Professional Documents
Culture Documents
(1) Adoption is a juridical act which creates between two persons a relationship similar to that
which results from legitimate paternity (Prasnick vs. Republic, 98 Phil. 669).
(2) Adoption is a juridical act, a proceeding in rem, which creates between the two persons a
relationship similar to that which results from legitimate paternity and filiation.
(3) Adoption is not an adversarial proceeding. An adversarial proceeding is one having
opposing parties, contested, as distinguished from an ex parte application, one of which the party
seeking relief has given legal warning to the other party and afforded the latter an opportunity to
contest it excludes an adoption proceeding. In adoption, there is no particular defendant to speak
of since the proceeding involves the status of a person it being an action in rem.
Distinguish domestic adoption from inter-country adoption
Domestic Adoption
Inter-Country Adoption
A child legally available for adoption.Requisites: Only a legally free child may be
adopted.Requisites:
a)
Below 18 years of age; and
a) Below 15 years of age; and
b)
Judicially declared available for adoption.
b) Has been voluntarily or involuntarily
committed to the DSWD in accordance with PD
Exceptions:
603.
a)
Legitimate son/daughter of one spouse by
the other spouse;
b)
adopter;
c)
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.
1. Filipino Citizens
1)
Of legal age;
2)
In possession of full civil capacity and
legal rights;
3)
1. Filipino Citizens
1)
2)
Has the capacity to act and assume all
rights and responsibilities of parental authority
under Philippine laws;
4)
Has not been convicted of any crime
involving moral turpitude;
3)
Has undergone the appropriate counseling
from an accredited counselor in country of
domicile;
that country;
3)
His/her government allows the adoptee to 9)
Possesses all the qualifications and none
enter his/her country as his/her adopted
of the disqualifications provided in the ICAA and
son/daughter;
in other applicable Philippine laws;
4)
Has been living in the Philippines for at
least 3 continuous years prior to the filing of the
application for adoption and maintains such
residence until the adoption decree is entered;
and
1)
If one spouse seeks to adopt the legitimate
son/daughter of the other;
2)
If one spouse seeks to adopt his/her own
illegitimate son/daughter but the other spouse
must give his/her consent;
3)
If the spouses are legally separated from
each other.
Procedure
Procedure
d)
If successful, ICAB transmits a written
consent for the adoption to be executed by the
DSWD, and the applicant then files a petition for
adoption in his/her country.
Effects of adoption
(1) Transfer of parental authority except in cases where the biological parent is the spouse of
the adopter, the parental authority of the biological parents shall terminate and the same shall be
vested in the adopters (Sec. 16).
(2) 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 (Sec. 17).
(3)
Successional rights
(a) In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights
of succession without distinction from legitimate filiation (Sec. 18);
(b)
However, if the adoptee and his/her biological parent(s) had left a will, the law on
testamentary succession shall govern (Sec. 18);
(c) Art. 18(3) of the Family Code and Sec. 18, Art V of RA 8552 provide that the adoptee
remains an intestate heir of his/her biological parent (Obiter Dictum in In re In the Matter of
Adoption of Stephanie Naty Astorga Garcia, 454 SCRA 541).
(4)
(a) The adoption decree shall state the name by which the child is to be known (Sec. 13). An
amended certificate of birth shall be issued by the Civil Registry attesting to the fact that the
adoptee is the child of the adopter(s) by being registered with his/her surname (Sec. 14);
(b) 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. 14);
(c) All records, books, and papers relating to the adoption cases in the files of the court, the
DSWD, or any other agency or institution participating in the adoption proceedings shall be kept
strictly confidential and the court may order its release under the following conditions only: (1)
the disclosure of the information to a third person is necessary for purposes connected with or
arising out of the adoption; (2) the disclosure will be for the best interest of the adoptee; and (3)
the court may restrict the purposes for which it may be used (Sec. 15).
