CLAIMS AGAINST THE ESTATE(RULE 86 &88)

G.R. No. L-31364 March 30, 1979

MISAEL P. VERA,

vs.

HON. JOSE F. FERNANDEZ

Appeal from two orders of the Court of First Instance of Negros Occidental, Branch V in Special
Proceedings No. 7794, entitled: "Intestate Estate of Luis D. Tongoy," the first dated July 29, 1969
dismissing the Motion for Allowance of Claim and for an Order of Payment of Taxes by the
Government of the Republic of the Philippines against the Estate of the late Luis D. Tongoy, for
deficiency income taxes for the years 1963 and 1964 of the decedent in the total amount of P3,254.80,
inclusive 5% surcharge, 1% monthly interest and compromise penalties, and the second, dated October
7, 1969, denying the Motion for reconsideration of the Order of dismissal.

The Motion for allowance of claim and for payment of taxes dated May 28, 1969 was filed on June 3,
1969 in the abovementioned special proceedings, (par. 3, Annex A, Petition, pp. 1920, Rollo). The claim
represents the indebtedness to the Government of the late Luis D. Tongoy for deficiency income taxes
in the total sum of P3,254.80 as above stated, covered by Assessment Notices Nos. 11-50-29-1-11061-
21-63 and 11-50-291-1 10875-64, to which motion was attached Proof of Claim (Annex B, Petition, pp.
21-22, Rollo).

The Administrator opposed the motion solely on the ground that the claim was barred under Section
5, Rule 86 of the Rules of Court (par. 4, Opposition to Motion for Allowance of Claim, pp. 23-24, Rollo).

Finding the opposition well-founded, the respondent Judge, Jose F. Fernandez, dismissed the motion
for allowance of claim filed by herein petitioner, Regional Director of the Bureau of Internal Revenue,
in an order dated July 29, 1969 (Annex D, Petition, p. 26, Rollo).

On September 18, 1969, a motion for reconsideration was filed, of the order of July 29, 1969, but was
denied in an Order dated October 7, 1969.

Hence, this appeal on certiorari, petitioner assigning the following errors:

ISSUE:
whether or not the statute of non-claims Section 5, Rule 86 of the New Rule of Court, bars claim of the
government for unpaid taxes, still within the period of limitation prescribed in Section 331 and 332 of
the National Internal Revenue Code.

Section 5, Rule 86, as invoked by the respondent Administrator in hid Oppositions to the Motion for
Allowance of Claim, etc. of the petitioners reads as follows:

All claims for money against the decedent, arising from contracts, express or implied, whether the
same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness
of the decedent, and judgment for money against the decedent, must be filed within the time limited
in they notice; otherwise they are barred forever, except that they may be set forth as counter claims
in any action that the executor or administrator may bring against the claimants. Where the executor
or administrator commence an action, or prosecutes an action already commenced by the deceased in
his lifetime, the debtor may set forth may answer the claims he has against the decedents, instead of
presenting them independently to the court has herein provided, and mutual claims may be set off
against each other in such action; and in final judgment is rendered in favored of the decedent, the
amount to determined shall be considered the true balance against the estate, as though the claim has
been presented directly before the court in the administration proceedings. Claims not yet due, or
contingent may be approved at their present value.

A perusal of the aforequoted provisions shows that it makes no mention of claims for monetary
obligation of the decedent created by law, such as taxes which is entirely of different character from
the claims expressly enumerated therein, such as: "all claims for money against the decedent arising
from contract, express or implied, whether the same be due, not due or contingent, all claim for funeral
expenses and expenses for the last sickness of the decedent and judgment for money against the
decedent."

In the case of Commissioner of Internal Revenue vs. Ilagan Electric & Ice Plant, et al., G.R. No. L-23081,
December 30, 1969, it was held that the assessment, collection and recovery of taxes, as well as the
matter of prescription thereof are governed by the provisions of the National Internal revenue Code,
particularly Sections 331 and 332 thereof, and not by other provisions of law. (See also Lim Tio, Dy
Heng and Dee Jue vs. Court of Tax Appeals & Collector of Internal Revenue, G.R. No. L-10681, March 29,
1958). Even without being specifically mentioned, the provisions of Section 2 of Rule 86 of the Rules of
Court may reasonably be presumed to have been also in the mind of the Court as not affecting the
aforecited Section of the National Internal Revenue Code.

In the case of Pineda vs. CFI of Tayabas, 52 Phil. 803, it was even more pointedly held that "taxes
assessed against the estate of a deceased person ... need not be submitted to the committee on claims
in the ordinary course of administration. In the exercise of its control over the administrator, the court
may direct the payment of such taxes upon motion showing that the taxes have been assessed against
the estate." The abolition of the Committee on Claims does not alter the basic ruling laid down giving
exception to the claim for taxes from being filed as the other claims mentioned in the Rule should be
filed before the Court. Claims for taxes may be collected even after the distribution of the decedent's
estate among his heirs who shall be liable therefor in proportion of their share in the inheritance.
(Government of the Philippines vs. Pamintuan, 55 Phil. 13).

The reason for the more liberal treatment of claims for taxes against a decedent's estate in the form of
exception from the application of the statute of non-claims, is not hard to find. Taxes are the lifeblood of
the Government and their prompt and certain availability are imperious need. (Commissioner of Internal
Revenue vs. Pineda, G. R. No. L-22734, September 15, 1967, 21 SCRA 105). Upon taxation depends the
Government ability to serve the people for whose benefit taxes are collected. To safeguard such
interest, neglect or omission of government officials entrusted with the collection of taxes should not be
allowed to bring harm or detriment to the people, in the same manner as private persons may be made
to suffer individually on account of his own negligence, the presumption being that they take good care
of their personal affairs. This should not hold true to government officials with respect to matters not of
their own personal concern. This is the philosophy behind the government's exception, as a general rule,
from the operation of the principle of estoppel. (Republic vs. Caballero, L-27437, September 30, 1977,
79 SCRA 177; Manila Lodge No. 761, Benevolent and Protective Order of the Elks Inc. vs. Court of
Appeals, L-41001, September 30, 1976, 73 SCRA 162; Sy vs. Central Bank of the Philippines, L-41480,
April 30,1976, 70 SCRA 571; Balmaceda vs. Corominas & Co., Inc., 66 SCRA 553; Auyong Hian vs. Court of
Tax Appeals, 59 SCRA 110; Republic vs. Philippine Rabbit Bus Lines, Inc., 66 SCRA 553; Republic vs.
Philippine Long Distance Telephone Company, L-18841, January 27, 1969, 26 SCRA 620; Zamora vs.
Court of Tax Appeals, L-23272, November 26, 1970, 36 SCRA 77; E. Rodriguez, Inc. vs. Collector of
Internal Revenue, L- 23041, July 31, 1969, 28 SCRA 119.) As already shown, taxes may be collected even
after the distribution of the estate of the decedent among his heirs (Government of the Philippines vs.
Pamintuan, supra; Pineda vs. CFI of Tayabas, supra Clara Diluangco Palanca vs. Commissioner of Internal
Revenue, G. R. No. L-16661, January 31, 1962).

Furthermore, as held in Commissioner of Internal Revenue vs. Pineda, supra, citing the last paragraph of
Section 315 of the Tax Code payment of income tax shall be a lien in favor of the Government of the
Philippines from the time the assessment was made by the Commissioner of Internal Revenue until
paid with interests, penalties, etc. By virtue of such lien, this court held that the property of the estate
already in the hands of an heir or transferee may be subject to the payment of the tax due the estate. A
fortiori before the inheritance has passed to the heirs, the unpaid taxes due the decedent may be
collected, even without its having been presented under Section 2 of Rule 86 of the Rules of Court. It
may truly be said that until the property of the estate of the decedent has vested in the heirs, the
decedent, represented by his estate, continues as if he were still alive, subject to the payment of such
taxes as would be collectible from the estate even after his death. Thus in the case above cited, the
income taxes sought to be collected were due from the estate, for the three years 1946, 1947 and 1948
following his death in May, 1945.
Even assuming arguendo that claims for taxes have to be filed within the time prescribed in Section 2,
Rule 86 of the Rules of Court, the claim in question may be filed even after the expiration of the time
originally fixed therein, as may be gleaned from the italicized portion of the Rule herein cited which
reads:

Section 2. Time within which claims shall be filed. - In the notice provided in the preceding section, the
court shall state the time for the filing of claims against the estate, which shall not be more than twelve
(12) nor less than six (6) months after the date of the first publication of the notice. However, at any
time before an order of distribution is entered, on application of a creditor who has failed to file his
claim within the time previously limited the court may, for cause shown and on such terms as are
equitable, allow such claim to be flied within a time not exceeding one (1) month. (Emphasis supplied)

In the instant case, petitioners filed an application (Motion for Allowance of Claim and for an Order of
Payment of Taxes) which, though filed after the expiration of the time previously limited but before an
order of the distribution is entered, should have been granted by the respondent court, in the absence
of any valid ground, as none was shown, justifying denial of the motion, specially considering that it was
for allowance Of claim for taxes due from the estate, which in effect represents a claim of the people at
large, the only reason given for the denial that the claim was filed out of the previously limited period,
sustaining thereby private respondents' contention, erroneously as has been demonstrated.

WHEREFORE, the order appealed from is reverse. Since the Tax Commissioner's assessment in the total
amount of P3,254.80 with 5 % surcharge and 1 % monthly interest as provided in the Tax Code is a final
one and the respondent estate's sole defense of prescription has been herein overruled, the Motion
for Allowance of Claim is herein granted and respondent estate is ordered to pay and discharge the
same, subject only to the limitation of the interest collectible thereon as provided by the Tax Code. No
pronouncement as to costs.

SO ORDERED.

G. Actions by and against executors and administrators – Rules 87 & 89

G.R. No. 129008 January 13, 2004

TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted by her husband ZALDY EVANGELISTA,

ALBERTO ORFINADA, and ROWENA O. UNGOS, assisted by her husband BEDA UNGOS, petitioners,

vs.
COURT OF APPEALS, ESPERANZA P. ORFINADA, LOURDES P. ORFINADA, ALFONSO ORFINADA, NANCY
P. ORFINADA, ALFONSO JAMES P. ORFINADA, CHRISTOPHER P. ORFINADA and ANGELO P. ORFINADA,
respondents.

Whether the heirs may bring suit to recover property of the estate pending the appointment of an
administrator is the issue in this case. Yes

On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in Angeles City leaving several personal
and real properties located in Angeles City, Dagupan City and Kalookan City.

He also left a widow, respondent Esperanza P. Orfinada, whom he married on July 11, 1960 and with
whom he had seven children who are the herein respondents, namely: Lourdes P. Orfinada, Alfonso
"Clyde" P. Orfinada, Nancy P. Orfinada-Happenden, Alfonso James P. Orfinada, Christopher P. Orfinada,
Alfonso Mike P. Orfinada (deceased) and Angelo P. Orfinada.4

Apart from the respondents, the demise of the decedent left in mourning his paramour and their
children. They are petitioner Teodora Riofero, who became a part of his life when he entered into an
extra-marital relationship with her during the subsistence of his marriage to Esperanza sometime in
1965, and co-petitioners Veronica, Alberto and Rowena.

On November 14, 1995, respondents Alfonso James and Lourdes Orfinada discovered that on June 29,
1995, petitioner Teodora Rioferio and her children executed an Extrajudicial Settlement of Estate of a
Deceased Person with Quitclaim involving the properties of the estate of the decedent located in
Dagupan City and that accordingly, the Registry of Deeds in Dagupan issued Certificates of Titles Nos.
63983, 63984 and 63985 in favor of petitioners Teodora Rioferio, Veronica Orfinada-Evangelista, Alberto
Orfinada and Rowena Orfinada-Ungos.

Respondents also found out that petitioners were able to obtain a loan of P700,000.00 from the Rural
Bank of Mangaldan Inc. by executing a Real Estate Mortgage over the properties subject of the extra-
judicial settlement.

On December 1, 1995, respondent Alfonso "Clyde" P. Orfinada III filed a Petition for Letters of
Administration docketed as S.P. Case No. 5118 before the Regional Trial Court of Angeles City, praying
that letters of administration encompassing the estate of Alfonso P. Orfinada, Jr. be issued to him.

On December 4, 1995, respondents filed a Complaint for the Annulment/Rescission of Extra Judicial
Settlement of Estate of a Deceased Person with Quitclaim, Real Estate Mortgage and Cancellation of
Transfer Certificate of Titles with Nos. 63983, 63985 and 63984 and Other Related Documents with
Damages against petitioners, the Rural Bank of Mangaldan, Inc. and the Register of Deeds of Dagupan
City before the Regional Trial Court, Branch 42, Dagupan City.

On February 5, 1996, petitioners filed their Answer to the aforesaid complaint interposing the defense
that the property subject of the contested deed of extra-judicial settlement pertained to the
properties originally belonging to the parents of Teodora Riofero10 and that the titles thereof were
delivered to her as an advance inheritance but the decedent had managed to register them in his
name. Petitioners also raised the affirmative defense that respondents are not the real parties-in-
interest but rather the Estate of Alfonso O. Orfinada, Jr. in view of the pendency of the administration
proceedings.

On April 29, 1996, petitioners filed a Motion to Set Affirmative Defenses for Hearing on the aforesaid
ground.

The lower court denied the motion in its Order14 dated June 27, 1996, on the ground that
respondents, as heirs, are the real parties-in-interest especially in the absence of an administrator
who is yet to be appointed in S.P. Case No. 5118. Petitioners moved for its reconsideration but the
motion was likewise denied.16

This prompted petitioners to file before the Court of Appeals their Petition for Certiorari under Rule 65
of the Rules of Court docketed as CA G.R. S.P. No. 42053. Petitioners averred that the RTC committed
grave abuse of discretion in issuing the assailed order which denied the dismissal of the case on the
ground that the proper party to file the complaint for the annulment of the extrajudicial settlement of
the estate of the deceased is the estate of the decedent and not the respondents.

The Court of Appeals rendered the assailed Decision dated January 31, 1997, stating that it discerned
no grave abuse of discretion amounting to lack or excess of jurisdiction by the public respondent
judge when he denied petitioners’ motion to set affirmative defenses for hearing in view of its
discretionary nature.

A Motion for Reconsideration was filed by petitioners but it was denied. Hence, the petition before this
Court.

ISSUE:

whether the heirs have legal standing to prosecute the rights belonging to the deceased subsequent
to the commencement of the administration proceedings.

RULING: YES
Pending the filing of administration proceedings, the heirs without doubt have legal personality to
bring suit in behalf of the estate of the decedent in accordance with the provision of Article 777 of the
New Civil Code "that (t)he rights to succession are transmitted from the moment of the death of the
decedent." The provision in turn is the foundation of the principle that the property, rights and
obligations to the extent and value of the inheritance of a person are transmitted through his death to
another or others by his will or by operation of law.

Even if administration proceedings have already been commenced, the heirs may still bring the suit if
an administrator has not yet been appointed. This is the proper modality despite the total lack of
advertence to the heirs in the rules on party representation, namely Section 3, Rule 3 and Section 2,
Rule 87 of the Rules of Court.

Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz: (1) if the
executor or administrator is unwilling or refuses to bring suit; and (2) when the administrator is alleged
to have participated in the act complained of and he is made a party defendant.

Evidently, the necessity for the heirs to seek judicial relief to recover property of the estate is as
compelling when there is no appointed administrator, if not more, as where there is an appointed
administrator but he is either disinclined to bring suit or is one of the guilty parties himself.

All told, therefore, the rule that the heirs have no legal standing to sue for the recovery of property of
the estate during the pendency of administration proceedings has three exceptions, the third being
when there is no appointed administrator such as in this case.

As the appellate court did not commit an error of law in upholding the order of the lower court,
recourse to this Court is not warranted.

WHEREFORE, the petition for review is DENIED. The assailed decision and resolution of the Court of
Appeals are hereby AFFIRMED. No costs.

ESCHEAT PROCEEDINGS (RULE 91)

C. Remedy of respondent against petition; period for filing a claim
G.R. No. L-44347 September 29, 1988

VICENTE TAN, petitioner,

vs.

CITY OF DAVAO, respondent.

This 26-year old case involves what is probably now a valuable lot in the City of Davao whose owner left
for China with her entire family in 1923 and never returned. Like all such estates facing escheat
proceedings, it is fair game for poseurs and fakers claiming to be the missing heir of the deceased
owner.

The spouses Cornelia Pizarro and Baltazar Garcia, during their lifetime, were residents of Davao City.
As they were childless, they adopted a three-year old girl whom they named Dominga Garcia and
brought up as their own.

At the age of nineteen years, Dominga Garcia married a Chinaman, Tan Seng alias Seng Yap, with
whom she had three children, named Vicente, who was born in 1916, Mariano who was born in 1918,
and Luis who was born in 1921.

In 1923, Dominga Garcia and her three children emigrated to Canton, China. In less than a year, Tan
Seng followed his family to his country of origin.

According to the petitioner, Dominga Garcia died intestate in 1955 (Extra-judicial Settlement of the
Estate of Dominga Garcia dated May 27, 1966, p. 8, Rollo). She left in the Philippines a 1,966-square-
meter lot on Claveria Street, Townsite of Davao, District of Davao, registered in her name under T.C.T.
No. 296 (T-2774) of the Registry of Deeds of Davao City. Since her departure for China with her family,
neither she, nor her husband, nor any of their children has returned to the Philippines to claim the lot.

Dominga's adoptive parent, Cornelia Pizarro, died in May 1936. In 1948, her nephew, Ramon Pizarro,
occupied a part of Dominga's property and collected the rentals from the owners of other houses
occupying the land. Another nephew of Cornelia, Segundo Reyes, in a burst of civic spirit, informed the
Solicitor General about the property. The City Fiscal and NBI agents, Antonio Gonzaga and Felix
Valencia, investigated Segundo Reyes, Ramon Pizarro and Aurelio Pizarro regarding the whereabouts of
Dominga Garcia, Tan Seng, and their children.

During the investigation, Ramon Pizarro alleged that Vicenta Tan, daughter of Dominga, was married
and living in Bacolod City, but he did not know her exact address. Aurelio Pizarro, on the other hand,
controverted that statement because as far as he knew, Vicenta Tan left for China with her mother and
brothers in 1923.
On September 12,1962, the City of Davao filed a petition in the Court of First Instance of Davao,
Branch I (Special Civil Case No. 1220) to declare Dominga Garcia's land escheated in its favor. It alleged
that Dominga Garcia and her children are presumed to be dead and since Dominga Garcia left no heir
person by law entitled to inherit her estate, the same should be escheated pursuant to Rule 92 of the
Rules of Court (pp. 1-5, Record on Appeal).

Ramon Pizarro opposed the escheat petition on the ground that courts are not authorized to declare
that a person is presumed to be dead and that Dominga Garcia's being in Red China is not a sufficient
ground to deprive her of her property by escheat proceedings (pp. 8-9, Record on Appeal).

On June 15, 1966, Pizarro filed a motion to dismiss the escheat petition (pp. 13-15, Record on Appeal),
but he withdrew his motion three days later (p. 15, Record on Appeal).

The trial court found that Pizarro's testimonies "ring with untruthfulness; they are replete with
inconsistencies" (p. 17, Record on Appeal) and the witnesses who corroborated him were "unworthy
of belief" (p. 198, Record on Appeal).

On March 23, 1972, the trial court rendered judgment whose dispositive portion is quoted below:

WHEREFORE, the land in the name of Dominga Garcia covered by Transfer Certificate of Title No. 296 (T-
2774) of the Register of Deeds of Davao City, as well as the rentals thereon, shall escheat and the same
are hereby assigned to the City of Davao for the benefit of public schools and public charitable
institutions and centers in the said city.

Ramon Pizarro shall make an accounting of the income he collected from himself and those who are
occupying the land from the time he took possession of it in 1936 when his aunt Cornelia Pizarro died
until the City of Davao takes possession of the property and shall deliver the same to the city.

Ramon Pizarro shall likewise deliver to the City of Davao the owner's duplicate of Transfer Certificate of
Title No. 296 (T-2774) which is in his possession, without costs. (p. 198, Record on Appeal.)

Pizarro appealed to the Court of Appeals (CA-G.R. No. L-51786-R). He passed away on June 16, 1975
during the pendency of the appeal.
On August 19,1975, a certain Luis Tan, alias Chen Yek An claiming to be the long missing son of
Dominga Garcia, filed a motion for intervention in the Court of Appeals. He alleged that he had been
living in mainland China; that he failed to come to the trial because of a government prohibition barring
his entry to the Philippines; that after diplomatic relations with China were restored, he returned to this
country to oppose the escheat proceedings on the properties of his mother, Dominga Garcia.

The City of Davao opposed the motion for intervention for tardiness. The Court of Appeals disallowed
it because the trial had long been terminated, and the intervention, if allowed, would unduly delay
the adjudication of the rights of the original parties

(p. 26, Rollo).

On April 2, 1976, the Court of Appeals affirmed the appealed decision of the trial court. Vicenta Tan
and/or her attorney-in-fact, Ramon Pizarro, appealed by petition for certiorari to this Court, alleging
that the Court of Appeals erred:

ISSUES:

1. in ruling that the city of Davao had personality to file the escheat petition; and

2. in declaring that petitioner Vicenta Tan may be presumed dead.

RULING: NO

Ramon Pizarro, the alleged administrator of Dominga Garcia's property, was not a real party in
interest. He had no personality to oppose the escheat petition.

We find no merit in the petition for review.

