitation........................................................... 411 c. When a child may be placed in institutional rehabilitation........................................................... 412 d. Register of children admitted................................. 412 e. Social case study report and other documents....... 412 Rule 75. Treatment of children in institutional rehabilitation.................................................................... 412 a. Provision of a home environment........................... 412 b. Separate facilities from adults................................ 412 c. Treatment of female children in conflict with the law............................................................. 412 d. Gender-sensitivity training..................................... 413 Rule 76. Youth detention homes.............................................. 413 a. Nature...................................................................... 413 b. Objectives of Youth Homes..................................... 413 c. When placed in the custody of Youth Homes......... 413 d. Establishment of Youth Homes.............................. 414 e. Operation and Standards........................................ 414 f. Registration, Licensing and Accreditation of Youth Homes........................................................ 414 g. When and where to apply for accreditation........... 415 Rule 77. Youth Rehabilitation Center..................................... 415 a. Youth rehabilitation center and its services.......... 415 b. Limitations in mobility of residents....................... 416 c. Progress of the child in the center.......................... 416 d. Establishment of Youth Centers............................. 416 e. Registration, Licensing and Accreditation of LGU and NGO-managed Centers....................... 416 Rule 78. Expenses for care and maintenance of the child...... 416 a. Who assumes expenses............................................ 416 b. Determination of Standard Cost of Care and Maintenance..................................................... 417 c. Notification and Payment of Cost of Care and Maintenance..................................................... 417
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Rule 79. Agricultural camps and other training facilities...... 417 Rule 80. After-care support services........................................ 417 a. When given; period.................................................. 417 b. Nature and objectives.............................................. 418 c. Who develops and provides the services................. 418 PART XII CONFIDENTIALITY AND PRIVACY Rule 81. Right to confidentiality and privacy.......................... 418 Rule 82. Records and proceedings............................................ 419 Rule 83. Medical examination results..................................... 419 Rule 84. When records may be disclosed and to whom........... 419 Rule 85. Use of records in subsequent proceedings................ 419 Rule 86. Duty to uphold confidentiality................................... 419 Rule 87. Exemption from perjury and liability for concealment or misrepresentation.................................. 420 RULE XIII EXEMPTING PROVISIONS Rule 88. Status offenses, not punishable................................. 420 Rule 89. Offenses not applicable to children........................... 421 a. Exemption from prosecution................................... 421 b. Treatment of children exempt from transaction.... 421 Rule 90. Exemption from the Application of Death Penalty.. 421 PART XIV PROHIBITED ACTS AND PENAL PROVISION Rule 91. Labeling and Shaming............................................... 422 Rule 92. Acts of discrimination................................................ 422 Rule 93. Acts prejudicial and detrimental to the child........... 423 Rule 94. Other prohibited acts in the law............................... 423 Rule 95. Violation of the Provisions of the Act of these Rules or Regulations in General...................................... 424 PART XV BUDGET AND IMPLEMENTATION Rule 96. Initial funding............................................................ 424 Rule 97. Continued implementation........................................ 424 Rule 98. Funding for LCPC programs..................................... 424 Rule 99. Juvenile intervention programs................................ 424 Rule 100. Expenses for the Care and Maintenance of the Child in Conflict with the Law.............................. 425
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a. LGU responsibility to fund the childs care and maintenance..................................................... 425 b. If the child is not a resident of the LGU where the offense was committed...................................... 425 c. Determination of capacity to pay............................ 425 Rule 101. Youth detention homes............................................ 426 Rule 102. Youth rehabilitation centers.................................... 426 PART XVI DUTIES AND RESPONSIBILITIES OF DEPARTMENTS AND AGENCIES Rule 103. Department of Justice.............................................. 426 Rule 104. Department of Social Welfare and Development... 427 Rule 105. Department of Education......................................... 428 Rule 106. Department of Interior and Local Government...... 429 Rule 107. Council for the Welfare of Children........................ 430 Rule 108. Commission on Human Rights................................ 431 Rule 109. National Youth Commission.................................... 432 Rule 110. Coordinating Agencies............................................. 433 a. Bureau of Corrections.............................................. 433 b. Bureau of Jail Management and Penology............ 433 c. National Bureau of Investigation........................... 433 d. Parole and Probation Administration.................... 434 e. Philippine National Police...................................... 434 f. Public Attorneys Office........................................... 435 g. Technical Education and Skills Development Authority.................................................................. 435 Rule 111. Local Government Units.......................................... 436 Rule 112. Sangguniang Kabataan........................................... 437 Rule 113. Child Rights Center of the Commission on Human Rights............................................................. 438 PART XVII LOCAL SOCIAL WELFARE AND DEVELOPMENT OFFICER Rule 114. Appointment of Local Social Welfare and Development Officer................................................. 438 Rule 115. Duties and responsibilities...................................... 438 PART XVIII FINAL PROVISIONS Rule 116. Transitory Provisions............................................... 441 Rule 117. Repealing Clause...................................................... 441
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Rule 118. Separability Clause.................................................. 442 Rule 119. Effectivity................................................................. 442 APPENDICES APPENDIX A The Family Code of the Philippines (Executive Order No. 209).......................... 443 APPENDIX B Domestic Adoption Act (Republic Act No. 8552).............................. 508 APPENDIX C Checklist for Clerk of Court ...................... 520
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Court Procedures in Family Law Cases

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COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

Domingo vs. Court of Appeals, 226 SCRA 572. 33 SCRA 615.

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

GROUND 1. No-Parental Consent

PARTY TO FILE THE SUIT

3. Fraud 4. Vitiated Consent

Injured Party Injured Party

5. Incapability to Consummate/ Sexually transmissible disease

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

Sin vs. Sin, G.R. No. 137590, March 26, 2001.

COURT PROCEDURES IN FAMILY LAW CASES

Sahagun vs. Court of Appeals, G.R. No. 78328, June 3, 1991.

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

(2) Factual and legal issues to be litigated;

COURT PROCEDURES IN FAMILY LAW CASES

Mendoza vs. Court of Appeals, 19 SCRA 756.

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

Tolentino vs. Villanueva, 56 SCRA 1. 107 Phil. 35.

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

Sy vs. Court of Appeals, G.R. No. 127263, April 12, 2000.

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

Sec. 20. Appeal.

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

Article 195 of the Family Code.

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

COURT PROCEDURES IN FAMILY LAW CASES

RULE ON LEGAL SEPARATION

RULE ON LEGAL SEPARATION [A.M. No. 02-11-11-SC]

COURT PROCEDURES IN FAMILY LAW CASES

RULE ON LEGAL SEPARATION [A.M. No. 02-11-11-SC]

COURT PROCEDURES IN FAMILY LAW CASES

RULE ON LEGAL SEPARATION [A.M. No. 02-11-11-SC]

Ann. Cas, 1918B 487.

COURT PROCEDURES IN FAMILY LAW CASES

RULE ON LEGAL SEPARATION [A.M. No. 02-11-11-SC]

COURT PROCEDURES IN FAMILY LAW CASES

RULE ON LEGAL SEPARATION [A.M. No. 02-11-11-SC]

COURT PROCEDURES IN FAMILY LAW CASES

RULE ON LEGAL SEPARATION [A.M. No. 02-11-11-SC]

COURT PROCEDURES IN FAMILY LAW CASES

Articles 101 and 128 of the Family Code.

RULE ON LEGAL SEPARATION [A.M. No. 02-11-11-SC]

COURT PROCEDURES IN FAMILY LAW CASES