Instances when adoption may be rescinded
(1)
(a) Repeated physical and verbal maltreatment by the adopter(s) despite having undergone
counseling;
(b)
(c)
(d)
(2)
Prescriptive period:
(a)
If incapacitated within five (5) years after he reaches the age of majority;
(b) If incompetent at the time of the adoption within five (5) years after recovery from such
incompetency (Sec. 21, Rule on Adoption).
Effects of rescission of adoption
(1) Parental authority of the adoptees biological parent(s), if known, or the legal custody of
the DSWD shall be restored if the adoptee is still a minor or incapacitated;
(2) Reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be
extinguished;
(3) Cancellation of the amended certificate of birth of the adoptee and restoration of his/her
original birth certificate; and
(4) 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 (Sec. 20).
(1) An application to adopt a Filipino child shall be filed either with the Philippine Regional
Trial Court having jurisdiction over the child, or with the Board, through an intermediate agency,
whether governmental or an authorized and accredited agency, in the country of the prospective
adoptive parents, which application shall be in accordance with the requirements as set forth in
the implementing rules and regulations (Sec. 10).
Best Interest of the Minor Standard
(1) In case of custody cases of minor children, the court after hearing and bearing in mind the
best interest of the minor, shall award the custody as will be for the minors best interests.
(2) The totality of the circumstances and conditions as are most congenial to the survival,
protection, and feelings of security of the minor 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 minor.
Writ of Habeas Corpus (Rule 102)
(1) Writ of habeas corpus is a writ which has been esteemed to the best and only sufficient
defense of personal freedom having for its object the speedy release by judicial decree of persons
who are illegally restrained of their liberty, or illegally detained from the control of those who
are entitled to their custody (Ballentines Law Dictionary, 2nd Edition; Nava vs. Gatmaitan, 90
Phil. 172).
(2) 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. The function of the special proceeding of habeas
corpus is to inquire into the legality of ones detention. In all petitions for habeas corpus, the
court must inquire into every phase and aspect of the petitioners detention from the moment
petitioner was taken into custody up to the moment the court passes upon the merits of the
petition and only after such scrutiny can the court satisfy itself that the due process clause of the
Constitution has been satisfied. However, once the person detained is duly charged in court, he
may no longer question his detention by a petition for the issuance of a writ of habeas corpus.
His remedy then is the quashal of the information and/or the warrant of arrest duly issued. The
reason for the issuance of the writ even becomes more unavailing when the person detained files
a bond for his temporary release (Sec. 1; Bernarte vs. CA, 75 SCAD 400 [Oct. 18, 1996]).
(3) Habeas corpus may not be used as a means of obtaining evidence on the whereabouts of a
person, or as a means of finding out who has specifically abducted or caused the disappearance
of a certain person (Martinez vs. Dir. Gen. Mendoza, GR 153795, Aug. 17, 2006).
(4) The writs of habeas corpus and certiorari may be ancillary to each other where necessary
to give effect to the supervisory powers of the higher courts. A writ of habeas corpus reaches the
body and the jurisdictional matters, but not the record. A writ of certiorari reaches the record but
not the body. Hence, a writ of habeas corpus may be used with the writ of certiorari for the
purpose of review (Galvez vs. CA, 237 SCRA 685).
(5) The general rule is that the release, whether permanent or temporary, of a detained person
renders the petition for habeas corpus moot and academic, unless there are restraints attached to
his release which precludes freedom of action, in which case the Court can still inquire into the
nature of his involuntary restraint. Petitioners temporary release does not render the petition for
writ moot and academic (Villavicencio vs. Lukban, 39 Phil. 778).