With respect to the argument that only the Republic of the Philippines, represented by the Solicitor-
General, may file the escheat petition under Section 1, Rule 91 of the Revised (1964) Rules of Court, the
Appellate Court correctly ruled that the case did not come under Rule 91 because the petition was
filed on September 12,1962, when the applicable rule was still Rule 92 of the 1940 Rules of Court
which provided:

Sec. 1. When and by whom,petition filed.—When a person dies intestate, seized of real or personal
property in the Philippines, leaving no heirs or person by law entitled to the same, the municipality or
city where the deceased last resided, if he resided in the Philippines, or the municipality or city in which
he had estate if he resided out of the Philippines, may file a petition in the court of first instance of the
province setting forth the facts, and praying that the estate of the deceased be declared escheated.
(Emphasis supplied.)

Rule 91 of the Revised rules of Court, which provides that only the Republic of the Philippines,
through the Solicitor General, may commence escheat proceedings, did not take effect until January 1,
1964. Although the escheat proceedings were still pending then, the Revised Rules of Court could not be
applied to the petition because to do so would work injustice to the City of Davao. Rule 144 of the 1964
Rules of Court contains this "saving" clause:

These rules shall take effect on January 1, 1964. They shall govern all cases brought after they take
effect, and also all further proceedings in cases pending, except to the extent that in the opinion of the
court, their application would not be feasible or would work injustice, in which event the former
procedure shall apply.

The Court of Appeals should have dismissed the appeal of Vicenta Tan and Ramon Pizarro earlier
because the records show that Vicenta was never a party in the escheat proceedings. The trial court's
order dated February 4, 1972 ordering that she be substituted for Ramon Pizarro as oppositor (p. 16,
Record on Appeal) was set aside by the same court in its Order of March 23, 1972 (p. 178, Record on
Appeal) which was not appealed.

Vicenta Tan, if she still exists, was never served with summons extra-territorially under Section 17, Rule
14 of the Rules of Court. She never appeared in the trial court by herself, or counsel and never filed a
pleading therein, hence, she never submitted to the court's jurisdiction.

Every action must be prosecuted and defended in the name of the real party-in-interest (Sec. 2, Rule 3,
Rules of Court; Ferrer vs. Villamor, 60 SCRA 106; Filipinas Industrial Corp. vs. San Diego, 23 SCRA 706; 1
Moran 144). Ramon Pizarro, the alleged administrator of Dominga Garcia's property, was not a real
party in interest. He had no personality to oppose the escheat petition.

The Court of Appeals did not err in affirming the trial court's ruling that Dominga Garcia and her heirs
may be presumed dead in the escheat proceedings as they are, in effect, proceedings to settle her
estate. Indeed, while a petition instituted for the sole purpose of securing a judicial declaration that a
person is presumptively dead cannot be entertained if that were the only question or matter involved in
the case, the courts are not barred from declaring an absentee presumptively dead as an incident of,
or in connection with, an action or proceeding for the settlement of the intestate estate of such
absentee.
Direct evidence proving that Dominga Garcia, her husband and her children are in fact dead, is not
necessary. It may be presumed under Article 390 of the New Civil Code which provides:

ART. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he
shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence
of ten years ...

The Court of Appeals found that the City of Davao was able to prove the facts from which the
presumption arises. It said:

... Its evidence preponderantly shows that in 1923 Dominga Garcia and her family left the Philippines
bound for China. Since then until the instant petition was filed on September 12, 1962, a period covering
about 39 years, nothing had been heard about them. It is not known whether all or any of them is still
alive at present. No heir, devisee or any other person entitled to the estate of Dominga Garcia has
appeared and claimed the same up to this time except Luis Tan whose status as alleged heir has still to
be proven in the proper court.

The assertion of appellant Pizarro that in 1960 he met and talked with Vicenta Tan in Claveria, Davao
City, before she went to China, and again in 1966, when he went to Hongkong, was not believed by the
court below. After assessing and evaluating the evidence, we find no sufficient cause to disturb the
conclusion of the trial court made on a finding of fact based on conflicting testimony and depending
largely upon the credibility of witnesses who testified before it. In our review of the evidence, we have
not come across any material fact or circumstance which the court a quo has overlooked and failed to
consider, or has misunderstood and misapplied, and which if properly appreciated and accurately were
held would change the result of this litigation.

For one thing, if it is true that Vicenta Tan left the Philippines only in 1960, as oppositor Pizarro would
like the court to believe, it has not been explained why he omitted to secure copies of her departure
papers from either the Department of Foreign Affairs, the Bureau of Immigration or the former Chinese
Embassy, and present them to the court to establish her existence as late as 1960.

For another, if it is also true that he met her in Hongkong in 1966, we are at a loss why he failed to
arrange for her return to the Philippines. We do not believe it would have been difficult to do so,
considering that she had been a resident of this country for more than 40 years and had been absent for
only about six years and that her return was imperative on account of a court action against her
property which required her personal presence. But even if this were impossible, oppositor Pizarro
would not be left without any other remedy. He could have arranged for the taking of her deposition in
Hongkong by means of letters rogatory under Sections 11 and 12, Rule 24 of the Revised Rules of Court,
in the same manner that, according to him, he arranged their meeting in the Crown Colony sometime in
1966.

The unexplained failure of oppositor Pizarro to take advantage of any of these remedies available to
him heavily tilts the scale against the credibility of his claim.

(pp. 30-31, Rollo.)

These factual findings of the Court of Appeals are binding on Us. They may not be disturbed in this
petition for review where only legal questions may be raised

(Sec. 2, Rule 45).

WHEREFORE, finding no reversible error in the decision of the Court of Appeals in CA-G.R. No. 51786-R,
the petition for review is denied for lack of merit.

SO ORDERED.

RULE 91-ESCHEAT PROCEEDINGS

G.R. No. 143483 January 31, 2002

REPUBLIC OF THE PHILIPPINES represented by the REGISTER OF DEEDS OF PASAY CITY, petitioner,

vs.

COURT OF APPEALS (SPECIAL FORMER 3RD DIVISION) AND AMADA H. SOLANO, assisted by her
husband ROMEO SOLANO, respondents.

This petition for certiorari seeks to nullify two (2) Resolutions of the Court of Appeals dated 12
November 1998 and 4 May 2000 giving due course to the petition for annulment of judgment filed by
private respondent Amada H. Solano on 3 February 1997 and denying petitioner's motion for
reconsideration.
For more than three (3) decades (from 1952 to 1985) private respondent Amada Solano served as the
all-around personal domestic helper of the late Elizabeth Hankins, a widow and a French national.
During Ms. Hankins' lifetime and most especially during the waning years of her life, respondent Solano
was her faithful girl Friday and a constant companion since no close relative was available to tend to her
needs.

In recognition of Solano's faithful and dedicated service, Ms. Hankins executed in her favor two (2)
deeds of donation involving two (2) parcels of land covered by TCT Nos. 7807 and 7808 of the Registry
of Deeds. Private respondent alleged that she misplaced the deeds of donation and were nowhere to
be found.

While the deeds of donation were missing, the Republic filed a petition for the escheat of the estate
of Elizabeth Hankins before the Regional Trial Court of Pasay City.

During the proceedings, a motion for intervention was filed by Romeo Solano, spouse of private
respondent, and one Gaudencio Regosa, but on 24 June 1987 the motion was denied by the trial court
for the reason that "they miserably failed to show valid claim or right to the properties in question."2
Since it was established that there were no known heirs and persons entitled to the properties of
decedent Hankins, the lower court escheated the estate of the decedent in favor of petitioner
Republic of the Philippines.

By virtue of the decision of the trial court, the Registry of Deeds of Pasay City cancelled TCT Nos. 7807
and 7808 and issued new ones, TCT Nos. 129551 and 129552, both in the name of Pasay City.

In the meantime, private respondent claimed that she accidentally found the deeds of donation she
had been looking for a long time.

In view of this development, respondent Amada Solano filed on 28 January 1997 a petition before the
Court of Appeals for the annulment of the lower court's decision alleging, among other, that -

13.1. The deceased Elizabeth Hankins having donated the subject properties to the petitioner in 1983
(for TCT No. 7807) and 1984 (for TCT No. 7808), these properties did not and could not form part of her
estate when she died on September 20, 1985. Consequently, they could not validly be escheated to
the Pasay City Government;

13.2. Even assuming arguendo that the properties could be subject of escheat proceedings, the decision
is still legally infirm for escheating the properties to an entity, the Pasay City Government, which is not
authorized by law to be the recipient thereof. The property should have been escheated in favor of the
Republic of the Philippines under Rule 91, Section 1 of the New Rules of Court x x x x
On 17 March 1997 the Office of the Solicitor General representing public respondents RTC and the
Register of Deeds (herein petitioner) filed an answer setting forth their affirmative defenses, to wit: (a)
lack of jurisdiction over the nature of the action; and, (b) the cause of action was barred by the statute
of limitations.

Finding no cogent reason to justify the dismissal of the petition for annulment, the Court of Appeals
issued on 12 November 1998 the first of its assailed Resolutions giving due course to the petition for
annulment of judgment and setting the date for trial on the merits. In upholding the theory of
respondent Solano, the Appeals Court ruled that -

Herein petitioner invokes lack of jurisdiction over the subject matter on the part of respondent RTC to
entertain the escheat proceedings x x x because the parcels of land have been earlier donated to
herein petitioner in 1983 and 1984 prior to the death of said Hankins; and therefore, respondent court
could not have ordered the escheat of said properties in favor of the Republic of the Philippines,
assign them to respondent Pasay City government, order the cancellation of the old titles in the name
of Hankins and order the properties registered in the name of respondent Pasay City x x x x The 1997

Rules of Civil Procedure specifically laid down the grounds of annulment filed before this Court, to wit:
extrinsic fraud and lack of jurisdiction. Jurisdiction over the subject matter is conferred by law and this
jurisdiction is determined by the allegations of the complaint. It is axiomatic that the averments of the
complaint determine the nature of the action and consequently the jurisdiction of the courts. Thus
whether or not the properties in question are no longer part of the estate of the deceased Hankins at
the time of her death; and, whether or not the alleged donations are valid are issues in the present
petition for annulment which can be resolved only after a full blown trial x x x x

It is for the same reason that respondent’s espousal of the statute of limitations against herein
petition for annulment cannot prosper at this stage of the proceedings. Indeed, Section 4, Rule 91 of
the Revised Rules of Court expressly provides that a person entitled to the estate must file his claim
with the court a quo within five (5) years from the date of said judgment. However, it is clear to this
Court that herein petitioner is not claiming anything from the estate of the deceased at the time of her
death on September 20, 1985; rather she is claiming that the subject parcels of land should not have
been included as part of the estate of the said decedent as she is the owner thereof by virtue of the
deeds of donation in her favor.

In effect, herein petitioner, who alleges to be in possession of the premises in question, is claiming
ownership of the properties in question and the consequent reconveyance thereof in her favor which
cause of action prescribes ten (10) years after the issuance of title in favor of respondent Pasay City on
August 7, 1990. Herein petition was seasonably filed on February 3, 1997 under Article 1144, to wit:
Art. 1144. The following actions must be brought within ten years from the time the right of action
accrues: (1) Upon a written contract; (2) Upon an obligation created by law; (3) Upon a judgment.

And Article 1456, to wit:

Art. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit of the person from whom the property comes.4

In its Resolution of 4 May 2000 the Court of Appeals denied the motion for reconsideration filed by
public respondents Register of Deeds of Pasay City and the Presiding judge of the lower court and set
the trial on the merits for June 15 and 16, 2000.

ISSUE:

1.Does herein private respondent, not being an heir but allegedly a donee, have the personality to be
a claimant within the purview of Sec. 4, Rule 91, of the Revised Rules of Court?

WHETHER OR NOT THE LOWER COURT ERRED (b) in giving due course to private respondent's petition
for annulment of decision despite the palpable setting-in of the 5-year statute of limitations within
which to file claims before the court a quo set forth in Rule 91 of the Revised Rules of Court and Art.
1014 of the Civil Code.

RULING: NO

ARGUMENTS:

Petitioner argues that the lower court had jurisdiction when it escheated the properties in question in
favor of the city government and the filing of a petition for annulment of judgment on the ground of
subsequent discovery of the deeds of donation did not divest the lower court of its jurisdiction on the
matter. It further contends that Rule 47 of the 1997 Rules of Civil Procedure only provides for two (2)
grounds for the annulment of judgment, namely: extrinsic fraud and lack of jurisdiction. As such the
discovery of the deeds of donation seven (7) years after the finality of the escheat proceedings is an
extraneous matter which is clearly not an instance of extrinsic fraud nor a ground to oust the lower
court of its jurisdiction.
Petitioner also insists that notwithstanding the execution of the deeds of donation in favor of private
respondent, the 5-year statute of limitations within which to file claims before the court a quo as set
forth in Rule 91 of the Revised Rules of Court has set in.

The present controversy revolves around the nature of the parcels of land purportedly donated to
private respondent which will ultimately determine whether the lower court had jurisdiction to declare
the same escheated in favor of the state.

DISCUSSION:

We rule for the petitioner. Escheat is a proceeding, unlike that of succession or assignment, whereby the
state, by virtue of its sovereignty, steps in and claims the real or personal property of a person who dies
intestate leaving no heir. In the absence of a lawful owner, a property is claimed by the state to forestall
an open "invitation to self-service by the first comers."

Since escheat is one of the incidents of sovereignty, the state may, and usually does, prescribe the
conditions and limits the time within which a claim to such property may be made. The procedure by
which the escheated property may be recovered is generally prescribed by statue, and a time limit is
imposed within which such action must be brought.

In this jurisdiction, a claimant to an escheated property must file his claim "within five (5) years from
the date of such judgment, such person shall have possession of and title to the same, or if sold, the
municipality or city shall be accountable to him for the proceeds, after deducting the estate; but a claim
not made shall be barred forever."The 5-year period is not a device capriciously conjured by the state
to defraud any claimant; on the contrary, it is decidedly prescribed to encourage would-be claimants to
be punctilious in asserting their claims, otherwise they may lose them forever in a final judgment.

Incidentally, the question may be asked: Does herein private respondent, not being an heir but allegedly
a donee, have the personality to be a claimant within the purview of Sec. 4, Rule 91, of the Revised Rules
of Court? In this regard, we agree with the Solicitor General that the case of Municipal Council of San
Pedro, Laguna v. Colegio de San Jose, Inc., is applicable at least insofar as it concerns the Court's
discussion on who is an "interested party" in an escheat proceeding -

In a special proceeding for escheat under sections 750 and 751 the petitioner is not the sole and
exclusive interested party. Any person alleging to have a direct right or interest in the property sought
to be escheated is likewise an interested party and may appear and oppose the petition for escheat. In
the present case, the Colegio de San Jose, Inc. and Carlos Young appeared alleging to have a material
interest in the Hacienda de San Pedro Tunasan; the former because it claims to be the exclusive owner
of the hacienda, and the latter because he claims to be the lessee thereof under a contract legally
entered with the former (underscoring supplied).
In the instant petition, the escheat judgment was handed down by the lower court as early as 27 June
1989 but it was only on 28 January 1997, more or less seven (7) years after, when private respondent
decided to contest the escheat judgment in the guise of a petition for annulment of judgment before
the Court of Appeals. Obviously, private respondent's belated assertion of her right over the escheated
properties militates against recovery.

A judgment in escheat proceedings when rendered by a court of competent jurisdiction is conclusive

against all persons with actual or constructive notice, but not against those who are not parties or
privies thereto.

In the mind of this Court the subject properties were owned by the decedent during the time that the
escheat proceedings were being conducted and the lower court was not divested of its jurisdiction to
escheat them in favor of Pasay City notwithstanding an allegation that they had been previously
donated. We recall that a motion for intervention was earlier denied by the escheat court for failure to
show "valid claim or right to the properties in question."

Where a person comes into an escheat proceeding as a claimant, the burden is on such intervenor to
establish his title to the property and his right to intervene. A fortiori, the certificates of title covering
the subject properties were in the name of the decedent indicating that no transfer of ownership
involving the disputed properties was ever made by the deceased during her lifetime. In the absence
therefore of any clear and convincing proof showing that the subject lands had been conveyed by
Hankins to private respondent Solano, the same still remained, at least before the escheat, part of the
estate of the decedent and the lower court was right not to assume otherwise.

The Court of Appeals therefore cannot perfunctorily presuppose that the subject properties were no
longer part of the decedent's estate at the time the lower court handed down its decision on the
strength of a belated allegation that the same had previously been disposed of by the owner. It is
settled that courts decide only after a close scrutiny of every piece of evidence and analyze each case
with deliberate precision and unadulterated thoroughness, the judgment not being diluted by
speculations, conjectures and unsubstantiated assertions.

WHEREFORE, the petition is GRANTED. The assailed Resolution of the Court of Appeals dated 12
November 1998 giving due course to the petition for annulment of judgment, and its Resolution dated 4
May 2000 denying petitioner's motion for reconsideration, are SET ASIDE. The decision of the RTC-Br.
114, Pasay City, dated 27 June 1989, is REINSTATED.

SO ORDERED.

E. Extent of authority of trustee

G.R. No. 109307 November 25, 1999
TEODORA SALTIGA DE ROMERO

vs.

THE HONORABLE COURT OF APPEALS

The facts as found by the Court of Appeals are as follows:

From the evidence presented by the appellants, it appears that on December 12, 1939 Eugenio Romero
bought from spouses Celedonio Jaug and Sofia Macan the latter's "rights, interest, participation,
ownership and possession" of 12 hectares of land. The land in question was then public land. When
Eugenio Romero applied for a homestead patent for said land, the same was disapproved by the
Bureau of Lands because said Romero already had applied for a homestead patent for 24 hectares and
was disqualified from owning the additional 12 hectares.

Eugenio Romero placed the application in the name of his eldest son, Eutiquio Romero, allegedly in
trust for all the children of Eugenio. When Eutiquio got married and had children, his brothers and
sisters got worried that his heirs may claim the land so the application was transferred in the name of
Lutero Romero, the second son of Eugenio who was then still single. When Lutero in turn got married,
he relinquished the application in favor of his younger brother Ricardo through an instrument dated July
5, 1952.

The spouses Eugenio Romero and Teodora Saltiga had nine (9) children. Other than the three (3) sons
aforenamed, they had six (6) daughters, namely Generosa, Diosdada, Mindalina, Lucita, Presentacion
and Gloriosa.

Eugenio Romero died sometime in 1948. In 1961 his widow Teodora caused the land in question to be
subdivided among six (6) of her children, the other three (3) having already been given their shares in
the other properties of the Romero spouses. The twelve (12) hectares were supposedly divided equally
among Lutero, Ricardo, Mindalina, Lucita, Presentacion, and Gloriosa who all got about two (2) hectares
each. Subsequently, however, Ricardo conveyed his share to Lucita and Gloriosa who therefore had 3
hectares each. On the other hand, Mindalina left her share in the care of her mother Teodora and her
sister Presentacion because she left for Davao City. Lutero later requested that he be allowed to farm
this share of Mindalina, thus he occupied a total of 4 hectares with the consent of his mother Teodora
and sister Presentacion.

The appellants further claimed that after the partition, they had been in occupancy of their respective
shares through their tenants.
However, appellee Lutero Romero presented evidence to the effect that sometime in 1969 a policeman
picked him up and brought him to the office of Mayor Pablito Abragan of Kapatagan where he found his
mother Teodora and his three (3) sisters Gloriosa, Presentacion and Lucita and the respective husbands
of the latter two. He testified that when he arrived at the office, he was presented three (3) affidavits for
his signature. Said affidavits were to the effect that he sold three (3) hectares each out of the 12
hectares of land to his sister Gloriosa, his brother-in-law Sabdullah Mama married to Presentacion
Romero, and to Meliton Pacas married to Lucita Romero for a consideration of P3,000.00 each.

Appellee Lutero Romero testified that he told the mayor that he was not selling the land and that he
could not do so because the five-year period had not yet elapsed but the mayor told him to just sign
the affidavits because after five (5) years his sisters will get the land and pay for them and that if they
would not pay, the mayor will take steps to return the land personally to him. Lutero stated that he
has not been paid for the land by his sisters.

Lutero Romeo claimed that as early as 1940-1941 he had already been in occupancy of the 12 hectares
in question when it was shown to him by this father who owned the adjoining parcel; and that the said
land had been titled in his name even while his father Eugenio was still alive. Indeed it appears that the
title to the property, O.C.T No. P-2,261, had been issued to Lutero Romero as early as April 26, 1967,
after the homestead patent was issued in his favor on April 7, 1967. He said that his three (3) sisters
occupied portions of the property only in 1969, after he was forced to sign the affidavits by Mayor
Abragan.

Lutero Romero had thereafter repudiated the three (3) affidavits on August 12, 1974. Because of this,
estafa charges were filed against him by the three (3) parties concerned but said charges were
dismissed.

It further appears that Lutero Romero obtained a loan from the Development Bank of the Philippines
on December 3, 1975 and mortgaged the land in question as collateral for said loan. Appellants claim
that only then did they know that the land had been titled in the name of Lutero Romero. Thereafter,
through a letter dated August 2, 1976, Lutero Romero asked his sisters to vacate the land in question.

