A Quick Remedy to Obtain Child Custody: File a Petition for Habeas Corpus

An Expeditious Remedy - Child Custody through a Petition for Habeas Corpus - Nicolas and De Vega Law Offices Image

When there is Urgency to Obtain Child Custody

Aside from filing a petition for rightful custody of a minor child, the person having the right to custody may resort to another way, and that is by filing a petition for habeas corpus.

What is peculiar with this petition is that if a writ is issued by the Supreme Court or Court of Appeals, the writ may be enforceable anywhere in the Philippines unlike in a petition for custody over a minor child where the judgment may only be enforceable within the judicial region to which the Family Court belongs.

It is settled that habeas corpus may be resorted to in cases where the rightful custody of any person is withheld from the person entitled thereto. In custody cases involving minors, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child.

Who has the right to custody over a minor child?

Parents of the minor child shall have the right to custody over their children. The right of custody accorded to parents spring from the exercise of parental authority.

Under the Family Code, the father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.

In case of absence or death of either parent, the parent present shall continue exercising parental authority. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent.

Illegitimate children shall be under the parental authority of the mother. Also, as to adopted children, the adopting parent shall have parental authority. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses.

In addition, Article 213 of the Family Code provides for the so-called tender-age presumption, stating that no child under seven [(7)] years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.

Petition for writ of habeas corpus involving custody of minors

A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. However, the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. The petition may also be filed with the appropriate regular courts in places where there are no Family Courts. The writ issued by the Family Court or the regular court shall be enforceable in the judicial region where they belong.

The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines.

The grant of the writ depends on the concurrence of the following requisites:

(1) that the petitioner has the right of custody over the minor;

(2) that the rightful custody of the minor is being withheld from the petitioner by the respondents; and

(3) that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondents.

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.

About Nicolas and De Vega Law Offices

If you need help regarding child custody, custody of a minor child, disputes on visitation rights, or have any questions or concerns regarding family law-related issues, we can help you. Nicolas and De Vega Law Offices is a full-service law firm in the Philippines.  You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines.  You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at info@ndvlaw.com. Visit our website https://ndvlaw.com/.


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