(6)
(a) To inquire into the legality of an order of confinement by a court martial (Ogvir vs. Dir. of
Prisons, 80 Phil. 401);
(b) To test the legality of an aliens confinement and proposed expulsion from the Philippines
(Lao Tang Bun vs. Fabre, 81 Phil. 682);
(c) To enable parents to regain custody of a minor child, even if the latter be in the custody of
a third person of her own free will (Salvaa vs. Gaela, 55 Phil. 680);
(d) To obtain freedom for an accused confined for failure to post bail where the prosecuting
officer unreasonably delays trial by continued postponement (Conde vs. Rivera, 45 Phil. 650);
(e) To give retroactive effect to a penal provision favorable to the accused when the trial judge
has lost jurisdiction by virtue of the finality of the judgment of conviction (Rodriguez vs. Dir. of
Prisons, 57 Phil. 133);
(f)
(g) To permit an alien to land in the Philippines (The Huan vs. Collector of Customs, 54 Phil.
129);
(h) To put an end to an immoral situation, as when a minor girl, although preferring to stay
with her employer, maintains illicit relationship with him (Macazo vs. Nuez, L-12772, Jan. 24,
1956);
(i)
When a bond given by an accused entitled thereto is not admitted or excessive bail is
required of him (In re Dick, 38 Phil. 41);
(j)
(k) To determine the legality of the action of a legislative body in punishing a citizen for
contempt (Lopez vs. Delos Reyes, 55 Phil. 170);
(l)
To obtain freedom after serving minimum sentence when the penalty under an old law has
been reduced by an amendatory law.
Contents of the petition
(1) 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) The place where he is so imprisoned or restrained, if known;
(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. 3).
Peremptory writ
Preliminary citation
(a)
For asserting or vindicating denial of right to bail (Galvez vs. CA, 237 SCRA 685);
(b) For correcting errors in appreciation of facts or appreciation of law where the trial court
had no jurisdiction over the cause, over the person of the accused, and to impose the penalty
provided for by law, the mistake committed by the trial court, in the appreciation of the facts
and/or in the appreciation of the law cannot be corrected by habeas corpus (Sotto vs. Director of
Prisons, May 30, 1962);
(c) Once a person detained is duly charged in court, he may no longer file a petition for
habeas corpus. His remedy would be to quash the information or warrant (Rodriguez vs. Judge
Bonifacio, Nov. 26, 2000).
Writ of Amparo
entitled thereto.
Contents of verified
Contents of verified petition:a)
petition:a) Personal
Personal circumstances of
(a) That the person in whose circumstances of petitioner and petitioner and respondent;
behalf the application is made is of respondent responsible for the
Contents of return:a)
defenses;
Lawful
c) If the party is in his custody state: (1) verify the identity of information;
or power or is restrained by him, aggrieved; (2) recover and
and is not produced, particularly preserve evidence related to
d) Currency and accuracy of
the nature and gravity of the
death or disappearance of person data or information;
sickness or infirmity of such
identified in petition; (3) identify
party by reason of which he
witnesses and their statements; e) Other allegations relevant to
cannot, without danger, be
(4) determine cause, manner,
resolution of the proceedings.
brought before the court or
location and time of death or
judge;
disappearance as well as pattern * A general denial of the
or practice; (5) identify and
allegations in the petition is not
d) If he has had the party in his apprehend person/s involved in allowed.
the death/disappearance; (6)
custody or power, or under
bring suspected offenders before
restraint, and has transferred
a competent court.
such custody or restraint to
another, particularly to whom, at
what time, for what cause, and
by what authority such transfer
was made.
Effects of failure to file
Effects of failure to file
return:The court, justice or judge return:The court, justice or judge
shall proceed to hear the petition shall proceed to hear the petition
ex parte.
ex parte, granting the petitioner
such relief as the petition may
warrant unless the court in its
discretion requires petitioner to
submit evidence.
Procedure for hearing:The
Procedure for hearing:The
hearing on the petition shall be hearing on the petition shall be
summary. However the court,
summary. However the court,
justice or judge may call for a justice or judge may call for a
preliminary conference to
preliminary conference to
simplify the issues and
simplify the issues and
determine the possibility of
determine the possibility of
obtaining stipulations and
obtaining stipulations and
admissions from the parties.
admissions from the parties.