A few days thereafter, or on August 14, 1976, Civil Case No. 591 was filed against Lutero Romero. 2

On March 11, 1991, the RTC rendered a decision the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered:

1. Declaring the three (3) affidavits of sale as null and void and no effect;

2. Ordering the plaintiffs in Civil Case No. 591 and defendants in Civil Case No. 1056, namely Sabdullah
Mama, Presentation Romero-Mama Gloriosa Romero Rasonable, Meliton Pacas and Lucita Romero to
surrender and to deliver to Lutero Romero the possession of all the portions of Lot 23, Pls-35;

3. Ordering the Municipal Assessor of Kapatagan, Lanao del Norte to cancel Tax Declaration Nos.
6029, 6030, 6031 and 6032 in the names of defendants (Civil Case No. 1056) Sabdullah Mama, Gloriosa
Rasonable, plaintiff Lutero Romero and defendant Meliton Pacas and to restore Tax Declaration No.
1347 in the name of Lutero Romero for the entire Lot 23, Pls-35;

4. Ordering the defendants (Civil Case No. 1056) to pay to the plaintiff the sum of TEN THOUSAND
(P10,000.00) PESOS as actual damages;

5. Ordering the defendants (Civil Case no. 1056) to pay to the plaintiffs the sum of TEN THOUSAND
(P10,000.00) Pesos as moral damages; and

6. Ordering the defendants (Civil Case No. 1056) to pay the cost of this proceeding.

SO ORDERED. 3

Not satisfied with the decision of the RTC, petitioners appealed to the Court of Appeals, which
affirmed the decision of the RTC in favor of LUTERO. Hence this petition where the petitioners assign
the following issues:

ISSUE:

WHETHER OR NOT LUTERO ROMERO IS A TRUSTEE OF LOT 23 PLS-35 FOR THE BENEFIT OF THE HEIRS
OF EUGENIO ROMERO.

RULING:

ARGUMENTS:

Petitioners contend that LUTERO merely holds Lot 23 Pls-35 in trust for the benefit of the heirs of his
father EUGENIO since it was actually EUGENIO who first applied for the homestead but considering
that EUGENIO was already granted a homestead, the application had to be placed in the name of his
eldest son EUTIQUIO. The application was subsequently transferred to the name of LUTERO who later
transferred the application in the name of Ricardo Romero (RICARDO), his younger brother. To support
their contention, petitioners point to the testimony of LUTERO during the investigation of the
homestead application of RICARDO to the effect that he transferred and relinquished his rights as
trustee of the lot to RICARDO. The fact that LUTERO was able to cause the issuance of the Homestead
title of the land in question under his name clearly shows that LUTERO employed fraud in procuring
the same. Consequently, herein petitioners are entitled to recover the said lot. Petitioners also rely on
the three affidavits of sale executed by LUTERO wherein he sold portions of Lot 23 Pls-35 in favor of
GLORIOSA, PRESENTACION and her husband and LUCITA and her husband. They claim that pursuant to
these three affidavits, LUTERO no longer has a claim over Lot 23 Pls-35. 6

On the other hand, respondents maintain that LUTERO did not commit fraud in the titling of Lot 23
Pls-35. They allege that the petitioners failed to prove this during the trial of the case. On the contrary,
LUTERO complied with all the requirements of the law when he successfully obtained title to the lot.
Respondents also deny that LUTERO held the land in trust for the benefit of the heirs of his father
EUGENIO. According to them, this violates the provisions of The Public Land Act. Even assuming that a
trust in fact was created, such is null and void for being contrary to law. Finally, respondents maintain
that the three affidavits of sale executed in favor of the petitioners are void since they were simulated
and not supported by any consideration; and they were executed within the five-year prohibitory period
from the issuance of the patent.

The Court of Appeals ruled in favor of LUTERO, stating:

Appellants herein maintain that the land was held by Lutero Romero, only in trust for his brothers and
sisters because the land belonged to their father Eugenio Romero. We do not find any basis for this
posture. Eugenio Romero was never the owner of the land in question because all he bought from the
Jaug spouses were the alleged rights and interests, if there was any, to the said land which was then
part of the public domain. The Jaugs could not have sold said land to Eugenio as they did not own it.
Eugenio Romero was not granted, and could not have been granted, a patent for said land because he
was disqualified by virtue of the fact that he already had applied for the maximum limit of 24 hectares to
which he was entitled. The land in question could not therefore have passed on from him to his children.

On the other hand, Lutero Romero applied for a homestead patent over the land in question and his
application was duly approved. The appellants have not established that there was any fraud
committed in this application. In fact it appears that there was even a hearing conducted by the Bureau
of Lands on the application because a certain Potenciano Jaug had been contesting the application.
Under the presumption of law, that official duty has been regularly performed, there appears to be no
ground to question the grant of the patent to Lutero Romero in 1967.
His sisters Gloriosa, Presentacion, and Lucita apparently recognized Lutero's ownership of the property
when in 1969 they sought the help of the mayor of Kapatagan to convince Lutero to execute affidavits of
sale in their favor. However, Lutero could not have sold any portion of the property to them. Any such
sale executed within five (5) year period from the date of the issuance of the title is null and void even if
the sale was made by the homesteader in favor of his/her descendants (Gayapano vs. IAC, 199 SCRA
309). Furthermore, it has been established that the three supposed vendees never paid any
consideration for the supposed sale of the lots they occupied.

We agree with the observation of the appellee that under the theory of the appellants, the latter had
sought to circumvent the law. It would appear that because Eugenio Romero could not legally qualify to
have the land in question, he had allegedly sought to place the application in another's name with the
same intention to own it through another. This certainly cannot be countenanced. 8

We find no reversible error committed by the Court of Appeals.

The core issue in this case is whether LUTERO acquired Lot 23 Pls-35 in trust for the benefit of the
heirs of EUGENIO.

"A trust is the legal relationship between a person having an equitable ownership in property and
another person owning the legal title to such property, the equitable ownership of the former
entitling him to performance of certain duties and the exercise of certain powers by the latter." 9
Trust relations between parties may be express or implied. 10 Express trusts are those which are created
by the direct and positive acts of the parties, by some writing or deed, or will, or by words evidencing an
intention to create a trust. 11 Implied trusts are those which without being express, are deducible from
the nature of the transaction as matters of intent, or which are superinduced on the transaction by
operation of law as a matter of equity, independently of the particular intention of the parties. 12
Implied trusts may either be resulting or constructive trusts, both coming into by operation of law.

Resulting trusts are based on the equitable doctrine that valuable consideration and not legal title
determines the equitable title or interest and are presumed always to have been contemplated by the
parties. They arise from the nature or circumstances of the consideration involved in a transaction
whereby one person thereby becomes invested with legal title but is obligated in equity to hold his legal
title for the benefit of another.

On the other hand, constructive trusts are created by the construction of equity in order to satisfy the
demands of justice and prevent unjust enrichment. They arise contrary to intention against one who, by
fraud, duress or abuse of confidence, obtains or hold the legal right to property, which he ought not, in
equity and good conscience, to hold. 13
However, it has been held that a trust will not be created when, for the purpose of evading the law
prohibiting one from taking or holding real property, he takes a conveyance thereof in the name of a
third person.

In the present case, the petitioners did not present any evidence to prove the existence of the trust.
Petitioners merely alleged that LUTERO, through fraudulent means, had the title of Lot 23 Pls-35
issued in his name contrary to the alleged agreement between the family that LUTERO would merely
hold the lot in trust for the benefit of EUGENIO's heirs. The alleged agreement was not proven and
even assuming that the petitioners duly proved the existence of the trust, said trust would be of
doubtful validity considering that it would promote a direct violation of the provisions of the Public
Land Act as regards the acquisition of a homestead patent.

A homestead applicant is required by law to occupy and cultivate the land for his own benefit, and not
for the benefit of someone else. 15 Furthermore, under Section 12 of The Public Land Act (CA 141), a
person is allowed to enter a homestead not exceeding twenty-four (24) hectares. In the present case, it
is not disputed that EUGENIO already applied for a homestead patent for twenty-four (24) hectares of
land and was disqualified from applying for an additional twelve (12) hectares. If we uphold the theory
of the petitioners and rule that a trust in fact existed, we would be abetting a circumvention of the
statutory prohibitions stated under the Public Land Act. We therefore find no legal or factual basis to
sustain the contention of the petitioners that LUTERO merely held Lot 23 Pls-35 in trust for the benefit
of the heirs of EUGENIO.

EXTENT OF AUTHORITY OF A TRUSTEE

GR. No. 129368 August 25, 2003

LAND BANK OF THE PHILIPPINES

vs.

THE HON. COURT OF APPEALS, MAMERTA B. RODRIGUEZ, SPS. ARMANDO and ZENAIDA STA ANA, EL
OBSERVATORIO DE MANILA INCORPORADA, SPS. WILFREDO and AURORA POSADAS, REGINALD F.
FRANCISCO, BIENVENIDO L. MACEDA, SPS. HECTOR and MATILDE MENDOZA and EUGENIO V.
ROMILLO, Respondents.

Before this Court is a petition for certiorari under Rule 65 of the Revised Rules of Court which seeks to
annul and set aside the Decision1 and Resolution of the Court of Appeals in CA-G.R. CV Nos. 12533-35
dated November 12, 1996 and April 14, 1997, respectively, reversing the Order2 of the Regional Trial
Court of Makati City, Branch 136, in Special Proceedings Cases Nos. M-108, M-125 and M-126.
 THE ANTECEDENTS

Manotoc Securities, Inc. (MSI) was a duly licensed broker and dealer in securities, doing business and
operating under the provisions of the Securities Act. The Insular Bank of Asia and America (IBAA) and the
Land Bank of the Philippines (LBP) are private commercial banking corporations duly authorized to
operate as trust companies.

IBAA and MSI offered and sold securities to the public. Among the purchasers were private
respondents Mamerta B. Rodriguez, the Spouses Armando and Zenaida Sta. Ana, El Observatorio de
Manila, Incorporada, Spouses Wilfredo and Aurora Posadas, Reginald F. Francisco, Bienvenido L.
Maceda, Spouses Hector and Matilde Mendoza, and Eugenio V. Romillo. As evidence of their purchases,
the private respondents executed individual investment agreements with MSI.

Under the said agreements, MSI undertook to invest funds primarily in a portfolio of certain specified
securities for fixed periods of time, and to return upon maturity the funds of the investors and their
corresponding share in the income of the same. As security for compliance of its undertaking with
private respondents, MSI, as the investment agent of the private respondents, delivered qualified
securities to the IBAA. Thus, on August 19, 1976, MSI and IBAA executed a custodianship agreement in
which the latter was constituted as custodian bank of the investment portfolio/collateral pool of
securities of the private respondents with corresponding duties and responsibilities thereunder
defined, some of which are as follows:

g) To sell out the portfolio in whole or in part upon failure by the Company to deliver additional
securities as provided for in Section 2.03 hereof, up to an amount that would at least equal to the
maximum security value of the Custodian Receipt outstanding and to hold such proceeds from the sale
as part of the portfolio under cash accounts until duly claimed (i) by the Company upon presentation of
additional qualified securities or cancellation of custodian receipts or (ii) the Investor upon failure of the
Company to make such presentation, upon proper presentation of the Investment Agreement together
with the Custodian Receipt.

h) To do and perform such other acts and things as the Company may, by any future instrument in
writing delivered to the Custodian, require of the Custodian, provided that such other acts and things
are germane to the intent and purpose of this Agreement.

In case of default by the investment agent, the custodian bank as its attorney-in-fact was authorized to
sell so much of the qualified securities held in the portfolio and to apply the proceeds thereof, thus:
Section 5.03. Sale of Securities Portfolio

The Company, by adhesion to this Agreement in the manner herein provided, shall be deemed as
having expressly in (sic) irrevocably constituted and appointed the Custodian, as its true and lawful
attorney-in-fact, with full power and authority, upon the occurrence of an event of default, to perform
the following:

a) To sell so much of the qualified securities held in the portfolio as may be necessary to satisfy the
amounts due and payable whether by term or by declaration or otherwise such sale to be effected at
such time or times as the Trustee may determine, and any such sale or sales may be made at a public or
private sale in any broker’s board or securities exchange, or may be made over-the-counter;

b) To collect and receive the proceeds of the sale and to issue receipts therefor and/or execute and/or
deliver such papers or documents and perform such acts as may be necessary to transfer to the
purchaser or purchasers of the qualified securities so sold, all the rights, title and interest on such
securities.

Section 5.04. Application of Proceeds of Sale; Accounting

The proceeds from the sale of the qualified securities held in the Portfolio shall be applied as follows:

a) First To the payment of the costs and expenses of the sale, and the compensation and other claims of
the Custodian pursuant to Section 3.09 hereof;

b) Second To the payment in full of the amounts then due and unpaid for principal and income of the
Investor’s investment upon the maturity of the Investment Agreement;

c) Third To the placement of cash accounts as part of the portfolio so as to maintain the aggregate
maximum security value required to cover custodian receipts outstanding pursuant to Section 2.03 and
3.01 (g) hereof;

d) Fourth Any surplus remaining shall be returned to the Company, its successors or assigns or to
whomsoever may be lawfully entitled to receive the same.
The Custodian shall submit and render to the Company written statements and reports of sales
transactions under this Section, if any, fifteenth (15th) day of each calendar month.5

MSI executed in favor of IBAA, conformably to the said custodianship agreement, deeds of
assignment, quoted in part as follows:

NOW THEREFORE, for and in consideration of the foregoing premises and by way of security for the
faithful compliance by the Company with the terms and conditions of the Investment Agreement and
pursuant to the Agreement, the Company hereby transfers, assigns, sets over and delivers to the
Custodian for the benefit and security of Investors, all rights, title and interest whether legal or
beneficial in and to the securities more particularly described in the schedule attached hereto as Exhibit
"1" hereof, and to such other securities as may from time to time be brought under the operation of this
assignment from time to time by way of supplementary schedules hereto incorporated and made an
integral part hereof by their terms of reference.

The Company hereby reiterates and affirms, as integral parts of this Agreement, all of the warranties set
forth in Section 4.01 of the Agreement, to which Agreement reference is hereby made for the other
terms and conditions applicable hereto.6

On December 12, 1979, MSI as trustor and LBP as trustee executed a contract denominated as
"Substitution of Trustee with Assumption of Liabilities" in which LBP substituted and succeeded IBAA
as custodian bank of the collateral pool of securities under the custodianship agreement, and thus
assumed the previous duties and responsibilities of IBAA as custodian and safekeeper of qualified
securities for the benefit of the investors:

2. Also effective as of December 12, 1979, Land Bank has agreed to be substituted as Custodian in place
of IBAA under the aforementioned Custodianship Agreement, and has assumed any and all liabilities of
IBAA thereunder.

3. IBAA, upon the instruction of the TRUSTOR shall, under the mechanics to be agreed upon subsequent
hereto, transfer the custody and management of the collateral pool to LAND BANK.

4. TRUSTOR undertake[s] to hold IBAA free from any and all liability which may arise under the
CUSTODIANSHIP AGREEMENT, referred to above, and agree to defend IBAA from any and all suits which
may arise by virtue thereof.
5. LAND BANK undertakes to collect all outstanding IBAA Custodian Receipts issued pursuant to the
CUSTODIANSHIP AGREEMENT mentioned above, and to substitute its own Custodianship Receipts
thereof within thirty (30) days from the execution of this AGREEMENT.

6. LAND BANK further agrees to notify all investors of the fact of substitution of IBAA as trustee of the
collateral pool, pursuant to Section 3.05 of the CUSTODIANSHIP AGREEMENT dated August 19, 1976.

7. The provision of Section 3.04-A of the said AGREEMENT relative to the effectivity of removal or
resignation of the trustee after the thirtieth banking day from date of notice is hereby waived.

8. The TRUSTOR shall, upon the execution of this AGREEMENT, liquidate all its outstanding obligations
with IBAA, including but not limited to outstanding trust fees and out of pocket expenses.

9. Upon the execution of this AGREEMENT, IBAA will render its final accounting to the TRUSTOR. Any
exception thereto must be communicated in writing to IBAA within thirty (30) days from receipt thereof,
otherwise the same shall be deemed conclusively correct.7

In the same month, Ricardo L. Manotoc, Jr. and Teodoro M. Kalaw filed a petition with the Securities
and Exchange Commission (SEC) docketed as SEC Case No. 1826 for the rehabilitation of MSI and the
appointment of a Management Committee for the said corporation "to avoid an imminent danger of
paralyzation of its business operations brought about by serious financial problems." Teodoro M.
Kalaw likewise filed a similar petition with the SEC docketed as SEC Case No. 1835 for the rehabilitation
of the Trans-Insular Management, Inc. et al. and for the appointment of a Management Committee.

On December 20, 1979 and January 11, 1980, the SEC issued orders placing MSI under rehabilitation
and appointing a Management Committee as interim receiver of the real and personal properties and
assets of MSI, its subsidiaries and subdivisions. The SEC issued another order on April 2, 1980
delineating the duties of the Management Committee as interim receiver:

1. To bring and defend such action in its own name;

2. To take and keep possession of the properties in controversy;

3. To receive rents and other income;

4. To collect debts due to the corporations as receiver and all such funds, property and estate, due to
person or corporation of which it is receiver;

5. To compound for and compromise the same;

6. To make transfer;

7. To pay outstanding debts; to divide the money and other property that shall remain among the
persons legally entitled to receive the same;

8. To negotiate with any financial institution whether public or private, domestic or foreign, for such
funding and financial arrangement as may be necessary to support the rehabilitation project and
program. For this purpose, the Committee or its duly authorized representative may sign such
documents and papers as may be necessary;

9. To make such reports to the Commission as may be decreed necessary from time to time regarding
the aforementioned projects; and generally to do such acts respecting the property as the Commission
may authorize, including the authority to rehabilitate the said corporation, if possible.8

Wilfrido B. Jacinto was appointed as Officer-In-Charge of the Committee.

On February 13, 1980, MSI wrote the LBP, advising the latter that the corporation had been placed
under rehabilitation, and that the SEC had appointed a Management Committee to handle its affairs.
MSI directed the LBP--

… to suspend any movement, disposition or substitution of any and all properties you now hold
either, as collateral, security or custodian for the above-mentioned companies as per the directive of
the Securities and Exchange Commission.

On April 18, 1982, the private respondents, through counsel, wrote the LBP, requesting the latter to
return their investments with the MSI. The LBP referred the letter of the private respondents to the
Management Committee which on May 28, 1982 rejected the demands of the private respondents. On
June 1, 1982, the LBP wrote the private respondents that it could not possibly comply with their
demands:

On June 24, 1982, the private respondents acknowledged receipt of the June 1, 1982 Letter and
informed LBP that as trustee of the investment portfolio, it held legal title over the same. As such, the
said portfolio could not be affected by any directives of the Management Committee. The private
respondents urged the LBP to--

… desist from "terminating and closing the account" and turning over the Investment Portfolio to the
Securities and Exchange Commission as you propose to do, and we hereby reiterate our request that
you proceed to sell and dispose of the securities in your custody for the satisfaction of the claims of our
clients, without prejudice to taking such action as you may consider necessary for securing a clarificatory
order or directive from the Securities and Exchange Commission regarding the scope and extent of its
alleged directive to you, or a reversal or nullification of said directive, as the case may require. Needless
to say, our clients shall hold you responsible for any and all acts or omissions in breach of trust, and for
any loss or damage which they or the trust estate may suffer resulting from such acts or omissions.11

The LBP rejected the demands of the private respondents.

On June 29, 1982, the private respondents demanded for an accounting of their portfolio.12 The LBP,
in a Letter dated July 20, 1982, informed the private respondents that it could not give due course to
the demands because as mere custodian of the securities in the portfolio, it does not have legal title
over the same. The demands of the private respondents for the remittance of their investments and the
earnings thereof, and for an accounting of their portfolio was, thus, further rejected by the bank.13

In the meantime, the Management Committee proposed the appointment of a permanent Receiver to
perform the following:

(a) To liquidate the assets immediately for distribution to creditors and investors without prejudice to
the possibility of developing small but viable real estate properties;

(b) To continue to pursue collection efforts and/or legal action against all debtors;

(c) To run after the unlimited liability of the principal stockholders, Teodoro V. Kalaw, Jr. and Ricardo L.
Manotoc, Jr.;
(d) To call on the terms of the broker/dealer bond issued by FGU Insurance Corporation;

(e) To file a case against a former company officer, Raul R. Leveriza, Jr. and other parties involved in the
fake title case; and

(f) To take proper action against the company and other parties for violations of the Securities Act
regarding the pledging of shares of stock without the approval of the client-owners.14

Fearing that their investments were in serious jeopardy due to the abovementioned developments,
private respondents Mamerto B. Rodriguez and Spouses Armando and Zenaida Sta. Ana filed a
petition with the RTC of Makati under Rule 98 of the Revised Rules of Court, seeking the removal of
IBAA as trustee and the appointment of a substitute trustee.

On June 30, 1983, private respondents El Observatorio de Manila, Incorporada, Spouses Wilfredo and
Aurora Posadas and Reginald Francisco on the one hand, and private respondents Bienvenido Maceda,
Spouses Hector and Matilde Mendoza and Eugenio Romillo, on the other, also filed similar petitions. The
respective petitions of the private respondents were thereafter consolidated and assigned to the RTC of
Makati, Branch 136.18

ALLEGATIONS OF FACTS IN THE COMPLAINTS

The three petitions for the removal of IBAA as trustee of the investment portfolio created under the
custodianship agreements contained substantially similar allegations. The private respondents alleged
inter alia that MSI named and appointed IBAA as the trustee of an investment portfolio, which was to
consist initially of investment funds solicited and obtained by MSI and IBAA from the issuance and sale
to the public of certain securities denominated as investment agreements and custodian receipts.

