Professional Documents
Culture Documents
1: Applicability
petitions for custody of minors and writs of habeas corpus in relation thereto
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
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
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.
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.
16: HDO
Minor brought out of country:
Court order required HDO
(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.
19: Appeal
MR or new trial within 15 days from notice of judgment Notice of Appeal
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
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
Any day/time Enforceable anywhere in Phil. Returnable to: court / member / RTC / RTC judge 1. 2. RTC Judge of RTC
Contents:
1. Fact of restraint of liberty 2. Officer/person restraining his liberty
If unknown/uncertain: assumed appellation Person served = person intended
Clerk issue writ under seal of court Emergency: court to issue writ under his own hand
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.
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
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.
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