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Custody of Minors

1: Applicability
petitions for custody of minors and writs of habeas corpus in relation thereto

2: Petition for Custody


Petitioner: any person claiming such right Respondent: party against whom it may be filed

3: Where to file petition


Family Court
Province/city
Where petitioner resides or where minory may be found

4: Contents
1. Personal circumstances: petitioner vs. respondent 2. Name/age/whereabouts: minor 3. Relationship of minor to petitioner & respondent 4. Material operative facts constituting deprivation of custody 5. Other relevant matters *with CNFS

5: Summons
If petition is sufficient in form and substance
Serve summons with copy of petition

6: MTD
Not allowed Except:
Lack of jurisdiction over subject matter Lack of jurisdiction over parties

Any other ground: raise as affirmative defense in the answer

7: Verified Answer
Answer
Personally verified Within 5 days after service of summons/petition

8: Case study
Order:
Social worker to make CASE STUDY of minor / parties Social worker to submit report/recommendation @ least 3 days before scheduled pre-trial
Upon filing of verified answer OR expiration of period to file it

9: Notice of mandatory pre-trial


15 days after filing of answer OR expiration of period to file answer Court to order:
Fix date of pre-trial Direct parties to file/serve pre-trial briefs PRESENT MINOR BEFORE THE COURT

10: Pre-trial brief


(a) A statement of the willingness of the parties to enter into agreements that may be allowed by law, indicating its terms; (b) A concise statement of their respective claims together with the applicable laws and authorities; (c) Admitted facts and proposed stipulations of facts; (d) The disputed factual and legal issues; (e) All the evidence to be presented, briefly stating or describing its nature and purpose; (f) The number and names of the witnesses and their respective affidavits which shall serve as the affiant's testimony on direct examination; and (g) Such other matters as the court may require to be included in the pretrial 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.

11: Effect of failure to appear at pretrial


Petitioner fails to appear: dismiss case Respondent fails to appear: ex parte

12: agreement / mediator


During pre-trial: agreement on custody Failure to agree: mediation If not settled: pre-trial conference

13: Provisional order*


Order of preference in award of custody:
1. 2.

Both parents jointly Either parent


All relevant considerations Choice of minor over 7 years and of sufficient discernment Unless: parent chosen is unfit

3.

Grandparent
Several grandparents Choice Unless: unfit

4.

Eldest brother/sister
Over 21 years Unless unfit/disqualified

5.

Actual custodian
Over 21 years Unless unfit/disqualified

6.

Any other person/institution suitable

14: Factors determining custody


1. Best interests of minor 2. Material and moral welfare

Best Interest of the Minor


1. 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. 2. least detrimental available alternative for safeguarding the growth and development of the minor.

Other factors
(a) Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor;

(b) The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent; (c) The health, safety and welfare of the minor; (d) Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent;

(e) The nature and frequency of contact with both parents; (f) Habitual use of alcohol, dangerous drugs or regulated substances; (g) Marital misconduct; (h) The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and (i) The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit.

15: Temporary Visitation Rights


GR: court to provide temporary visitation rights to non-custodial parent X: unfit/disqualified Notice (5 days): by temporary custodian to noncustodial parent/s
Change residence Plan to take out of residence for more than 3 days Does not prejudice visitation rights

16: HDO
Minor brought out of country:
Court order required HDO

17: Protection Order


(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.

18: Judgment
Award of custody Designation of custodian Support:
(1) the financial resources of the custodial and noncustodial 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.

Order to permit visit / temporary custody

19: Appeal
MR or new trial within 15 days from notice of judgment Notice of Appeal

20: Writ of habeas corpus


Family court
Enforceable within judicial region

Regular court: if presiding judge in Family court is absent Appropriate regular courts: if no family courts in place SC / CA / members enforceable anywhere Upon return of writ: court to decide issue on custody of minors

21: Confidentiality of proceedings


Hearings on custody of minors:
Closed to public At discretion of court

Records of cases:
Shall not be released to non-parties Without court approval

Rule 99

Habeas Corpus

Section 1: Extent
ALL CASES of ILLEGAL CONFINEMENT/DETENTION
By which any person is deprived of liberty By which rightful custody of any person is withheld from person entitled thereto

Except: as otherwise expressly provided by law

Section 2: who grants writ


1. 2. 3. 4. SC Member of SC CA Member of CA

Any day/time Enforceable anywhere in Phil. Returnable to: court / member / RTC / RTC judge 1. 2. RTC Judge of RTC

Returnable to himself Enforceable only within judicial district

Sec. 3: Requisites of Application


Application:
Petition Signed and verified Party:
For whose relief it is intended By some person on his behalf

Contents:
1. Fact of restraint of liberty 2. Officer/person restraining his liberty
If unknown/uncertain: assumed appellation Person served = person intended

3. Place of restraint (if known) 4. Copy of commitment or cause of detention


If procurable without impairing efficiency of remedy If without legal authority: such fact shall appear

Sec. 4: when writ not allowed


1. Custody under process, and
Issued by court /judge/judgment/order

2. Jurisdiction of court/judge to issue process


Even if jurisdiction appears after writ is allowed: no discharge based on defect in process.
No discharge: convicted of offense Suffering imprisonment under lawful judgment

Sec. 5: when writ must be granted/issued


Court to grant upon:
Petition Writ ought to issue

Clerk issue writ under seal of court Emergency: court to issue writ under his own hand

Sec. 6: to whom writ directed / what to require


Restraint by: officer Directed to: officer Command him to: produce body before court/judge Restraint by: person not officer Directed to: officer Command him to:
take and produce body before court/judge Summon restraining person Restraining person to show cause of imprisonment/restraint

Sec. 7: How prisoner designated and writ served


Designation of prisoner:
By name Otherwise described/identified

Where writ served: any province Who serves:


Sheriff / proper officer Person deputed by court/judge

Manner of service:
Leave original to person to whom it is directed Preserve 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.

8: how executed / returned


Execution:
Convey prisoner before judge Unless: from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or judge

Return:
Day Cause of caption/restraint

9: defect of form
Sufficiently appears: in whose custody or under whose restraint the party imprisoned or restrained is held

Sec. 10: contents of return


1. Whether he has or has not the party in his custody or power, or under restraint; 2. If yes: whole cause 3. If yes, but 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 4. If yes, but transferred custody: to whom, at what time, for what cause, and by what authority such transfer was made.

11: Return
Signed by: person who makes it Sworn to by him: if prisoner not produced In all other cases: by sworn public officer in his official capacity
Unless return is made

12: Hearing
Court to: hear & examine the return Order for safekeeping of prisoner Satisfied of proof: infirmity/sickness, if not produced
it is so grave that such person cannot be produced without danger, before proceeding to hear and dispose of the matter.

13: Return as evidence or plea


Custody under warrant of commitment in pursuance of law:
Return = prima facie evidence of cause of restraint

Restrained by private authority:


Return = plea of facts Party claiming custody = to prove such facts

14:
1. Lawfully committed 2. Charged in warrant of commitment: death ***Shall not be RELEASED. 1. Not so punishable ***recommitted upon discretion of court 1. Admitted to bail ***file bond ***Court to certify to proper court