On May 24, 1977 and October 4, 1977, MSI and IBAA amended the agreement under instruments
entitled "Amendment to Custodianship Agreement." Under its provisions, the funds of the investors in
the investment pool were to be invested primarily in financing the margin accounts of clients of MSI and
other stockbrokers in the stock market, the payment of which was to be secured only with certain
specified shares of stock at 150% cover and/or real estate properties at 200% cover, based on the latest
available market quotations on such shares and the latest independent appraisal of such real estate
properties.20 The investment portfolio was to be held by IBAA in trust for the benefit and protection of
the investors therein, as security for the payment at maturity of the principal and income due on their
respective investments.21
The private respondents further alleged that MSI failed to maintain the required security value of the
investment portfolio at a level equivalent to at least 100% of the amount of the outstanding custodian
receipts even earlier than July 30, 1979, and at no time during the period between July 10 to December
10, 1979 did MSI deliver or assign sufficient securities to bring the security value of the portfolio to the
level of at least 100% of the amount of the outstanding custodian receipts. Thus, the non-payment by
MSI to private respondents and other investors of their returns on the investment agreements at
maturity, and the failure of MSI to maintain the security value of the investment portfolio as agreed
upon, constituted events of default under the terms and conditions of the custodianship agreement.29

The private respondents claimed that instead of being obliged to deliver additional qualified securities
to cover the recurring deficiencies in the said investment portfolio, MSI was repeatedly allowed to
effect the release or withdrawal and/or substitution of securities which formed part of the same. IBAA
likewise failed and neglected to declare the principal and income of all investments then outstanding
as due and payable, or to make any serious and prompt demand on MSI to deliver additional
securities. IBAA allowed MSI to avail of funds pertaining to the trust, and to misappropriate and
misapply the funds by directly borrowing therefrom, and/or by extending loans to its parent and
subsidiary companies, to companies and enterprises owned and controlled by its principal officers and
directors or their families, and/or controlling stockholders, as well as to other ineligible borrowers. IBAA
furthermore allowed MSI to accept inadequate security, or to accept as security unimproved real estate,
or real estate of dubious value or with questionable title, notwithstanding clear indications that such
security was worthless, grossly inflated in value, ineligible and not readily convertible to cash if needed
to pay maturing investment agreements.30

To prevent IBAA from declaring all outstanding investment agreements as immediately due and payable,
MSI wrote a letter on December 10, 1979 advising IBAA that it was terminating the custodianship
agreement effective that same date and that LBP was assuming as the new trustee. On December 12,
1979, MSI and IBAA, together with LBP, executed an instrument entitled "Substitution of Trustee with
Assumption of Liabilities" whereby IBAA ceased to act as trustee, and LBP assumed as its substitute.
Both the purported termination of the agreement and the purported substitution of IBAA by LBP as
trustee of the investment portfolio were sought to be implemented or carried out without the
knowledge and consent of the investors, without the benefit of any accounting by IBAA, on its
administration and management of the investment portfolio, and without IBAA being discharged of its
office and liability as trustee of the investment portfolio by a court of competent jurisdiction.31 In the
interim, the SEC had appointed a Management Committee to take custody of the properties and assets
of MSI, to protect the interest of the investors, creditors and stockholders, and to effectively carry out a
program of rehabilitation.

The private respondents prayed that after due proceedings, judgment be rendered in their favor (a)
ordering the removal of IBAA and LBP as trustee and substitute trustee of the investment portfolio of
the private respondents; (b) appointing Prudential Bank as trustee in substitute of IBAA and LBP; (c)
declaring as of no force and effect with respect to them the "Substitution of Trustee with Assumption of
Liabilities" executed by LBP and MSI; and to --

Both IBAA and LBP moved to dismiss/suspend the said petitions on the ground that it was the SEC,
and not the RTC, which had jurisdiction over the subject matter of the cases, pursuant to Presidential
Decree No. 902-A as amended by P.D. Nos. 1653 and 1799. Thus, conformably to Section 6(c) of P.D.
902-A, as amended, all claims against the distressed corporation should be suspended upon the
constitution of the Management Committee. MSI, through its SEC-Appointed Management Committee,
also filed a motion to dismiss/suspend proceedings in SP Proc. Case No. 125 on the same ground. In
behalf of MSI, Ricardo L. Manotoc, Jr. filed a motion to intervene and a motion to suspend the
proceedings, also on the same ground. In their Reply, the private respondents averred that IBAA and LBP
were trustees of the investment portfolio, and as such, had acquired title over the properties included in
the same; hence, the distressed corporation was not the owner of the said investment portfolio.
Consequently, the SEC had no jurisdiction over the matter.

The petitions were set for hearing, during which the petitioners therein (private respondents herein)
adduced evidence to prove their claim.

THE TRIAL COURT’S RULING

In an Order dated February 12, 1985, the trial court found merit in the motion to suspend the
proceedings pursuant to Section 6 of P.D. 902-A as amended. According to the court, the allegations in
the petitions indicated that although there was no prayer specifically directed against Manotoc or MSI,
the petitions were in reality claims against the latter, or, at the very least, the disposition of the
petitions would affect properties belonging or pertaining to a corporation under management or
receivership of the SEC.

In ruling for the petitioners, the trial court held that the SEC had primary jurisdiction to the exclusion
of the RTC, and that the matter of determining whether the agreement was one of agency, bailment,
or trust, should be raised in and determined first by the SEC to the exclusion of the court. Since its
jurisdiction was merely secondary, the authority of the court was limited to reviewing the SEC’s final
deliberations on the petitions. The private respondents should have exhausted all remedies before the
SEC. To entertain the suit would open the gates to confusion, resulting in a duplication of proceedings
arising out of a conflict of jurisdiction, which could very well be avoided by respecting the jurisdiction of
the SEC.
The private respondents thereafter filed a motion for reconsideration which was denied on January 16,
1986. The private respondents appealed from the order to the Court of Appeals.

The private respondents alleged on appeal that when MSI named and appointed IBAA as trustee of the
investment portfolio, it carried no other implication than that IBAA, as trustee, became the legal owner
of the funds in the investment portfolio. Although the SEC placed MSI under management and
receivership, its jurisdiction extends only to the properties and assets of MSI. The doctrine of
exhaustion of administrative remedies should be applied only to those who, having gone to the SEC
for relief, failed to avail of and exhaust all possible remedies therein before seeking judicial
intervention. The said doctrine was erroneously applied by the trial court, as they were not parties to
SEC Cases Nos. 1826 and 1835.35 While Ricardo Manotoc, Jr. may be a stockholder of MSI, he does not
have any legal interest in the trust properties involved in the proceedings; it is the trustee who has legal
ownership of the properties held in trust, subject, however, to the equitable rights of the beneficiaries
of the same.36

The petitioner bank, for its part, maintained that IBAA/LBP is a mere custodian of MSI under the
custodianship agreement with specific duties to perform, and as such, is only an agent of MSI; it is not a
trustee in the strict and legal sense, and does not hold any legal title over the properties or
securities.37

Manotoc, in behalf of MSI, contended that as one of the parties who filed the petition for the
appointment of a Management Committee and the approval of a rehabilitation scheme for the said
corporation and its affiliate companies, he has legal interests in the matter in litigation sufficient to
entitle him to intervene in the action.

THE RULING OF THE COURT OF APPEALS

The CA reversed and set aside the assailed orders of the RTC. It held that IBAA and LBP were trustees
of the investments of the private respondents and not merely custodians thereof; hence, IBAA and
LBP had legal title over the property covered by the said investments. The order of the lower court to
archive the cases and to relinquish in toto its jurisdiction over the actions initiated by the private
respondents was premature. The RTC should have resolved the motions on their merits and determined
whether or not the petitioner and IBAA were trustees of the investment portfolio.

The CA further explained that because of the existence of a trusteeship agreement, under Rule 98,
Sections 8 and 9 of the Rules of Court, the RTC had jurisdiction over the petitions of the private
respondents. The court a quo ought to have given due course to the petitions as originally filed, and
thereafter determine which of the reliefs sought were available, in the light of the limitations imposed
by the receivership status of the MSI and the SEC’s jurisdiction over its affairs and the claims against it,
instead of archiving the petition and suspending the proceedings. Moreover, the doctrine of primary
jurisdiction cannot be invoked as a pretext to bar the private respondents from seeking judicial relief
until the final resolution of SEC Cases Nos. 1826 and 1835, given the fact that the IBAA and LBP were
trustees of the portfolio of the private respondents. The CA further stated that the RTC had jurisdiction
over petitions for the removal of trustees:

MSI and its assets have been placed under a management committee assigned by the Securities and
Exchange Commission. We do not see, however, how this, of necessity, cancels the power of the court,
when it finds it meritorious and just, to order IBAA to render an accounting to the beneficiaries. The
doctrine of primary jurisdiction, in fact, has a positive import, insofar as judicial authority is concerned. It
is this that Davis, an acknowledged American authority on administrative law, propounds:

PETITIONER’S ARGUMENTS

The petitioner avers that the CA committed a grave abuse of its discretion amounting to lack or excess
of jurisdiction in ruling that the petitioner was a trustee of the portfolio of the private respondents
and that the RTC had jurisdiction over the petitions of the latter. It asserts that it has no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law. As a mere custodian of MSI
under the custodianship agreement with specific duties to perform, it is only an agent and not a trustee
in the strict legal sense, and does not hold any legal title over the properties and securities.41 The CA
acted despotically when it ignored the various documents showing the true relationship between it and
the private respondents.

The petitioner asserts that since it is not a trustee but a mere custodian, Section 8, Rule 98 of the
Rules of Court is clearly inapplicable. Consequently, the trial court does not have jurisdiction over the
petitions filed by the private respondents for the removal of LBP as trustee. Instead, the petitioner
asserts, it is the SEC who rightly has jurisdiction over the petitions. While cleverly denominated as
"petition for the removal of IBAA or LBP as trustee," the petitions are, in reality, a mere sly scheme of
private respondents to implement the custodianship agreement between LBP and MSI through the
instrumentality of the trial court. Even assuming that the petitions are not claims or actions against MSI,
nonetheless, at the very least, their disposition would affect properties belonging or pertaining to a
corporation under management or receivership of the SEC, and thus should accordingly be suspended,
conformably to Section 6(c) of P.D. 902-A, as amended. Since the petitions before the court a quo are in
effect clearly claims/actions against a corporation under management or receivership by the SEC which
even private respondents admit to have been placed under management/receivership due to, among
others, the alleged acts/schemes of its board of directors/officers/partners amounting to fraud and
misrepresentation which may be detrimental to the interest of the public, it then follows that the trial
court has no jurisdiction to entertain the same. Thus, only the SEC has jurisdiction over the said cases to
the exclusion of the courts. 43
Petitioner LBP also states its willingness to perform its duties and obligations as custodian bank under
the custodianship agreement even without instigation. It, however, averred that in deference to the SEC
Order of April 2, 1980 which directed it to suspend any movement, disposition or substitution of any and
all properties held in behalf of MSI, whether as collateral security or as custodian thereof, it is unable to
do so. The petitioner contends that it is duty-bound to comply with the order, considering that it was
issued by the SEC in the legitimate and valid exercise of its regulatory and adjudicatory powers pursuant
to P.D. 902-A. LBP reiterates that the petitions are part of a sly scheme to implement the custodianship
agreement between LBP and MSI through the instrumentality of the trial court.44

PRIVATE RESPONDENTS’ ARGUMENTS

Another argument relied upon by the private respondents is that one of the conclusions reached by
public respondent CA which is sought to be corrected by the instant petition for certiorari is that a
trust was created in each of the custodianship agreements. This conclusion, even if erroneous,
amounts to nothing more than an error of judgment, correctible by appeal. The private respondents
assert that the instant petition for certiorari cannot correct errors of judgment, since it is confined to the
correction of errors of jurisdiction only, or grave abuse of discretion amounting to lack or excess of
jurisdiction.50

According to the petitioner, the finding of facts made by the respondent CA as to the transfer,
assignment, set over, and delivery to IBAA and LBP of the securities in the investment portfolios for
the benefit and security of the investors should be conclusive upon the Court, except only if shown to
have been reached with abuse of discretion amounting to lack of jurisdiction, which petitioner has failed
to do.

Even the claim of petitioner LBP that the disposition of the petitions for removal of trustees would affect
properties belonging or pertaining to a corporation (MSI) under SEC management or receivership lacks
factual basis. By virtue of the assignment of the securities in the investment portfolios to the trustee
banks, title and interest therein were in fact vested in them, making them the legal owners of the same.

Anent the contention of LBP that it is willing to perform its duties were it not for the directive issued
by the SEC, the private respondents assert that the SEC Order dated April 2, 1980 contains no such
directive, nor is it even addressed to LBP. It is simply a resolution placing MSI and its subsidiaries under
receivership, and appointing the Management Committee of the said entities as interim receiver of
their properties. And even if the SEC order had indeed contained an actual directive addressed to LBP to
suspend any movement, disposition or substitution of any and all properties of MSI, it knew or ought to
have known that an order so issued would be in excess of jurisdiction and would not be binding upon it,
because no court or tribunal can take property in the possession of a stranger to the action who claims
in good faith to be the owner thereof. Furthermore, under the terms of the appointment, the
Management Committee was not given the power or authority to take over the management or control
of assets or properties not belonging to MSI. LBP, according to the private respondents, would then be
obliged, in the exercise of its duty as trustee, to defend the trust property from all adverse claimants
and to take the necessary action to nullify or set such order aside.51

THE ERRORS ASCRIBED TO THE COURT OF APPEALS IN

ITS DECISION ARE ERRORS OF JUDGMENT AND NOT OF JURISDICTION.

Inscrutably, the CA had jurisdiction over the appeals of the private respondents from the order of the
trial court. The decision of the CA was thus rendered by it in the proper exercise of its jurisdiction. In its
decision, the CA enumerated the following findings of facts:

(a) the RTC erred in ordering the petitions archived and the proceedings in said petitions suspended
simply because of the pendency of SEC Cases Nos. 1826 and 1835 and of the appointment of
Management Committee as interim receiver;

(b) based on the pleadings of the parties and the evidence on record, the petitioner and the IBAA
were trustees of the investment portfolios; hence, owners and not mere agents of MSI;

(c) the investment portfolios are not assets of MSI;

(d) the SEC had no jurisdiction over the investment portfolios held in trust by the petitioner and IBAA;

(e) only those actions for claims against the distressed corporation are suspended, but the petition for
the dissolution of the trusteeship for IBAA and the petitioner LBP to render an accounting of their
stewardship of the investment portfolios, and to pay damages on account of their mishandling and/or
defalcation of the same, are not suspended but may proceed until the petitions are finally resolved;

(f) the principle of primary administrative jurisdiction does not apply in the instant case.71
These findings are mere errors of judgment and not errors of jurisdiction, correctible by a petition for
review on certiorari with this Court under Rule 45 of the Revised Rules of Court. Hence, the petitioner
should have filed with this Court a petition for review on certiorari under Rule 45 within the period
therefor, and not a petition for certiorari under Rule 65 of the said Rules.

APPEAL UNDER RULE 45 OF THE RULES OF COURT AS

AMENDED IS A SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW.

The petitioner avers that an appeal via a petition for review on certiorari under Rule 45 would not
promptly relieve it from the injurious effects of the patently erroneous decision and resolution of the
CA; the instant petition for certiorari under Rule 65 would afford it a more expeditious and efficient
relief. The petitioner also points out that if the petitions of the private respondents were to be
remanded to the RTC for appropriate proceedings, the already clogged dockets of the trial court would
be needlessly exacerbated considering that it had no jurisdiction over the petitions.

We do not agree with the petitioner. A petition for review on certiorari under Rule 45 of the Revised
Rules of Court is a plain, speedy and adequate remedy in the ordinary course of law. It bears stressing
that if the petitioner had filed its petition for review on certiorari under Rule 45 within the period
therefor, the assailed decision would have been stayed.

In such case, the petitioner could have raised issues involving questions of law, such as whether or not
the RTC has jurisdiction over the petitions of the private respondents, or whether the petitions are in
effect actions for claims as defined by this Court in Finasia Investments & Finance Corp. v. Court of
Appeals:72

The word "claim" is also defined as:

Right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or right
to an equitable remedy for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured, unsecured.

In conflicts of law, a receiver may be appointed in any state which has jurisdiction over the defendant
who owes a claim.
THE DECISION OF THE

CA HAS BECOME FINAL AND EXECUTORY.

The petitioner received a copy of the decision of the CA on November 18, 1996. It had until December 3,
1996 within which to file its motion for reconsideration of the decision. The petitioner did so on the said
date and received on April 18, 1997 the resolution of the CA denying its motion for reconsideration. The
petitioner filed its petition at bar only on June 17, 1997, well beyond the period therefor. Patently then,
the decision of the CA had become, in the interim, final and executory, beyond the purview of this Court
to act upon.74

IN LIGHT OF ALL THE FOREGOING, the Petition is DISMISSED. The Decision of the Court of Appeals in CA-
G.R. CV Nos. 12533-35 is AFFIRMED. Costs against the petitioner.

SO ORDERED.

B. Who may file; when to file

G.R. No. 94053 March 17, 1993

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.

GREGORIO NOLASCO, respondent.

On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of Antique,
Branch 10, a petition for the declaration of presumptive death of his wife Janet Monica Parker,
invoking Article 41 of the Family Code. The petition prayed that respondent's wife be declared
presumptively dead or, in the alternative, that the marriage be declared null and void.

The Republic of the Philippines opposed the petition through the Provincial Prosecutor of Antique
who had been deputized to assist the Solicitor-General in the instant case. The Republic argued, first,
that Nolasco did not possess a "well-founded belief that the absent spouse was already dea d,"2 and
second, Nolasco's attempt to have his marriage annulled in the same proceeding was a "cunning
attempt" to circumvent the law on marriage.
During trial, respondent Nolasco testified that he was a seaman and that he had first met Janet Monica
Parker, a British subject, in a bar in England during one of his ship's port calls. From that chance meeting
onwards, Janet Monica Parker lived with respondent Nolasco on his ship for six (6) months until they
returned to respondent's hometown of San Jose, Antique on 19 November 1980 after his seaman's
contract expired.

On 15 January 1982, respondent married Janet Monica Parker in San Jose, Antique, in Catholic rites
officiated by Fr. Henry van Tilborg in the Cathedral of San Jose.

Respondent Nolasco further testified that after the marriage celebration, he obtained another
employment contract as a seaman and left his wife with his parents in San Jose, Antique. Sometime in
January 1983, while working overseas, respondent received a letter from his mother informing him that
Janet Monica had given birth to his son. The same letter informed him that Janet Monica had left
Antique. Respondent claimed he then immediately asked permission to leave his ship to return home.
He arrived in Antique in November 1983.

Respondent further testified that his efforts to look for her himself whenever his ship docked in England
proved fruitless. He also stated that all the letters he had sent to his missing spouse at No. 38 Ravena
Road, Allerton, Liverpool, England, the address of the bar where he and Janet Monica first met, were all
returned to him. He also claimed that he inquired from among friends but they too had no news of Janet
Monica.

On cross-examination, respondent stated that he had lived with and later married Janet Monica Parker
despite his lack of knowledge as to her family background. He insisted that his wife continued to refuse
to give him such information even after they were married. He also testified that he did not report the
matter of Janet Monica's disappearance to the Philippine government authorities.

Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that her
daughter-in-law Janet Monica had expressed a desire to return to England even before she had given
birth to Gerry Nolasco on 7 December 1982. When asked why her daughter-in-law might have wished to
leave Antique, respondent's mother replied that Janet Monica never got used to the rural way of life in
San Jose, Antique. Alicia Nolasco also said that she had tried to dissuade Janet Monica from leaving as
she had given birth to her son just fifteen days before, but when she (Alicia) failed to do so, she gave
Janet Monica P22,000.00 for her expenses before she left on 22 December 1982 for England. She
further claimed that she had no information as to the missing person's present whereabouts.

The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the dispositive portion
of which reads:
Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines (Executive Order No.
209, July 6, 1987, as amended by Executive Order No. 227, July 17, 1987) this Court hereby declares as
presumptively dead Janet Monica Parker Nolasco, without prejudice to her reappearance.

The Republic appealed to the Court of Appeals contending that the trial court erred in declaring Janet
Monica Parker presumptively dead because respondent Nolasco had failed to show that there existed
a well founded belief for such declaration.

The Court of Appeals affirmed the trial court's decision, holding that respondent had sufficiently
established a basis to form a belief that his absent spouse had already died.

The Republic, through the Solicitor-General, is now before this Court on a Petition for Review where the
following allegations are made:

ISSUES:

1. The Court of Appeals erred in affirming the trial court's finding that there existed a well-founded
belief on the part of Nolasco that Janet Monica Parker was already dead; and

2. The Court of Appeals erred in affirming the trial Court's declaration that the petition was a proper
case of the declaration of presumptive death under Article 41, Family Code.

The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a well-founded
belief that his wife is already dead."

RULING: NO. PETITION IS DENIED.

The present case was filed before the trial court pursuant to Article 41 of the Family Code which
provides that:

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 provision 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. (Emphasis supplied).

As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of presumptive
death under Article 41 of the Family Code:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death under the circumstances laid down in Article
391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the
absentee.

Respondent naturally asserts that he had complied with all these requirements.

Petitioner's argument, upon the other hand, boils down to this: that respondent failed to prove that he
had complied with the third requirement, i.e., the existence of a "well-founded belief" that the absent
spouse is already dead.

The Court believes that respondent Nolasco failed to conduct a search for his missing wife with such
diligence as to give rise to a "well-founded belief" that she is dead.