The hearing shall be from day to
day until completed and given
the same priority as petitions for
habeas corpus.
Interim reliefs available before
final judgment:a) Temporary
(Not applicable)
(5) Upon the filing of the verified answer of the expiration of the period to file it, the court
may order a social worker to make a case study of the minor and the parties and to submit a
report and recommendation to the court at least three days before the scheduled pre-trial (Sec. 8).
(6) 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
propio or upon application under oath may issue ex parte a hold departure order addressed to the
BID of the DOJ a copy of the hold departure order within 24 hours from its issuance and through
the fastest available means of transmittal (Sec.16).
Writ of Amparo (AM No. 07-9-12-SC)
Coverage; Distinguish from habeas corpus and habeas data; Who may file; Contents of
return; Effects of failure to file return; Procedure for hearing; Institution of separate
action; Effect of filing of a criminal action; Consolidation; Interim reliefs available to
petitioner and respondent; Quantum of proof in application for issuance of writ of Amparo
(1)
(1)
Rule 103
RA 9048
Rule 108
(h)
(i)
(j)
When one has continuously used and been known since childhood by a Filipino name and
was unaware of alien parentage;
(k) When the change is based on a sincere desire to adopt a Filipino name to erase signs of
former alienage, all in good faith and without prejudice to anybody; and
(l)
When the surname causes embarrassment and there is no showing that the desired change
of name was for a fraudulent purpose, or that the change of name would prejudice public interest
(Republic vs. Hernandez, 68 SCAD 279); Republic vs. Avila, 122 SCRA 483).
Absentees (Rule 107)
(1) Stages of absence:
(a)
provisional absence
(b)
declaration of absence
(c)
presumption of death
The following may file an application for the declaration of absence of a person:
(a)
Spouse present;
(b)
Heirs instituted in a will, who may present an authentic copy of the same;
(c)
(d) Those who have over the property of the absentee some right subordinated to the condition
of his death (Sec. 2).
(2) After the lapse of two (2) years from his disappearance and without any news about the
absentee or since the receipt of the last news, or of five (5) years in case the absentee has left a
person in charge of the administration of his property, the declaration of his absence and
appointment of a trustee or administrator may be applied for (Sec. 2).
(3) When a person disappears from his domicile, his whereabouts being unknown, and without
having left an agent to administer his property, or the power conferred upon the agent has
expired, any interested party, relative or friend, may petition the Court of First Instance of the
place where the absentee resided before his disappearance for the appointment of a person to
represent him provisionally in all that may be necessary (Sec. 1).
(2) The petition for change of first names or nicknames may be allowed when such names or
nicknames are ridiculous, tainted with dishonor or extremely difficult to write or pronounce; or
the new name or nickname has been used habitually and continuously petitioner and has been
publicly known by that first name or nickname in the community; or the change will avoid
confusion (Sec. 4, RA 9048).
(a) Ordinary appeal. The appeal to the CA in cases decided by the RTC in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the
judgment or final order appealed from and serving a copy thereof upon the adverse party. No
record on appeal shall be required except in special proceedings and other cases of multiple or
separate appeals where the law or the Rules so require. In such cases, the record on appeal shall
be filed and served in like manner.
(b) Petition for review. The appeal to the CA in cases decided by the RTC in the exercise of its
appellate jurisdiction shall be by petition for review in accordance with Rule 42.
(c) Petition for review on certiorari. In all cases where only questions of law are raised or
involved, the appeal shall be to the SC by petition for review on certiorari in accordance with
Rule 45.
Rule on Advance Distribution
(1) Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a
decedent, the court may, in its discretion and upon such terms as it may deem proper and just,
permit that such part of the estate as may not be affected by the controversy or appeal be
distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90
of these rules (Sec. 2).