In the case at bar, the Court considers that the investigation allegedly conducted by respondent in his
attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a
reasonable or well-founded belief that she was already dead. When he arrived in San Jose, Antique
after learning of Janet Monica's departure, instead of seeking the help of local authorities or of the
British Embassy, he secured another seaman's contract and went to London, a vast city of many millions
of inhabitants, to look for her there.
Respondent's testimony, however, showed that he confused London for Liverpool and this casts doubt
on his supposed efforts to locate his wife in England. The Court of Appeal's justification of the mistake,
to wit:

. . . Well, while the cognoscente (sic) would readily know the geographical difference between London
and Liverpool, for a humble seaman like Gregorio the two places could mean one — place in England,
the port where his ship docked and where he found Janet. Our own provincial folks, every time they
leave home to visit relatives in Pasay City, Kalookan City, or Parañaque, would announce to friends and
relatives, "We're going to Manila." This apparent error in naming of places of destination does not
appear to be fatalis not well taken.

There is no analogy between Manila and its neighboring cities, on one hand, and London and Liverpool,
on the other, which, as pointed out by the Solicitor-General, are around three hundred fifty (350)
kilometers apart. We do not consider that walking into a major city like Liverpool or London with a
simple hope of somehow bumping into one particular person there — which is in effect what Nolasco
says he did — can be regarded as a reasonably diligent search.

The Court also views respondent's claim that Janet Monica declined to give any information as to her
personal background even after she had married respondent too convenient an excuse to justify his
failure to locate her. The same can be said of the loss of the alleged letters respondent had sent to his
wife which respondent claims were all returned to him. Respondent said he had lost these returned
letters, under unspecified circumstances.

Neither can this Court give much credence to respondent's bare assertion that he had inquired from
their friends of her whereabouts, considering that respondent did not identify those friends in his
testimony. The Court of Appeals ruled that since the prosecutor failed to rebut this evidence during
trial, it is good evidence. But this kind of evidence cannot, by its nature, be rebutted. In any case,
admissibility is not synonymous with credibility. 18 As noted before, there are serious doubts to
respondent's credibility. Moreover, even if admitted as evidence, said testimony merely tended to show
that the missing spouse had chosen not to communicate with their common acquaintances, and not
that she was dead.

Respondent testified that immediately after receiving his mother's letter sometime in January 1983, he
cut short his employment contract to return to San Jose, Antique. However, he did not explain the delay
of nine (9) months from January 1983, when he allegedly asked leave from his captain, to November
1983 when be finally reached San Jose. Respondent, moreover, claimed he married Janet Monica Parker
without inquiring about her parents and their place of residence. Also, respondent failed to explain why
he did not even try to get the help of the police or other authorities in London and Liverpool in his effort
to find his wife. The circumstances of Janet Monica's departure and respondent's subsequent behavior
make it very difficult to regard the claimed belief that Janet Monica was dead a well-founded one.

In In Re Szatraw, 22 the Court warned against such collusion between the parties when they find it
impossible to dissolve the marital bonds through existing legal means.

While the Court understands the need of respondent's young son, Gerry Nolasco, for maternal care, still
the requirements of the law must prevail. Since respondent failed to satisfy the clear requirements of
the law, his petition for a judicial declaration of presumptive death must be denied. The law does not
view marriage like an ordinary contract. Article 1 of the Family Code emphasizes that.

In fine, respondent failed to establish that he had the well-founded belief required by law that his
absent wife was already dead that would sustain the issuance of a court order declaring Janet Monica
Parker presumptively dead.

WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial court's
decision declaring Janet Monica Parker presumptively dead is hereby REVERSED and both Decisions are
hereby NULLIFIED and SET ASIDE. Costs against respondent.

G.R. No. 84250 July 20, 1992

DAYA MARIA TOL-NOQUERA, petitioner,

vs.

HON. ADRIANO R. VILLAMOR, Presiding Judge, Branch XVI, Regional Trial Court, 8th Judicial Region,
Naval, Leyte, and DIOSDADO TOL, respondents.

Questioned in this action is the dismissal of a petition filed by Daya Maria Tol-Noquera for
appointment as administratrix of the property of the absentee Remigio Tol.

In Special Proceedings No. P-056, which was filed in December 1986, Daya Maria Tol alleged that she
was the acknowledged natural child of Remigio Tol, who had been missing since 1984. She claimed
that a certain Diosdado Tol had fraudulently secured a free patent over Remigio's property and had
obtained title thereto in his name. She was seeking the administration of the absentee's estate in order
that she could recover the said property.

The petition was opposed by Diosdado Tol, who argued that Daya Maria Tol was not an acknowledged
natural child of the absentee and that the property sought to be administered was covered by an
original certificate of title issued in his name.

DECISION OF THE RTC

On March 31, 1987, the trial court dismissed the petition on the ground that it was a collateral attack
on a Torrens title. The court also declared in effect that it was useless to appoint an administrator in
view of the claim of a third person that he was the owner of the absentee's property.

The petitioner's motion for reconsideration having been denied, she filed a notice of appeal with this
Court on June 4, 1984. However, inasmuch as only questions of law were involved, we resolved to
require the petitioner to seek review on certiorari under Rule 45 of the Rules of Court within 15 days
from notice.

ARGUMENTS OF THE PARTIES

In the petition now before us, it is argued that the original petition in the trial court was not intended as
a collateral attack on a Torrens title; hence, Art. 389 of the Civil Code was not applicable.

The private respondent, on the other hand, contends that since the petitioner claims she is an
illegitimate child of Remigio Tol, she is prohibited under Art. 992 of the Civil Code from inheriting ab
intestato from the relatives of her father.

The private respondent likewise questions the necessity of her appointment for the purpose only of
having the title annulled. He adds that in view of her allegations of fraud, she should have sued for the
annulment of the title within a period of one year, which had already expired. Lastly, the decision of
the trial court had already become final and executory because 76 days had already elapsed from the
date of receipt of the said decision on May 21, 1987, to the date the petition was filed before this Court
on August 5, 1987.

DECISION OF THE CA
A study of the record reveals that the lower court was rather hasty in dismissing the petition.

As we see it, the petition was not a collateral attack on a Torrens title. The petitioner did say there was
a need to appoint an administrator to prevent the property from being usurped, but this did not
amount to a collateral attack on the title. The alleged fraudulent issuance of title was mentioned as a
justification for her appointment as administrator. But there was nothing in the petition to indicate
that the petitioner would attack the title issued to Diosdado in the same proceeding. In fact, the
petitioner declared that whatever remedy she might choose would be pursued in another venue, in a
proceeding entirely distinct and separate from her petition for appointment as administratrix.

Regarding the Torrens certificate of title to the disputed property which was presented to defeat the
petitioner's appointment, we feel that the position of trial court was rather ambivalent. For while relying
on such title to justify the dismissal of the petition, it suggested at the same time that it could be
attacked as long as this was not done in the proceeding before it.

The private respondent's arguments that the petitioner cannot inherit ab intestato from the
legitimate parents of the absentee is immaterial to this case. Her disqualification as an heir to her
supposed grandparents does not inhibit her from petitioning for a declaration of absence or to be
appointed as an administratrix of the absentee's estate.

The relevant laws on the matter are found in the following provisions of the Civil Code:

Art. 381. When a person disappears from his domicile his whereabouts being unknown, and without
leaving an agent to administer his property the judge, at the instance of an interested party, a
relative, or a friend, may appoint a person to represent him in all that may be necessary.

This same rule shall be observed when under similar circumstances the power conferred by the
absentee has expired.

Art. 382. The appointment referred to in the preceding article having been made, the judge shall take
the necessary measures to safeguard the rights and interest of the absentee and shall specify the
powers, obligations and remuneration of his representatives, regulating them according to the
circumstances, by the rules concerning guardians.

Art. 383. In the appointment of a representative, the spouse present shall be preferred when there is no
legal separation.

If the absentee left no spouse, or if the spouse present is a minor, any competent person may be
appointed by the court.
Art. 384. Two years having elapsed without any news about the absentee or since the receipt of the last
news, and five years in case the absentee has left a person in charge of the administration of his
property, his absence may be declared.

Art. 385. The following may ask for the declaration of absence:

(1) The spouse present;

(2) The heirs instituted in a will, who may present an authentic copy of the same;

(3) The relatives who may succeed by the law of intestacy;

(4) Those who may have over the property of the absentee some right subordinated to the condition
of his death.

Art. 386. The judicial declaration of absence shall not take effect until six months after its publication in
a newspaper of general circulation.

It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a
petition for administration.

The purpose of the cited rules is the protection of the interests and property of the absentee, not of
the administrator. Thus, the question of whether the administrator may inherit the property to be
administered is not controlling. What is material is whether she is one of those allowed by law to seek
the declaration of absence of Remigio Tol and whether she is competent to be appointed as
administratrix of his estate.

The issue of whether or not the property titled to Diosdado Tol is really owned by him should be
resolved in another proceeding. The right of Daya Maria Tol to be appointed administratrix cannot be
denied outright by reason alone of such issue.

Even if it be assumed that the title obtained by Diosdado Tol is already indefeasible because of the lapse
of the one-year period for attacking it on the ground of fraud, there are still other remedies available to
one who is unjustly deprived on his property. One of these is a claim for reconveyance, another a
complaint for damages. The petitioner can avail herself of such remedies if she is appointed
administratrix of the estate of the absentee.

Finally, we find that the appeal was perfected seasonably. Notice of appeal was filed on June 4, 1987,
within the 15-day extension of the period to appeal as granted by this Court in its resolution dated July
8, 1987.

FALLO:

WHEREFORE, the petition is GRANTED. This case is hereby REMANDED to the court of origin for
determination of the legal personality of Daya Maria Tol to petition the declaration of Remigio Tol's
absence and of her competence to be appointed as administratrix of his estate.

SO ORDERED.

A.M. No. 02-11-10-SC March 4, 2003

RE: PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND

ANNULMENT OF VOIDABLE MARRIAGES

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting
for this Court's consideration and approval the Proposed Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages, the Court Resolved to APPROVE the same.

The Rule shall take effect on March 15, 2003 following its publication in a newspaper of general
circulation not later than March 7, 2003

March 4, 2003

Davide, C.J. Bellosillo, Puno, Vitug Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Carpio Morales, Callejo, Sr. and Azcuna

Ynares-Santiago, on leave
Corona, on official leave

RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARIAGES AND ANNULMENT OF

VOIDABLE MARRIAGES

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 te Philippines.

The Rules of Court shall apply suppletorily.

Section 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 shal be filed in the Family Court.

(c) Imprecriptibility ofaction 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 Family Code shall specially allege the complete facts
showing the either or both parties were psychologically incapacitated from complying with the essential
marital obligations of marriages at 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.

Section 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 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 other's 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 the 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 incapability continues and appears to be incurable, within five years after the
celebration of marriage; and

(6) Te 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.

Section 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
the case of non-resident respondent, where he may be found in the Philippines, at the election of the
petitioner.

Section 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, the custody and support of common children,
visitation rights, administration of community or conjugal property, and other matters similarly
requiringurgent action.

(3) It must be verified and accompanied celebration of marriage. (b) Where to file.-The petition shall be
filed in the Family Court.

Section 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 the
case of a non-resident respondent, where he may be found in the Philippines at the election of the
petitioner.

Section 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.
(3) it must be verified and accompanied by a certification against forum shopping. The verification and
certification must be signed personally by me 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.

Section 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 effected 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.

Section 7. 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.
Section 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.

Section 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 on the finding of collusion within
ten days from receipt of a copy of a 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 pre-trial. It
shall be the duty of the public prosecutor to appear for the State at the pre-trial.

Section 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 the pre-trial. The court may also require a case
study at any stage of the case whenever necessary.

Section 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 pre-trial 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 pre-trial.

(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 to file his answer, notice of pre-trial shall be sent to
respondent at his last known address.

Section 12. Contents of pre-trial brief. - The pre-trial 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.
Section 13. Effect of failure to appear at the pre-trial. - {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 pre-trial
and require the public prosecutor to investigate the non-appearance of the respondent and submit
within fifteen days thereafter 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.

Section 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 makers as may aid in the prompt disposition of the petition.

Section 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;

(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 parlies 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.

Section 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.

Section 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.

Section 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 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.

Section 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 Article 50 and 51 of the Family Code as implemented under the Rule 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.

Section 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.

Section 21. Liquidation, partition and distribution, custody, support of common children and delivery of
their presumptive iegltimes. - 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 legitimes
pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous
judicial proceedings.
Section 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

(3) The delivery of the children's 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.

Section 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 td 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.

Section 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.

Section 25. Effectlvity. - This Rule shall take effect on March 15, 2003 following its publication in a
newspaper of general circulation not later than March 7, 2003.

A.M. No. 02-11-12-SC March 4, 2003

RE: PROPOSED RULE ON PROVISIONAL ORDERS

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting
for this Court's consideration and approval the Proposed Rule on Provisional Orders, the Court Resolved
to APPROVED the same.

The Rule shall take effect on March 15, 2003 following its publication in a newspaper of general
circulation not later than March 7, 2003

March 4, 2003

Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval Gutierrez, Carpio,
Austria-Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.

Ynares-Santiago, on leave,

Corona, officially on leave.

RULE ON PROVISIONAL ORDERS

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.

Section 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
seeking support to find appropriate employment, and that spouse's 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 home-making, 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 spouse's 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.

Section 3. Child Support. - The common children of the spouses shall be supported from the properties
of the absolute community or the conjugal partnership.

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.

Section 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 child's health, safety, and welfare; (d) any history of child or spousal abase 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 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 child's 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 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.
Section 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. .

Section 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:

(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.
Section 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;

(e) to permit a designated party to enter the residence during a specified period of time in order to take
persona! 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.

Section 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.
Section 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.

F. Rule on guardianship over minor

G.R. No. 109557 November 29, 2000

JOSE UY and his Spouse GLENDA J. UY and GILDA L. JARDELEZA, petitioners,

vs.

COURT OF APPEALS and TEODORO L. JARDELEZA, respondents.

The case is an appeal via certiorari from the decision of the Court of Appeals and its resolution denying
reconsideration, reversing that of the Regional Trial Court, Iloilo, Branch 323 and declaring void the
special proceedings instituted therein by petitioners to authorize petitioner Gilda L. Jardeleza, in view
of the comatose condition of her husband, Ernesto Jardeleza, Sr., with the approval of the court, to
dispose of their conjugal property in favor of co-petitioners, their daughter and son in law, for the
ostensible purpose of "financial need in the personal, business and medical expenses of her
‘incapacitated’ husband."

The facts, as found by the Court of Appeals, are as follows:

"This case is a dispute between Teodoro L. Jardeleza (herein respondent) on the one hand, against his
mother Gilda L. Jardeleza, and sister and brother-in-law, the spouses Jose Uy and Glenda Jardeleza
(herein petitioners) on the other hand. The controversy came about as a result of Dr. Ernesto Jardeleza,
Sr.’s suffering of a stroke on March 25, 1991, which left him comatose and bereft of any motor or mental
faculties. Said Ernesto Jardeleza, Sr. is the father of herein respondent Teodoro Jardeleza and husband
of herein private respondent Gilda Jardeleza.

"Upon learning that one piece of real property belonging to the senior Jardeleza spouses was about to
be sold, petitioner Teodoro Jardeleza, on June 6, 1991, filed a petition (Annex "A") before the R.T.C. of
Iloilo City, Branch 25, where it was docketed as Special Proceeding No. 4689, in the matter of the
guardianship of Dr. Ernesto Jardeleza, Sr. The petitioner averred therein that the present physical and
mental incapacity of Dr. Ernesto Jardeleza, Sr. prevent him from competently administering his
properties, and in order to prevent the loss and dissipation of the Jardelezas’ real and personal assets,
there was a need for a court-appointed guardian to administer said properties. It was prayed therein
that Letters of Guardianship be issued in favor of herein private respondent Gilda Ledesma Jardeleza,
wife of Dr. Ernesto Jardeleza, Sr. It was further prayed that in the meantime, no property of Dr. Ernesto
Jardeleza, Sr. be negotiated, mortgaged or otherwise alienated to third persons, particularly Lot No.
4291 and all the improvements thereon, located along Bonifacio Drive, Iloilo City, and covered by T.C.T.
No. 47337.

"A few days later, or on June 13, 1991, respondent Gilda L. Jardeleza herself filed a petition docketed
as Special Proceeding NO. 4691, before Branch 32 of the R.T.C. of Iloilo City, regarding the declaration
of incapacity of Ernesto Jardeleza, Sr., assumption of sole powers of administration of conjugal
properties, and authorization to sell the same (Annex "B"). Therein, the petitioner Gilda L. Jardeleza
averred the physical and mental incapacity of her husband, who was then confined for intensive medical
care and treatment at the Iloilo Doctor’s Hospital. She signified to the court her desire to assume sole
powers of administration of their conjugal properties. She also alleged that her husband’s medical
treatment and hospitalization expenses were piling up, accumulating to several hundred thousands of
pesos already. For this, she urgently needed to sell one piece of real property, specifically Lot No. 4291
and its improvements. Thus, she prayed for authorization from the court to sell said property.

"The following day, June 14, 1991, Branch 32 of the R.T.C. of Iloilo City issued an Order (Annex "C")
finding the petition in Spec. Proc. No. 4691 to be sufficient in form and substance, and setting the
hearing thereof for June 20, 1991. The scheduled hearing of the petition proceeded, attended by therein
petitioner Gilda Jardeleza, her counsel, her two children, namely Ernesto Jardeleza, Jr., and Glenda
Jardeleza Uy, and Dr. Rolando Padilla, one of Ernesto Jardeleza, Sr.’s attending physicians.

"On that same day, June 20, 1991, Branch 32 of the RTC of Iloilo City rendered its Decision (Annex "D"),
finding that it was convinced that Ernesto Jardeleza, Sr. was truly incapacitated to participate in the
administration of the conjugal properties, and that the sale of Lot No. 4291 and the improvements
thereon was necessary to defray the mounting expenses for treatment and Hospitalization. The said
court also made the pronouncement that the petition filed by Gilda L. Jardeleza was "pursuant to Article
124 of the Family Code, and that the proceedings thereon are governed by the rules on summary
proceedings sanctioned under Article 253 of the same Code x x x.

"The said court then disposed as follows:

"WHEREFORE, there being factual and legal bases to the petition dated June 13, 1991, the Court hereby
renders judgment as follows:

"1) declaring Ernesto Jardeleza, Sr., petitioner’s husband, to be incapacitated and unable to
participate in the administration of conjugal properties;
"2) authorizing petitioner Gilda L. Jardeleza to assume sole powers of administration of their conjugal
properties; and

"3) authorizing aforesaid petitioner to sell Lot No. 4291 of the Cadastral Survey of Iloilo, situated in
Iloilo City and covered by TCT No. 47337 issued in the names of Ernesto Jardeleza, Sr. and Gilda L.
Jardeleza and the buildings standing thereof.

"SO ORDERED.

"On June 24, 1991, herein petitioner Teodoro Jardeleza filed his Opposition to the proceedings before
Branch 32 in Spec. Proc. Case No. 4691, said petitioner being unaware and not knowing that a decision
has already been rendered on the case by public respondent.

"On July 3, 1991, herein petitioner Teodoro Jardeleza filed a motion for reconsideration of the judgment
in Spec. Proc. No. 4691 and a motion for consolidation of the two cases (Annex "F"). He propounded the
argument that the petition for declaration of incapacity, assumption of sole powers of administration,
and authority to sell the conjugal properties was essentially a petition for guardianship of the person
and properties of Ernesto Jardeleza, Sr. As such, it cannot be prosecuted in accordance with the
provisions on summary proceedings set out in Article 253 of the Family Code. It should follow the
rules governing special proceedings in the Revised Rules of Court which require procedural due
process, particularly the need for notice and a hearing on the merits. On the other hand, even if Gilda
Jardeleza’s petition can be prosecuted by summary proceedings, there was still a failure to comply with
the basic requirements thereof, making the decision in Spec. Proc. No. 4691 a defective one. He further
alleged that under the New Civil Code, Ernesto Jardeleza, Sr. had acquired vested rights as a conjugal
partner, and that these rights cannot be impaired or prejudiced without his consent. Neither can he be
deprived of his share in the conjugal properties through mere summary proceedings. He then restated
his position that Spec. Proc. No. 4691 should be consolidated with Spec. Proc. No. 4689 which was filed
earlier and pending before Branch 25.

"Teodoro Jardeleza also questioned the propriety of the sale of Lot No. 4291 and the improvements
thereon supposedly to pay the accumulated financial obligations arising from Ernesto Jardeleza, Sr.’s
hospitalization. He alleged that the market value of the property would be around Twelve to Fifteen
Million Pesos, but that he had been informed that it would be sold for much less. He also pointed out
that the building thereon which houses the Jardeleza Clinic is a monument to Ernesto Jardeleza Sr.’s
industry, labor and service to his fellowmen. Hence, the said property has a lot of sentimental value to
his family. Besides, argued Teodoro Jardeleza, then conjugal partnership had other liquid assets to pay
off all financial obligations. He mentioned that apart from sufficient cash, Jardeleza, Sr. owned stocks of
Iloilo Doctors’ Hospital which can be off-set against the cost of medical and hospital bills. Furthermore,
Ernesto Jardeleza, Sr. enjoys certain privileges at the said hospital which allows him to pay on
installment basis. Moreover, two of Ernesto Jardeleza Sr.’s attending physicians are his own sons who do
not charge anything for their professional services.

"On July 4, 1991, Teodoro Jardeleza filed in Spec. Proc. No. 4691 a supplement to his motion for
reconsideration (Annex "G"). He reiterated his contention that summary proceedings was irregularly
applied. He also noted that the provisions on summary proceedings found in Chapter 2 of the Family
Code comes under the heading on "Separation in Fact Between Husband and Wife" which contemplates
of a situation where both spouses are of disposing mind. Thus, he argued that were one spouse is
"comatose without motor and mental faculties," the said provisions cannot be made to apply.

"While the motion for reconsideration was pending, Gilda Jardeleza disposed by absolute sale Lot No.
4291 and all its improvements to her daughter, Ma. Glenda Jardeleza Uy , for Eight Million Pesos
(P8,000,000.00), as evidenced by a Deed Absolute Sale dated July 8, 1991 executed between them (p.
111, Rollo). Under date of July 23, 1991, Gilda Jardeleza filed an urgent ex-parte motion for approval of
the deed of absolute sale.

"On August 12, 1991 Teodoro Jardeleza filed his Opposition to the motion for approval of the deed of
sale on the grounds that: (1) the motion was prematurely filed and should be held in abeyance until the
final resolution of the petition; (2) the motion does not allege nor prove the justifications for the sale;
and (3) the motion does not allege that had Ernesto Jardeleza, Sr. been competent, he would have given
his consent to the sale.

"On December 19, 1991, the said court issued an Order (Annex "M") denying herein petitioner’s
motion for reconsideration and approving respondent Jardeleza’s motion for approval of the deed of
absolute sale. The said court ruled that:

On December 9, 1992, the Court of Appeals promulgated its decision reversing the appealed decision
and ordering the trial court to dismiss the special proceedings to approve the deed of sale, which was
also declared void.

On December 29, 1992, petitioners filed a motion for reconsideration, however, on March 29, 1993, the
Court of Appeals denied the motion, finding no cogent and compelling reason to disturb the decision.7
Hence, this appeal.

ISSUE:

whether petitioner Gilda L. Jardeleza as the wife of Ernesto Jardeleza, Sr. who suffered a stroke, a
cerebrovascular accident, rendering him comatose, without motor and mental faculties, and could not
manage their conjugal partnership property may assume sole powers of administration of the
conjugal property under Article 124 of the Family Code and dispose of a parcel of land with its
improvements, with the approval of the court in a summary proceedingS.

RULING: YES

The Court of Appeals ruled that in the condition of Dr. Ernesto Jardeleza, Sr., the procedural rules on
summary proceedings in relation to Article 124 of the Family Code are not applicable. Because Dr.
Jardeleza, Sr. was unable to take care of himself and manage the conjugal property due to illness that
had rendered him comatose, the proper remedy was the appointment of a judicial guardian of the
person or estate or both of such incompetent, under Rule 93, Section 1, 1964 Revised Rules of Court.
Indeed, petitioner earlier had filed such a petition for judicial guardianship.

Article 124 of the Family Code provides as follows:

"ART. 124. The administration and enjoyment of the conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the husband’s 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 conjugal properties, the other spouse may assume sole powers of administration. These powers
do not include the powers of disposition or encumbrance which must have 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. (165a)."

In regular manner, the rules on summary judicial proceedings under the Family Code govern the
proceedings under Article 124 of the Family Code. The situation contemplated is one where the spouse
is absent, or separated in fact or has abandoned the other or consent is withheld or cannot be
obtained. Such rules do not apply to cases where the non-consenting spouse is incapacitated or
incompetent to give consent. In this case, the trial court found that the subject spouse "is an
incompetent" who was in comatose or semi-comatose condition, a victim of stroke, cerebrovascular
accident, without motor and mental faculties, and with a diagnosis of brain stem infarct. In such case,
the proper remedy is a judicial guardianship proceedings under Rule 93 of the 1964 Revised Rules of
Court.

Even assuming that the rules of summary judicial proceedings under the Family Code may apply to the
wife's administration of the conjugal property, the law provides that the wife who assumes sole powers
of administration has the same powers and duties as a guardian under the Rules of Court.

Consequently, a spouse who desires to sell real property as such administrator of the conjugal property
must observe the procedure for the sale of the ward’s estate required of judicial guardians under Rule
95, 1964 Revised Rules of Court, not the summary judicial proceedings under the Family Code.

In the case at bar, the trial court did not comply with the procedure under the Revised Rules of Court.
Indeed, the trial court did not even observe the requirements of the summary judicial proceedings
under the Family Code. Thus, the trial court did not serve notice of the petition to the incapacitated
spouse; it did not require him to show cause why the petition should not be granted.

Hence, we agree with the Court of Appeals that absent an opportunity to be heard, the decision
rendered by the trial court is void for lack of due process. The doctrine consistently adhered to by this
Court is that a denial of due process suffices to cast on the official act taken by whatever branch of the
government the impress of nullity. A decision rendered without due process is void ab initio and may be
attacked directly or collaterally. "A decision is void for lack of due process if, as a result, a party is
deprived of the opportunity of being heard. "A void decision may be assailed or impugned at any time
either directly or collaterally, by means of a separate action, or by resisting such decision in any action or
proceeding where it is invoked."

WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals in CA-G. R. SP No. 26936, in toto.

G.R. No. 147148 January 13, 2003

PILAR Y. GOYENA, petitioner,

vs.

AMPARO LEDESMA-GUSTILO, respondent.

From the Court of Appeals June 19, 2000 Decision which affirmed that of the Regional Trial Court (RTC)
of Makati, Branch 149 in Special Proceeding No. N-4375 appointing herein respondent Amparo
Ledesma Gustilo as guardian over the person and property of her sister Julieta Ledesma, Pilar Y.
Goyena, Julieta's close friend and companion of more than 60 years, comes to this Court on petition for
review on certiorari.

On July 8, 1996, respondent filed at the RTC of Makati a "PETITION FOR LETTERS OF
GUARDIANSHIP"over the person and properties of her sister Julieta, the pertinent allegations of which
read:

2. That for the most part during the year 1995 and 1996, Julieta Ledesma has been a patient in the
Makati Medical Center where she is under medical attention for old age, general debility, and a
"mini"-stroke which she suffered in the United States in early 1995;

3. That Julieta Ledesma is confined to her bed and can not get up from bed without outside assistance,
and she has to be moved by wheel chair;

4. That Julieta Ledesma owns real estate and personal properties in Metro Manila and in Western
Visayas, with an aggregate estimated assessed and par value of P1 Million Pesos[;]

5. That Julieta Ledesma is not in a position to care for herself, and that she needs the assistance of a
guardian to manage her interests in on-going corporate and agricultural enterprises;

6. That the nearest of kin of Julieta Ledesma are her sisters of the full blood, namely, petitioner Amparo
Ledesma Gustilo, Teresa Ledesma (aka. Sister Cristina of the Religious of the Assumption, and Loreto
Ledesma Mapa, all of whom have given their consent to the filing of this petition as shown by their
signatures at the bottom of this petition[;]

7. That petitioner has extensive experience in business management of commercial, agricultural and
corporate enterprises, many of which are in the same entities where Julieta Ledesma holds an interest,
and that she is in a position to monitor and supervise the delivery of vitally needed medical services to
Julieta Ledesma whether in the Metro Manila area, or elsewhere.

Petitioner filed an Opposition to the petition for letters of guardianship. She later filed an Amended
Opposition on August 15, 1996 reading in part:
2.03 The petition lacked factual and legal basis in that Julieta Ledesma is competent and sane and
there is absolutely no need to appoint a guardian to take charge of her person/property. She is very
able to take charge of her affairs, and this is clearly evident from her letters to the petitioner. Copies of
her recent letters are herewith attached as Annexes "A" to "E."

xxx xxx xxx

2.05 Petitioner is not fit to be appointed as the guardian of Julieta Ledesma since their interests are
antagonistic (Sudler v. Sudler, 121 Md. 46. 49 L.R.A. 800, as cited in vol. V-B Francisco Revised Rules of
Court, Rule 93, Section 4, p. 414).

xxx xxx xxx

3.01 The above captioned petition should be dismissed for utter lack of legal and/or factual basis.

3.02 In the remote event that this Honorable Court should find that Julieta Ledesma is incompetent and
resolve that there is need to appoint a guardian over her person and property, this Honorable Court
should appoint as such guardian:

1. Oppositor Goyena;

2. Bart Lacson;

3. Fely Montelibano;

4. Jose T. Revilla; or

5. a qualified and reputable person as may be determined fit by this Honorable Court.
By Decision2 of October 4, 1996, the trial court found Julieta "incompetent and incapable of taking
care of herself and her property" and appointed respondent as guardian of her person and properties,
ratiocinating as follows:

A perusal of the records shows that petitioner (Amparo) is 72 years of age, the youngest sister of Julieta.
Admittedly, the Oppositor Pilar Goyena, 90 years of age has been the close friend and companion of
Julieta for 61 years. Julieta was with Oppositor when she suffered her first stroke in Makati in 1991
which was the reason why Julieta had to give up the management of their hacienda in Bacolod. It is also
not disputed that Julieta was with Pilar when she had her second stroke in the U.S. In short, the special
bond of friendship existing between Julieta and the Oppositor cannot be denied. Now that Julieta is
unable to manage her personal life and business concerns due to senility and "vascular dementia," the
oppositor wants to be appointed her guardian or else Bart Lacson, Fely Montelibano and Jose T. Revilla.

It is interesting to note that the oppositor has interposed her objection to the appointment of Amparo
as guardian because she thinks that the latter dislikes her. She further added that there were a number
of letters allegedly written by Julieta to Amparo which showed Julieta's sentiments regarding certain
matters. Nevertheless, not one of the nearest of kin of Julieta opposed the petition. As a matter of fact,
her sisters signified their conformity thereto. Thus, Ms. Goyena's mere conjecture that Amparo dislikes
her is no sufficient reason why the petition should be denied. Neither does it make Amparo unsuitable
and unfit to perform the duties of a guardian. On the contrary, it is Ms. Goyena who could be considered
as to have an adverse interest to that of Julieta if it is true that 50% of Julieta's holdings at the Makati
Medical Center has been transferred to her as alleged in Exhibit 1 and Exhibit A.

By and large, the qualification of Amparo to act as guardian over the person and properties of Julieta
has been duly established. As a sister, she can best take care of Julieta's concerns and well being. Now
that Julieta is in the twilight of her life, her family should be given the opportunity to show their love and
affection for her without however denying Pilar Goyena access to her considering the special bond of
friendship between the two. Needless to say, the oppositor at 90 years of age could not be said to be
physically fit to attend to all the needs of Julieta.

WHEREFORE, petitioner Amparo Gustilo, is hereby appointed guardian over the person and property
of Julieta Ledesma, an incompetent with all the powers and duties specified under the law.

Accordingly, let letters of guardianship issue to petitioner upon her filing of a bond in the amount of
P200,000.00 to guarantee the performance of the obligations prescribed for general guardians.

On appeal of petitioner, the Court of Appeals affirmed the trial court's decision on the following
ratiocination:
Indeed, oppositor-appellant (Pilar) has not shown the authenticity and due execution of the letters
which purport to show the existence of a rift between Julieta and her family and dissatisfaction as to
how the businesses were managed. At any rate, while it is correct to say that no person should be
appointed guardian if his interest conflict with those of the ward (Guerrero vs. Teran, 13 Phil. 212),
there are really no antagonistic interests to speak of between petitioner [Amparo] and Julieta, they
being co-owners of certain properties. There is also no showing that petitioner's business decisions in
the past had resulted in the prejudice of Julieta.

While the oppositor may have been very close to Julieta, there is no sufficient showing that petitioner
is hostile to the best interests of the latter. On the contrary, it was the petitioner who, realizing the
need for the appointment of a person to guard her sister's interests, initiated the petition for
guardianship. We see no indication that petitioner is animated by a desire to prejudice Julieta's health
as well as financial interests. In point of fact, it was oppositor-appellant who had initially concealed
the deteriorating state of mind of Julieta from the court. Oppositor's advanced age of 90 years also
militate against her assuming the guardianship of the incompetent. The oppositor has declared that she
is not interested to be appointed legal guardian (p. 21[,] Appellant's Brief, Rollo, p. 59). But the persons
that she points to as being better choices as Julieta's guardian over the appellee have not acted, nor
even indicated, their desire to act as such. In any case, We see no cogent reason why We should reverse
the well-reasoned disquisition of the trial court.

Petitioner's Motion for Reconsideration of the Court of Appeals decision having been denied, she filed
the present petition which proffers that:

ISSUE:

whether or not the appellate court and the trial court erred in finding that respondent is suitable for
appointment as guardian of the person and properties of Julieta.

RULING: NO

In the case at bar, petitioner has not shown that the lower courts committed any error.

Petitioner cannot rely on Garchitorena v. Sotelo with respect to the existence of antagonistic interests
between respondent and Julieta. In that case, the interest of Perfecto Gabriel as creditor and
mortgagee of the minor-wards' properties (a house and lot) is antagonistic to the interest of the wards
as mortgagors, hence, Gabriel's appointment as guardian was erroneous. For while he sought to
foreclose the wards' properties as creditor and mortgagee on one hand, he had to, on the other hand,
endeavor to retain them for the wards as their guardian. Added to that was Gabriel's appointment as
guardian without him informing the guardianship court that he held a mortgage on the properties.
Furthermore, he deliberately misinformed the said court that the first mortgagee was the Santa Clara
Monastery when it was him. None of the said circumstances obtain in the present case.

Petitioner can neither rely on certain letters of Julieta to establish her claim that there existed a rift
between the two which amounts to antagonistic interests.

Petitioner's assertion that respondent's intent in instituting the guardianship proceedings is to take
control of Julieta's properties and use them for her own benefit is purely speculative and finds no
support from the records.

The claim that respondent is hostile to the best interests of Julieta also lacks merit. That respondent
removed Julieta from the Makati Medical Center where she was confined after she suffered a stroke
does not necessarily show her hostility towards Julieta, given the observation by the trial court, cited in
the present petition, that Julieta was still placed under the care of doctors after she checked out and
was returned to the hospital when she suffered another stroke.

Finally, this Court notes two undisputed facts in the case at bar, to wit: 1) Petitioner opposed the
petition for the appointment of respondent as guardian before the trial court because, among other
reasons, she felt she was disliked by respondent, a ground which does not render respondent unsuitable
for appointment as guardian, and 2) Petitioner concealed the deteriorating state of mind of Julieta
before the trial court, which is reflective of a lack of good faith.

Discussion of the third argument is unnecessary, the suitability of Amparo for appointment as guardian
not having been successfully contested.

ACCORDINGLY, for lack of merit, the petition is hereby DISMISSED.

[ A.M. No. 02-6-02-SC, July 31, 2002 ]

RE: PROPOSED RULE ON ADOPTION

RESOLUTION
Acting on the proposal of the Committee on Revision of the Rules of Court, the Court resolved to
APPROVE the Proposed Rule on Adoption (Domestice and Inter-Country)

The Rule shall take effect on August 22, 2002 following its publication in newpaper of general
circulation.

July 31, 2002.

(SGD.) HILARIO G.DAVIDE, JR.

Chief Justice

(SGD.) JOSUE N. BELLOSILLO

(SGD.) REYNATO S. PUNO

Associate Justice

Associate Justice

(SGD.) JOSE C. VITUG

(SGD.) SANTIAGO M. KAPUNAN

Associate Justice

Associate Justice

(SGD.) VICENTE V. MENDOZA

(SGD.) ARTEMIO V. PANGANIBAN

Associate Justice

Associate Justice

(SGD.) LEONARDO A. QUISUMBING

(SGD.) CONSUELO YNAREZ-SANTIAGO

Associate Justice
Associate Justice

(SGD.) ANGELINA SANDOVAL-GUTIERREZ

(SGD.) ANTONIO T. CARPIO

Associate Justice

Associate Justice

(SGD.) MA. ALICIA AUSTRIA-MARTINEZ

(SGD.) RENATO C. CORONA

Associate Justice

Associate Justice

RULE ON ADOPTION

A. DOMESTICE ADOPTION

SECTION 1. Applicabily of the Rule.- This Rule covers the domestic adoption of Filipino children.

SEC. 2. Objective.- (a) The best interests of the child shall be the paramount consideration in all matters
relating to his care, custody and adoption 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 Children with Special References to Foster Placement and Adoption, Nationally
and Internationally, and the Hague Convention on the Protection of Children and Cooperation in Respect
of Inter-country Aoption.

(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 cusody 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 to appropriate placement or adoption within the child's extended
familu is available shall adoption by an unrelated person be considered.
(ii) safeguard the biological parents from making hasty decisions in relinquising 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 domestice adoption applications and offer adoption-related services including, but not limited
to, parent preparation and post-adoption education and counselling;

(vi) encourage domestice adoption so as to preserve the child's identity and culture in his native land,
and only when this is not available shall inter-country adoption be considered as a last resort; and

(vii) protect adoptive parents form attempts to disturb their parental authority and custody over their
adopted child.

Any voluntary or involuntary termination of parental auhority shall be administratively or judicially

declared so as to establish the status 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 purpose of this Rule:

(a) "Child" is a person below eighteen (18) years of age at the time of the filling of the petition for
adoption.

(b) "A child legally available for adoption" refers to a chilD who has been voluntary or involuntary
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 recision of adoption, his guardian
or adopter(s).
(c) "Voluntary committed child" is one whose parents knowingly and willingly relinquish parental
authority over him in favor of the Department.

(d) "Involuntary commited 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 relatives
are unknown; or child committed to an orphanage or charitable or similar institution with unknown facts
or 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
attend to, physically or emotionally, by his parents or guardian.

(i) "Physical neglect" occurs when the child is malnourished, ill-clad and without proper shelther.

(j) "Emotional neglect" exists when a child is raped, seduced, meltreated, exploited, overworked or
made to work under conditions not conductive to good health or made to beg in the streets or public
placesm 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 preparign 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.

(m) "Department" refers to the Department of Social Welfare and Development.

(n) "Deed of Voluntary Commitment" refers to the written and notarized instrument relinquished
parental authority and committing the child to the care and custody of the Department executed by the
child's biological parents or in their absence, mental incapacity or death, by the child's legal guardian, to
be witnessed by the 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 workeer of the child's 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
adjustement and emotional readiness of both adopters and adoptee on stabilizing their final
relationship.

(r) "Licensed Social Worker" refers to one who possesses a degree in bachelor of science in social worker
as a minimum educational requirement and who has passed the government licensure examination for
social workers are required by Republic Act No. 4373.

(s) "Simulation of birth" is the tempering 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 child's mother and father by nature.
(u) "Pre-Adoption Services" refer to psycho-social 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, 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 person's actual stay in the Philippines for three (3) continuous years
immediately prior to the filling 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 capacity and legal rights, of good moral
character, has not been convicted of any crime involving motal 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 16-year difference between the age of the adopter and the adoptee may be waived
when the adopter is biological parent of the adoptee or is the spouse of the adoptee's point;

(2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That
his country has diplomatic relations with the Rpublic of the Philippines, that has been living in the
Philippines for at least three (3) continuous years prior to the filling of the petition for adoption and
maintains such residence until the adoption decree is entered, that he has been certified by the
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 alien's 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 consaguinity
or affinity; or
(ii) on 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) decree of consiguinity or affinity of Filipino spouse.

(3) The guardian with respect to the ward after the termination of the guardianship and clearance of his
financial accountabilities.

House and wife shall jointly adopt, except in the following cases:

(1) 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 spouse are legally separated from each other.

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, jointly
parental authority shall be exercised by the spouses.

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 1156 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.

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 neglect.

1) If the adopter is a Filipino citizen, the petition shall allege the following:

(a) The jurisdiction facts;

(b) That the petitioner is of legal age, in possesion 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 adopter's paretn; 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 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 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 filling of
the petition and he maintains such residence until the adoption decree is entered.

The requirements of certification of the alien's qualification to adopt in his country and residency may
be waived if the alien:

(1) is a former Filipino citizen who seeks to adopt a relative within the fourth degree of consiguinity 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 consaguinity or affinity of the Filipino spouse.

3) Is the adopter is the legal guardian of the adoptee, the petition shall allege the 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
therto, or
(c) if the spouse 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 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 marraige.

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 state 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 of the 1997 Rules of
Civil Procedure.

SEC. 8. Ratification of Simulated Birth.- In case the petition also seeks rectification of a simulated of
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 effecitivity of Republic Act No. 8552 and the
application for rectification of the birth resignation 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 consistenly considered and treated by petitioner as his own child.

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

(d) That the Department, child-placement or child-caring agency is authorized to gice its consent.

SEC. 10. Change of name.- In case the petition also prays for change for name, the title 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 petiton:
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 over;

The biological parents of the child, if known, or the legal guardian or the child-placement agency, child-
caring agency, or the proper government instrumentality which ahs legal custody of the child;

The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10) years of
age or over;

The illegitimate children of the adopter living with him who are ten (10) years of age or over; and

The spose, if any, of the adopter or adoptee.

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 country and that
his government allows to 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 his biological parents
of the adoptee, if any.

SEC. 12. Order of Hearing .- If the petition and attachments are sufficient in form and substance, the
court shall issue and 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 the hearing at least
once a week for three successive weeks in a 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 not 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 is such reports had not been attached to the petition due to availability at the
time of the filling 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 courtm 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
concerend social worker shall verify wit the Civil Registry the real indentity 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 in
support thereof are valid and authentic, that the adopter has sincere intentions and that the adoption
shall insure 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 ground 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 or the court on the date set for hearing.

The court shall verfy 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 stengthen 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 child-placement or child-caring agency which submitted and
prepared the case studies. During the 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 interest of the adoptee, stating the reason therefor.

An alien adopter however must completer 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 Filipino citizen and seeks to adopt jointly with his or her spouse the latter's
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 rebound 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:

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 Registar
where the court issuing the same is situated.

3) the Civil Registrar of the place where the adoptee was registered:

to annotate on the adoptee's original certificate of birth the decree of adoption within thirty (30) days
from receipt of the certificate of finality;

to issue a certificate of birth which shall not bear any notification that it is a new or amended certificate
and which shall show, among others, the following: registry number, date of resignation, 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 marraige, when applicable;

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

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.

If the adoptee is foundling, the court shall order the Civil Registar 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. 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 reason
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.

SEC. 19. Recission 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, of if he
is over eighteen (18) years of age but is incapacitated, by 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) attempt on the life of the adoptee;

3) sexual assault or violence; or

4) abandonment of failure to comply with parental obligations.

Adoption, being in the best interests of the child, shall not be subject to recission by the adopter.
However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

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
recission or revocationof adoption within five (5) years after he reaches the age of majority, or if he
was imcompetent 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 a copy thereof. The order and copy of the petition shall
be served on the adversed 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 recission of adoption, with our without costs, as justice requires.

The court shall order that the parental authority of 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 the successional rights shall revert to its status prior to adoption, as of
the date of judgment of judicial recission. Vested rights acquired prior to judicial recission shall be
respected.

It shall also order the adoptee to use the name stated in his original birth foundling certificate.

The court shall further order the Civil Registrar where the adoption decree was registered to cancel
the new birth certificate of 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 a finality
issued by the Branch Clerk of Court which rendered the decision in accordance with the preceeding
Section shall be served by the petition upon the Civil Registrar concered within thirty (300 days from
receipt of the certificate of finality. The Civil Registrar shall forthwith enter the recission 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 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 this 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 latter Inter-Country Adoption Board.

SEC. 29. Who may be adopted.- Anly a child legally available for domestic adoption may be the subject
of inter-country adoption.

SEC. 30. Contents of Petition.- The petitioner must allege:

a) his age and the age of the child to be adopted, showing that he is at least twenty-seven (27) years of
agr 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 to age difference does not apply;

b) if married, the name of the spouse who must be joined as a 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 U.N.
Convention on the Rights of the Child, and to abide by the rules and regulations to implement the
provisions of Republic Act No. 8043;

h) that the comes from a country with which the Philipines 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.

SEC. 31. Annexes.- The petitions 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 judment dissolving the
marriage;

c) Sworn statement of consent of petitioner's evaluation of the petitioner's 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 filling of the petitioner;

g) Character reference fom the local church/minister, the petitioner 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 petitoner and his immediate family taken at least six (6)
months before the filling 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.

Republic Act No. 8552 February 25, 1998

 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."

Section 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 child's
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 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 child's identity and culture in his/her native land,
and only when this is not available shall intercountry adoption be considered as a last resort.

Section 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.

(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 filial 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

Section 4. Counseling Service. – 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 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 child's 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.

Section 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.

Section 6. Support Services. – The Department shall develop a pre-adoption program which shall
include, among others, the above mentioned services.

ARTICLE III

ELIGIBILITY

Section 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 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/her children in keeping with the means of the family. The
requirement of sixteen (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 adoptee's 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 alien's 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 the legitimate 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 the 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.

Section 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).

Section 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 latter's spouse, if any; and

(e) The spouse, if any, of the person adopting or to be adopted.

ARTICLE IV
PROCEDURE

Section 10. Hurried Decisions. – In all proceedings for adoption, the court shall require proof that the
biological parent(s) has been 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.

Section 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 recommendations on the matter to the court hearing such
petition.

At the time of preparation of the adoptee's case study, the concerned social worker shall confirm 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 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.

Section 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) months 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, 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).

Section 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.

Section 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.

Section 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.

ARTICLE V

EFFECTS OF ADOPTION

Section 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).
Section 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.

Section 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 biological parent(s) had left a will, the law on testamentary succession shall govern.

ARTICLE VI

RESCISSION OF ADOPTION

Section 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.

Section 20. Effects of Rescission. – If the petition is granted, the parental authority of the adoptee's
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.

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

Section 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
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.

Section 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 specified in Article IV of this Act and other requirements as determined by the
Department.

ARTICLE VIII

FINAL PROVISIONS

Section 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.

Section 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 child-caring agencies shall formulate the necessary guidelines to make the provisions
of this Act operative.

Section 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.

Section 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.

Section 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.

Section 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

REPUBLIC ACT No. 9523 March 12, 2009

AN ACT REQUIRING CERTIFICATION OF THE DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT

(DSWD) TO DECLARE A "CHILD LEGALLY AVAILABLE FOR ADOPTION" AS A PREREQUISITE FOR
ADOPTION PROCEEDINGS, AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS OF REPUBLIC ACT
NO. 8552, OTHERWISE KNOWN AS THE DOMESTIC ADOPTION ACT OF 1998, REPUBLIC ACT NO. 8043,
OTHERWISE KNOWN AS THE INTER-COUNTRY ADOPTION ACT OF 1995, PRESIDENTIAL DECREE NO.
603, OTHERWISE KNOWN AS THE CHILD AND YOUTH WELFARE CODE, AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::

Section 1. Declaration of Policy. – It is hereby declared the policy of the State that alternative protection
and assistance shall be afforded to every child who is abandoned, surrendered, or neglected. In this
regard, the State shall extend such assistance in the most expeditious manner in the interest of full
emotional and social development of the abandoned, surrendered, or neglected child.

It is hereby recognized that administrative processes under the jurisdiction of the Department of Social
Welfare and Development for the declaration of a child legally available for adoption of abandoned,
surrendered, or neglected children are the most expeditious proceedings for the best interest and
welfare of the child.

Section. 2. Definition of Terms. – As used in this Act, the following terms shall mean:

(1) Department of Social Welfare and Development (DSWD) is the agency charged to implement the
provisions of this Act and shall have the sole authority to issue the certification declaring a child legally
available for adoption.

(2) Child refers to a person below eighteen (18) years of age or a person over eighteen (18) years of age
but is unable to fully take care of him/herself or protect himself/herself from abuse, neglect, cruelty,
exploitation, or discrimination because of physical or mental disability or condition.

(3) Abandoned Child refers to a child who has no proper parental care or guardianship, or whose
parent(s) have deserted him/her for a period of at least three (3) continuous months, which includes a
founding.

(4) Neglected Child refers to a child whose basic needs have been deliberately unattended or
inadequately attended within a period of three (3) continuous months. Neglect may occur in two (2)
ways:

(a) There is physical neglect when the child is malnourished, ill-clad, and without proper shelter. A child
is unattended when left by himself/herself without proper provisions and/or without proper
supervision.
(b) There is emotional neglect when the child is maltreated, raped, seduced, exploited, overworked, or
made to work under conditions not conducive to good health; or is made to beg in the streets or public
places; or when children are in moral danger, or exposed to gambling, prostitution, and other vices.

(5) Child Legally Available for Adoption refers to a child in whose favor a certification was issued by the
DSWD that he/she is legally available for adoption after the fact of abandonment or neglect has been
proven through the submission of pertinent documents, or one who was voluntarily committed by
his/her parent(s) or legal guardian.

(6) Voluntarily Committed Child is one whose parent(s) or legal guardian knowingly and willingly
relinquished parental authority to the DSWD or any duly accredited child-placement or child-caring
agency or institution.

(7) Child-caring agency or institution refers to a private non-profit or government agency duly accredited
by the DSWD that provides twenty-four (24) hour residential care services for abandoned, neglected, or
voluntarily committed children.

(8) Child-placing agency or institution refers to a private non-profit institution or government agency
duly accredited by the DWSD that receives and processes applicants to become foster or adoptive
parents and facilitate placement of children eligible for foster care or adoption.

(9) Petitioner refers to the head or executive director of a licensed or accredited child-caring or child-
placing agency or institution managed by the government, local government unit, non-governmental
organization, or provincial, city, or municipal Social Welfare Development Officer who has actual custody
of the minor and who files a certification to declare such child legally available for adoption, or, if the
child is under the custody of any other individual, the agency or institution does so with the consent of
the child's custodian.

(10) Secretary refers to the Secretary of the DSWD or his duly authorized representative.

(11) Conspicuous Place shall refer to a place frequented by the public, where by notice of the petition
shall be posted for information of any interested person.
(12) Social Case Study Report (SCSR) shall refer to a written report of the result of an assessment
conducted by a licensed social worker as to the social-cultural economic condition, psychosocial
background, current functioning and facts of abandonment or neglect of the child. The report shall also
state the efforts of social worker to locate the child's biological parents/relatives.

Section 3. Petition. – The petition shall be in the form of an affidavit, subscribed and sworn to before
any person authorized by law to administer oaths. It shall contain facts necessary to establish the merits
of the petition and shall state the circumstances surrounding the abandonment or neglect of the child.

The petition shall be supported by the following documents:

(1) Social Case Study Report made by the DSWD, local government unit, licensed or accredited child-
caring or child-placing agency or institution charged with the custody of the child;

(2) Proof that efforts were made to locate the parent(s) or any known relatives of the child. The
following shall be considered sufficient:

(a) Written certification from a local or national radio or television station that the case was aired on
three (3) different occasions;

(b) Publication in one (1) newspaper of general circulation;

(c) Police report or barangay certification from the locality where the child was found or a certified copy
of a tracing report issued by the Philippine National Red Cross (PNRC), National Headquarters (NHQ),
Social Service Division, which states that despite due diligence, the child's parents could not be found;
and

(d) Returned registered mail to the last known address of the parent(s) or known relatives, if any.

(3) Birth certificate, if available; and

(4) Recent photograph of the child and photograph of the child upon abandonment or admission to the
agency or institution.
Section 4. Procedure for the Filing of the Petition. – The petition shall be filed in the regional office of
the DSWD where the child was found or abandoned.

The Regional Director shall examine the petition and its supporting documents, if sufficient in form and
substance and shall authorize the posting of the notice of the petition conspicuous place for five (5)
consecutive days in the locality where the child was found.

The Regional Director shall act on the same and shall render a recommendation not later than five (5)
working days after the completion of its posting. He/she shall transmit a copy of his/her
recommendation and records to the Office of the Secretary within forty-eight (48) hours from the date
of the recommendation.

Section 5. Declaration of Availability for Adoption. – Upon finding merit in the petition, the Secretary
shall issue a certification declaring the child legally available for adoption within seven (7) working days
from receipt of the recommendation.

Said certification, by itself shall be the sole basis for the immediate issuance by the local civil registrar of
a foundling certificate. Within seven (7) working days, the local civil registrar shall transmit the founding
certificate to the National Statistic Office (NSO).

Section 6. Appeal. – The decision of the Secretary shall be appealable to the Court of Appeals within five
(5) days from receipt of the decision by the petitioner, otherwise the same shall be final and executory.

Section 7. Declaration of Availability for Adoption of Involuntarily Committed Child and Voluntarily
Committed Child. – The certificate declaring a child legally available for adoption in case of an
involuntarily committed child under Article 141, paragraph 4(a) and Article 142 of Presidential Decree
No. 603 shall be issued by the DSWD within three (3) months following such involuntary commitment.

In case of voluntary commitment as contemplated in Article 154 of Presidential Decree No. 603, the
certification declaring the child legally available for adoption shall be issued by the Secretary within
three (3) months following the filing of the Deed of Voluntary Commitment, as signed by the parent(s)
with the DSWD.
Upon petition filed with the DSWD, the parent(s) or legal guardian who voluntarily committed a child
may recover legal custody and parental authority over him/her from the agency or institution to which
such child was voluntarily committed when it is shown to the satisfaction of the DSWD that the parent(s)
or legal guardian is in a position to adequately provide for the needs of the child: Provided, That, the
petition for restoration is filed within (3) months after the signing of the Deed of Voluntary
Commitment.

Section 8. Certification. – The certification that a child is legally available for adoption shall be issued
by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature.

The certification, shall be, for all intents and purposes, the primary evidence that the child is legally
available in a domestic adoption proceeding, as provided in Republic Act No. 8552 and in an inter-
country adoption proceeding, as provided in Republic Act No. 8043.

Section. 9. Implementing Rules and Regulations. – The DSWD, together with the Council for Welfare of
Children, Inter-Country Adoption Board, two (2) representatives from licensed or accredited child-
placing and child-caring agencies or institution, National Statistics Office and Office of the Civil Registrar,
is hereby tasked to draft the implementing rules and regulations of this Act within sixty (60) days
following its complete publication.

Upon effectivity of this Act and pending the completion of the drafting of the implementing rules and
regulations, petitions for the issuance of a certification declaring a child legally available for adoption
may be filled with the regional office of the DSWD where the child was found or abandoned.

Section 10. Penalty. – The penalty of One hundred thousand pesos (P100,000.00) to Two hundred
thousand pesos (P200,000.00) shall be imposed on any person, institution, or agency who shall place a
child for adoption without the certification that the child is legally available for adoption issued by the
DSWD. Any agency or institution found violating any provision of this Act shall have its license to operate
revoked without prejudice to the criminal prosecution of its officers and employees.

Violation of any provision of this Act shall subject the government official or employee concerned to
appropriate administrative, civil and/or criminal sanctions, including suspension and/or dismissal from
the government service and forfeiture of benefits.

Section 11. Repealing Clause. – Sections 2(c)(iii), 3(b), (e) and 8(a) of Republic Act No. 8552, Section 3(f)
of Republic Act No. 8043, Chapter 1 of Title VII, and VIII of Presidential Decree No. 603 and any law,
presidential decree, executive order, letter of instruction, administrative order, rule, or regulation
contrary to or inconsistent with the provisions of this Act are hereby reprealed, modified or amended
accordingly.

Section 12. Separability Clause. – If any provision of this Act is held invalid or unconstitutional, the other
provisions not affected thereby shall remain valid and subsisting.

Section 13. Effectivity. – This Act shall take effect fifteen (15) days following its complete publication in
two (2) newspapers of general circulation or in the Official Gazette.

G.R. No. 164948 June 27, 2006

DIWATA RAMOS LANDINGIN Petitioner,

vs.

REPUBLIC OF THE PHILIPPINES, Respondent.

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision1 of
the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision2 of the Regional Trial Court
(RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner
herein.

The Antecedents

On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of
Filipino parentage and a resident of Guam, USA, filed a petition for the adoption of minors Elaine
Dizon Ramos who was born on August 31, 1986; Elma Dizon Ramos, who was born on September 7,
1987; and Eugene Dizon Ramos who was born on August 5, 1989. The minors are the natural children
of Manuel Ramos, petitioner’s brother, and Amelia Ramos.

Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990, the children
were left to their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to
Italy, re-married there and now has two children by her second marriage and no longer communicated
with her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of
the adoption; the minors are being financially supported by the petitioner and her children, and
relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children;
the minors have given their written consent to the adoption; she is qualified to adopt as shown by the
fact that she is a 57-year-old widow, has children of her own who are already married, gainfully
employed and have their respective families; she lives alone in her own home in Guam, USA, where she
acquired citizenship, and works as a restaurant server. She came back to the Philippines to spend time
with the minors; her children gave their written consent to the adoption of the minors. Petitioner’s
brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to
support the minors while in petitioner’s custody.

On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to
conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to
submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.
The Office of the Solicitor General (OSG) entered its appearance but deputized the City Prosecutor of
Tarlac to appear in its behalf. Since her petition was unopposed, petitioner was allowed to present her
evidence ex parte.

The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to
testify on the written consent executed by her and her siblings. The petitioner marked in evidence the
Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all
surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.

On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac,
submitted a Child Study Report, with the following recommendation:

In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible
for adoption because of the following reasons:

1. Minors’ surviving parent, the mother has voluntarily consented to their adoption by the paternal
aunt, Diwata Landingin this is in view of her inability to provide the parental care, guidance and support
they need. An Affidavit of Consent was executed by the mother which is hereto attached.

2. The three minors subject for adoption have also expressed their willingness to be adopted and joins
the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto attached. The minors
developed close attachment to the petitioners and they regarded her as second parent.

3. The minors are present under the care of a temporary guardian who has also family to look after. As
young adolescents they really need parental love, care, guidance and support to ensure their protection
and well being.
In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D.
Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is
hereby further recommended to be dispensed with considering that they are close relatives and that
close attachments was already developed between the petitioner and the 3 minors.17

Pagbilao narrated what transpired during her interview, as follows:

The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks
vacation. This is to enable her appear for the personal interview concerning the adoption of her
children.

The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the
death of their paternal grandmother and guardian. The paternal relatives including the petitioner who
attended the wake of their mother were very much concerned about the well-being of the three minors.
While preparing for their adoption, they have asked a cousin who has a family to stay with minors and
act as their temporary guardian.

The mother of minors was consulted about the adoption plan and after weighing the benefits of
adoption to her children, she voluntarily consented. She realized that her children need parental love,
guidance and support which she could not provide as she already has a second family & residing in Italy.
Knowing also that the petitioners & her children have been supporting her children up to the present
and truly care for them, she believes her children will be in good hands. She also finds petitioners in a
better position to provide a secured and bright future to her children.18

However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent
of Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary evidence to
prove that Amelia assents to the adoption.

On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision
granting said petition.

The OSG appealed the decision to the Court of Appeals on December 2, 2002. In its brief for the
oppositor-appellant, the OSG raised the following arguments:

I
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT
OF THE PROPOSED ADOPTEES’ BIOLOGICAL MOTHER.

II

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF THE
WRITTEN CONSENT OF THE PETITIONER’S CHILDREN AS REQUIRED BY LAW.

III

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONER’S FAILURE TO
ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES.

On April 29, 2004, the CA rendered a decision reversing the ruling of the RTC. It held that petitioner
failed to adduce in evidence the voluntary consent of Amelia Ramos, the children’s natural mother.
Moreover, the affidavit of consent of the petitioner’s children could not also be admitted in evidence as
the same was executed in Guam, USA and was not authenticated or acknowledged before a Philippine
consular office, and although petitioner has a job, she was not stable enough to support the children.

Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its Resolution
dated August 12, 2004.25

Petitioner, thus, filed the instant petition for review on certiorari on September 7, 2004, assigning the
following errors:

ISSUES:

(a) whether the petitioner is entitled to adopt the minors without the written consent of their
biological mother, Amelia Ramos;

(b) whether or not the affidavit of consent purportedly executed by the petitioner-adopter’s children
sufficiently complies with the law; and

(c) whether or not petitioner is financially capable of supporting the adoptees.

RULING: NO

The petition is denied for lack of merit.

It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,
that adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of
paramount consideration and are designed to provide homes, parental care and education for
unfortunate, needy or orphaned children and give them the protection of society and family in the
person of the adopter as well as to allow childless couples or persons to experience the joys of
parenthood and give them legally a child in the person of the adopted for the manifestation of their
natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill
these noble and compassionate objectives of the law.

However, in Cang v. Court of Appeals, the Court also ruled that the liberality with which this Court treats
matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the
rights and privileges of the adopted child arising therefrom, ever mindful that the paramount
consideration is the overall benefit and interest of the adopted child, should be understood in its proper
context and perspective. The Court’s position should not be misconstrued or misinterpreted as to
extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to
approve adoption proceedings is not to be anchored solely on best interests of the child but likewise,
with due regard to the natural rights of the parents over the child.

Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides:

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 latter’s souse, if any;

(e) The spouse, if any, of the person adopting or to be adopted.

The general requirement of consent and notice to the natural parents is intended to protect the natural
parental relationship from unwarranted interference by interlopers, and to ensure the opportunity to
safeguard the best interests of the child in the manner of the proposed adoption.

Clearly, the written consent of the biological parents is indispensable for the validity of a decree of
adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained
before his parental rights and duties may be terminated and re-established in adoptive parents. In this
case, petitioner failed to submit the written consent of Amelia Ramos to the adoption.

We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived
in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and
Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to
execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to
present Amelia Ramos as witness in support of the petition.

Petitioner, nonetheless, argues that the written consent of the biological mother is no longer
necessary because when Amelia’s husband died in 1990, she left for Italy and never came back. The
children were then left to the guidance and care of their paternal grandmother. It is the paternal
relatives, including petitioner, who provided for the children’s financial needs. Hence, Amelia, the
biological mother, had effectively abandoned the children. Petitioner further contends that it was by
twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia
and her child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD social
worker, was able to meet her, and during the meeting, Amelia intimated to the social worker that she
conformed to the adoption of her three children by the petitioner.

Petitioner’s contention must be rejected. When she filed her petition with the trial court, Rep. Act No.
8552 was already in effect. Section 9 thereof provides that if the written consent of the biological
parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as
claimed by petitioner, that the biological mother of the minors had indeed abandoned them, she
should, thus have adduced the written consent of their legal guardian.

Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct
which evinces a settled purpose to forego all parental duties. The term means neglect and refusal to
perform the filial and legal obligations of love and support. If a parent withholds presence, love, care,
the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in
effect, abandons the child.
Merely permitting the child to remain for a time undisturbed in the care of others is not such an
abandonment. To dispense with the requirement of consent, the abandonment must be shown to have
existed at the time of adoption.

In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that
Amelia Ramos had abandoned her children.

However, the Home Study Report of the DSWD Social Worker also stated the following:

IV. Background of the Case:

xxxx

Since the mother left for Italy, minors siblings had been under the care and custody of their maternal
grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves
as their guardian. The petitioner, together with her children and other relatives abroad have been
supporting the minor children financially, even during the time that they were still living with their
natural parents. Their mother also sends financial support but very minimal.

xxxx

V. Background Information about the Minors Being Sought for Adoption:

xxxx

As the eldest she tries her best to be a role model to her younger siblings. She helps them in their
lessons, works and has fun with them. She also encourages openness on their problems and concerns
and provides petty counseling. In serious problems she already consult (sic) her mother and petitioner-
aunt.

xxxx
In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a
happy and comfortable life. After the death of her husband, her in-laws which include the petitioner
had continued providing support for them. However being ashamed of just depending on the support
of her husband’s relatives, she decided to work abroad. Her parents are also in need of financial help as
they are undergoing maintenance medication. Her parents mortgaged their farm land which she used in
going to Italy and worked as domestic helper.

When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her
mother-in-law who returned home for good, however she died on November 2000.

While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners
since 1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian
residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is
amenable to it. He is providing his legitimate family regular support.

Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who
share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal
relatives are continuously providing support for most of the needs & education of minors up to present.

Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently
sever their mother-child relationship. She was merely impelled to leave the country by financial
constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly
obligations of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself,
she consulted her mother, Amelia, for serious personal problems. Likewise, Amelia continues to send
financial support to the children, though in minimal amounts as compared to what her affluent in-laws
provide.

Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of
severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall
then be vested on the adopter. It would thus be against the spirit of the law if financial consideration
were to be the paramount consideration in deciding whether to deprive a person of parental
authority over his/her children. More proof has to be adduced that Amelia has emotionally abandoned
the children, and that the latter will not miss her guidance and counsel if they are given to an adopting
parent. Again, it is the best interest of the child that takes precedence in adoption.

Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has
not been formally offered. The purpose for which the evidence is offered must be specified. The offer of
evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment only
and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence
for the purpose or purposes for which such document is offered, the same is merely a scrap of paper
barren of probative weight. Mere identification of documents and the markings thereof as exhibits do
not confer any evidentiary weight on documents unless formally offered.44

Petitioner failed to offer in evidence Pagbilao’s Report and of the Joint Affidavit of Consent
purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The joint
written consent of petitioner’s children45 was notarized on January 16, 2002 in Guam, USA; for it to be
treated by the Rules of Court in the same way as a document notarized in this country it needs to
comply with Section 2 of Act No. 2103,46 which states:

Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be

considered authentic if the acknowledgment and authentication are made in accordance with the
following requirements:

(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, chargé
d affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the
country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the
country to take acknowledgments of instruments or documents in the place where the act is done.

(b) The person taking the acknowledgment shall certify that the person acknowledging the instrument
or document is known to him, and that he is the same person who executed it, and acknowledged that
the same is his free act and deed. The certificate shall be under his official seal, if he is by law required to
keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary
public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary
public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister,
secretary of legation, chargé de affaires, consul, vice-consul, or consular agent of the Republic of the
Philippines, acting within the country or place to which he is accredited. The officer making the
authentication shall certify under his official seal that the person who took the acknowledgment was at
the time duly authorized to act as notary public or that he was duly exercising the functions of the office
by virtue of which he assumed to act, and that as such he had authority under the law to take
acknowledgment of instruments or documents in the place where the acknowledgment was taken, and
that his signature and seal, if any, are genuine.

As the alleged written consent of petitioner’s legitimate children did not comply with the afore-cited
law, the same can at best be treated by the Rules as a private document whose authenticity must be
proved either by anyone who saw the document executed or written; or by evidence of the genuineness
of the signature or handwriting of the makers.47
Since, in the instant case, no further proof was introduced by petitioner to authenticate the written
consent of her legitimate children, the same is inadmissible in evidence.

In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the
children and is only relying on the financial backing, support and commitment of her children and her
siblings.48 Petitioner contradicts this by claiming that she is financially capable as she has worked in
Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than
$1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial
backing should the need arise. The OSG, again in its comment, banks on the statement in the Home
Study Report that "petitioner has limited income." Accordingly, it appears that she will rely on the
financial backing of her children and siblings in order to support the minor adoptees. The law, however,
states that it is the adopter who should be in a position to provide support in keeping with the means of
the family.

Since the primary consideration in adoption is the best interest of the child, it follows that the financial
capacity of prospective parents should also be carefully evaluated and considered. Certainly, the
adopter should be in a position to support the would-be adopted child or children, in keeping with the
means of the family.

According to the Adoption Home Study Report4 forwarded by the Department of Public Health & Social
Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate
children, as the latter are already adults, have individual lives and families.

At the time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as
a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioner’s main intention in
adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua Subdivision in
Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that the limited income
might be a hindrance to the adoption proceedings.

Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the
financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather
of age. While petitioner claims that she has the financial support and backing of her children and
siblings, the OSG is correct in stating that the ability to support the adoptees is personal to the
adopter, as adoption only creates a legal relation between the former and the latter. Moreover, the
records do not prove nor support petitioner’s allegation that her siblings and her children are financially
able and that they are willing to support the minors herein. The Court, therefore, again sustains the
ruling of the CA on this issue.
While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew,
there are legal infirmities that militate against reversing the ruling of the CA. In any case, petitioner is
not prevented from filing a new petition for adoption of the herein minors.

WHEREFORE, premises considered, the petition is hereby DENIED.

G.R. Nos. 168992-93 May 21, 2009-SIMULATION OF BIRTH CASE

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM,

MONINA P. LIM, Petitioner.

The Case

This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the
Decision dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial
court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without prejudice the consolidated
petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.

The Facts

The following facts are undisputed. Petitioner (Monina Lim) is an optometrist by profession. On 23
June 1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents were
unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child
of their own, petitioner and Lim registered the children to make it appear that they were the
children’s parents. The children were named Michelle P. Lim (Michelle) and Michael Jude P. Lim
(Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on
15 March 1977. Michael was 11 days old when Ayuban brought him to petitioner’s clinic. His date of
birth is 1 August 1983.

The spouses reared and cared for the children as if they were their own. They sent the children to
exclusive schools. They used the surname "Lim" in all their school records and documents.
Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel Olario
(Olario), an American citizen.
Thereafter, petitioner decided to adopt the children by availing of the amnesty given under Republic
Act No. 8552 (RA 8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002,
petitioner filed separate petitions for the adoption of Michelle and Michael before the trial court
docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the petitions
for adoption, Michelle was 25 years old and already married, while Michael was 18 years and seven
months old.

Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of
Consent. Michael also gave his consent to his adoption as shown in his Affidavit of Consent. Petitioner’s
husband Olario likewise executed an Affidavit of Consent for the adoption of Michelle and Michael.

In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle
was considered as an abandoned child and the whereabouts of her natural parents were unknown.
The DSWD issued a similar Certification for Michael.

The Ruling of the Trial Court

On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court
ruled that since petitioner had remarried, petitioner should have filed the petition jointly with her
new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory
citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code.

Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order
dated 16 June 2005.

As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint
exercise of parental authority, the trial court ruled that joint adoption is not only for the purpose of
exercising parental authority because an emancipated child acquires certain rights from his parents
and assumes certain obligations and responsibilities.

Hence, the present petition.

Issue

whether or not petitioner, who has remarried, can singly adopt Michelle and Michael.
The Court’s Ruling: NO

We deny the petition.

Joint Adoption by Husband and Wife

It is undisputed that, at the time the petitions for adoption were filed, petitioner had already
remarried. She filed the petitions by herself, without being joined by her husband Olario. We have no
other recourse but to affirm the trial court’s decision denying the petitions for adoption. Dura lex sed
lex. The law is explicit. Section 7, Article III of RA 8552 reads:

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 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/her children in keeping with the means of the family. The
requirement of sixteen (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 adoptee’s 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 alien’s 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 spouses; 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 the legitimate 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 the 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. (Emphasis supplied)

The use of the word "shall" in the above-quoted provision means that joint adoption by the husband
and the wife is mandatory. This is in consonance with the concept of joint parental authority over the
child which is the ideal situation. As the child 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.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the
children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second,
the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally
separated from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not
suffice. There are certain requirements that Olario must comply being an American citizen. He must
meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has
diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines
for at least three continuous years prior to the filing of the application for adoption; (3) he must
maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his
own country; and (5) the adoptee is allowed to enter the adopter’s country as the latter’s adopted child.
None of these qualifications were shown and proved during the trial.

These requirements on residency and certification of the alien’s qualification to adopt cannot likewise
be waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree
of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children
of petitioner.

Effects of Adoption

Petitioner contends that joint parental authority is not anymore necessary since the children have
been emancipated having reached the age of majority. This is untenable.

Parental authority includes caring for and rearing the children for civic consciousness and efficiency and
the development of their moral, mental and physical character and well-being. The father and the
mother shall jointly exercise parental authority over the persons of their common children. Even 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.

It is true that when the child reaches the age of emancipation — that is, when he attains the age of
majority or 18 years of age16 — emancipation terminates parental authority over the person and
property of the child, who shall then be qualified and responsible for all acts of civil life. However,
parental authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates
the effects of adoption, thus:

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 biological parent(s) had left a will, the law on testamentary succession shall govern.

Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the
adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a
legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations
arising from the relationship of parent and child, including but not limited to: (i) the right of the adopter
to choose the name the child is to be known; and (ii) the right of the adopter and adoptee to be legal
and compulsory heirs of each other.

Therefore, even if emancipation terminates parental authority, the adoptee is still considered a
legitimate child of the adopter with all the rights of a legitimate child such as: (1) to bear the surname
of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the
legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the
adopted child, enjoy all the benefits to which biological parents are entitled20 such as support21 and
successional rights.22

Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed
the petitions with her husband. We cannot make our own legislation to suit petitioner.

Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no
longer be possible because Olario has filed a case for dissolution of his marriage to petitioner in the Los
Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no
moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a judicial
decree for the dissolution of the marriage between petitioner and Olario, the marriage still subsists.
That being the case, joint adoption by the husband and the wife is required. We reiterate our ruling
above that since, at the time the petitions for adoption were filed, petitioner was married to Olario, joint
adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional
Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against
petitioner.
G.R. No. 143989 July 14, 2003

ISABELITA S. LAHOM, petitioner,

vs.

JOSE MELVIN SIBULO (previously referred to as "DR. MELVIN S. LAHOM"), respondent.

The bliss of marriage and family would be to most less than complete without children. The realization
could have likely prodded the spouses Dr. Diosdado Lahom and Isabelita Lahom to take into their care
Isabelita's nephew Jose Melvin Sibulo and to bring him up as their own. At the tender age of two, Jose
Melvin enjoyed the warmth, love and support of the couple who treated the child like their own.
Indeed, for years, Dr. and Mrs. Lahom fancied on legally adopting Jose Melvin. Finally, in 1971, the
couple decided to file a petition for adoption. On 05 May 1972, an order granting the petition was
issued that made all the more intense than before the feeling of affection of the spouses for Melvin. In
keeping with the court order, the Civil Registrar of Naga City changed the name "Jose Melvin Sibulo" to
"Jose Melvin Lahom."

A sad turn of events came many years later. Eventually, in December of 1999, Mrs. Lahom commenced
a petition to rescind the decree of adoption before the Regional Trial Court (RTC), Branch 22, of Naga
City. In her petition, she averred —

"7. That x x x despite the proddings and pleadings of said spouses, respondent refused to change his
surname from Sibulo to Lahom, to the frustrations of petitioner particularly her husband until the
latter died, and even before his death he had made known his desire to revoke respondent's adoption,
but was prevented by petitioner's supplication, however with his further request upon petitioner to give
to charity whatever properties or interest may pertain to respondent in the future.

xxx xxx xxx

"10. That respondent continued using his surname Sibulo to the utter disregard of the feelings of
herein petitioner, and his records with the Professional Regulation Commission showed his name as
Jose Melvin M. Sibulo originally issued in 1978 until the present, and in all his dealings and activities in
connection with his practice of his profession, he is Jose Melvin M. Sibulo.

xxx xxx xxx

"13. That herein petitioner being a widow, and living alone in this city with only her household helps to
attend to her, has yearned for the care and show of concern from a son, but respondent remained
indifferent and would only come to Naga to see her once a year.

"14. That for the last three or four years, the medical check-up of petitioner in Manila became more
frequent in view of a leg ailment, and those were the times when petitioner would need most the care
and support from a love one, but respondent all the more remained callous and utterly indifferent
towards petitioner which is not expected of a son.

"15. That herein respondent has recently been jealous of petitioner's nephews and nieces whenever
they would find time to visit her, respondent alleging that they were only motivated by their desire for
some material benefits from petitioner.

"16. That in view of respondent's insensible attitude resulting in a strained and uncomfortable
relationship between him and petitioner, the latter has suffered wounded feelings, knowing that after all
respondent's only motive to his adoption is his expectancy of his alleged rights over the properties of
herein petitioner and her late husband, clearly shown by his recent filing of Civil Case No. 99-4463 for
partition against petitioner, thereby totally eroding her love and affection towards respondent,
rendering the decree of adoption, considering respondent to be the child of petitioner, for all legal
purposes, has been negated for which reason there is no more basis for its existence, hence this petition
for revocation,"1

Prior to the institution of the case, specifically on 22 March 1998, Republic Act (R.A.) No. 8552, also
known as the Domestic Adoption Act, went into effect. The new statute deleted from the law the right
of adopters to rescind a decree of adoption.

Section 19 of Article VI of R.A. No. 8552 now reads:

"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."
(emphasis supplied)

Jose Melvin moved for the dismissal of the petition, contending principally (a) that the trial court had
no jurisdiction over the case and (b) that the petitioner had no cause of action in view of the
aforequoted provisions of R.A. No. 8552.

Petitioner asseverated, by way of opposition, that the proscription in R.A. No. 8552 should not
retroactively apply, i.e., to cases where the ground for rescission of the adoption vested under the
regime of then Article 3482 of the Civil Code and Article 1923 of the Family Code.

The RTC ruled, viz:

"Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter to rescind an
adoption earlier granted under the Family Code. Conformably, on the face of the petition, indeed
there is lack of cause of action.

"Petitioner however, insists that her right to rescind long acquired under the provisions of the Family
Code should be respected. Assuming for the sake of argument, that petitioner is entitled to rescind the
adoption of respondent granted on May 5, 1972, said right should have been exercised within the period
allowed by the Rules. From the averments in the petition, it appears clear that the legal grounds for the
petition have been discovered and known to petitioner for more than five (5) years, prior to the filing
of the instant petition on December 1, 1999, hence, the action if any, had already prescribed. (Sec. 5,
Rule 100 Revised Rules of Court)

"WHEREFORE, in view of the foregoing consideration, the petition is ordered dismissed."

Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court, petitioner raises the
following questions; viz:

ISSUES:

1. May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded by an adopter
after the effectivity of R.A. No. 8552?

RULING: NO

The Philippines, a State Party to the Convention, accepted the principle that adoption was impressed
with social and moral responsibility, and that its underlying intent was geared to favor the adopted
child. R.A. No. 8552 secured these rights and privileges for the adopted. Most importantly, it affirmed
the legitimate status of the adopted child, not only in his new family but also in the society as well. The
new law withdrew the right of an adopter to rescind the adoption decree and gave to the adopted
child the sole right to sever the legal ties created by adoption.

Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her right to annul the
adoption decree, nor deprive the trial court of its jurisdiction to hear the case, both being vested under
the Civil Code and the Family Code, the laws then in force.

It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action to revoke the
decree of adoption granted in 1975. By then, the new law, had already abrogated and repealed the
right of an adopter under the Civil Code and the Family Code to rescind a decree of adoption.
Consistently with its earlier pronouncements, the Court should now hold that the action for rescission
of the adoption decree, having been initiated by petitioner after R.A. No. 8552 had come into force,
no longer could be pursued.

Interestingly, even before the passage of the statute, an action to set aside the adoption is subject to
the five-year bar rule under Rule 100 of the Rules of Court and that the adopter would lose the right
to revoke the adoption decree after the lapse of that period. The exercise of the right within a
prescriptive period is a condition that could not fulfill the requirements of a vested right entitled to
protection. It must also be acknowledged that a person has no vested right in statutory privileges. While
adoption has often been referred to in the context of a "right," the privilege to adopt is itself not
naturally innate or fundamental but rather a right merely created by statute. It is a privilege that is
governed by the state's determination on what it may deem to be for the best interest and welfare of
the child. Matters relating to adoption, including the withdrawal of the right of an adopter to nullify the
adoption decree, are subject to regulation by the State. Concomitantly, a right of action given by statute
may be taken away at any time before it has been exercised.

While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind the
adoption decree even in cases where the adoption might clearly turn out to be undesirable, it remains,
nevertheless, the bounden duty of the Court to apply the law. Dura lex sed lex would be the hackneyed
truism that those caught in the law have to live with. It is still noteworthy, however, that an adopter,
while barred from severing the legal ties of adoption, can always for valid reasons cause the forfeiture
of certain benefits otherwise accruing to an undeserving child. For instance, upon the grounds
recognized by law, an adopter may deny to an adopted child his legitime and, by a will and testament,
may freely exclude him from having a share in the disposable portion of his estate.
 REPUBLIC ACT NO. 8043

AN ACT ESTABLISHING THE RULES TO GOVERN INTER-COUNTRY ADOPTION OF FILIPINO CHILDREN,

AND FOR OTHER PURPOSES.

ARTICLE I

GENERAL PROVISIONS

Section 1. Short Title. — This Act shall be known as the "Inter-Country Adoption Act of 1995."

Sec. 2. Declaration of Policy. — It is hereby declared the policy of the State to provide every neglected
and abandoned child with a family that will provide such child with love and care as well as
opportunities for growth and development. Towards this end, efforts shall be exerted to place the child
with an adoptive family in the Philippines. However, recognizing that inter-country adoption may be
considered as allowing aliens not presently allowed by law to adopt Filipino children if such children
cannot be adopted by qualified Filipino citizens or aliens, the State shall take measures to ensure that
inter-country adoptions are allowed when the same shall prove beneficial to the child's best interests,
and shall serve and protect his/her fundamental rights.chan robles virtual law library

Sec. 3. Definition of Terms. — As used in this Act. the term:

(a) Inter-country adoption refers to the socio-legal process of adopting a Filipino child by a foreigner or a
Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is
undertaken, and the decree of adoption is issued outside the Philippines.

chan robles virtual law library

(b) Child means a person below fifteen (15) years of age unless sooner emancipated by law.

(c) Department refers to the Department of Social Welfare and Development of the Republic of the
Philippines.

(d) Secretary refers to the Secretary of the Department of Social Welfare and Development.

(e) Authorized and accredited agency refers to the State welfare agency or a licensed adoption agency in
the country of the adopting parents which provide comprehensive social services and which is duly
recognized by the Department.
(f) Legally-free child means a child who has been voluntarily or involuntarily committed to the
Department, in accordance with the Child and Youth Welfare Code.

(g) Matching refers to the judicious pairing of the adoptive child and the applicant to promote a
mutually satisfying parent-child relationship.

(h) Board refers to the Inter-country Adoption Board.

ARTICLE II

THE INTER-COUNTRY ADOPTION BOARD

Sec. 4. The Inter-Country Adoption Board. — There is hereby created the Inter-Country Adoption Board,
hereinafter referred to as the Board to act as the central authority in matters relating to inter-country
adoption. It shall act as the policy-making body for purposes of carrying out the provisions of this Act, in
consultation and coordination with the Department, the different child-care and placement agencies,
adoptive agencies, as well as non-governmental organizations engaged in child-care and placement
activities. As such, it shall:

(a) Protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in
connection with adoption which is harmful, detrimental, or prejudicial to the child;

chan robles virtual law library

(b) Collect, maintain, and preserve confidential information about the child and the adoptive parents;

(c) Monitor, follow up, and facilitate completion of adoption of the child through authorized and
accredited agency;

(d) Prevent improper financial or other gain in connection with an adoption and deter improper
practices contrary to this Act;

(e) Promote the development of adoption services including post-legal adoption;

(f) License and accredit child-caring/placement agencies and collaborate with them in the placement of
Filipino children;
(g) Accredit and authorize foreign adoption agency in the placement of Filipino children in their own
country; and

(h) Cancel the license to operate and blacklist the child-caring and placement agency or adoptive agency
involved from the accreditation list of the Board upon a finding of violation of any provision under this
Act.

Sec. 5. Composition of the Board. — The Board shall be composed of the Secretary of the Department as
ex officio Chairman, and six (6) other members to be appointed by the President for a nonrenewable
term of six (6) years: Provided, That there shall be appointed one (1) psychiatrist or psychologist, two (2)
lawyers who shall have at least the qualifications of a regional trial court judge, one (1) registered social
worker and two (2) representatives from non-governmental organizations engaged in child-caring and
placement activities. The members of the Board shall receive a per diem allowance of One thousand five
hundred pesos (P1,500) for each meeting attended by them: Provided, further, That no compensation
shall be paid for more than four (4) meetings a month.chan robles virtual law library

Sec. 6. Powers and Functions of the Board. — The Board shall have the following powers and
functions:chanroblesvirtualawlibrary

(a) to prescribe rules and regulations as it may deem reasonably necessary to carry out the provisions of
this Act, after consultation and upon favorable recommendation of the different agencies concerned
with the child-caring, placement, and adoption;

chan robles virtual law library

(b) to set the guidelines for the convening of an Inter-country Adoption Placement Committee which
shall be under the direct supervision of the Board;

(c) to set the guidelines for the manner by which selection/matching of prospective adoptive parents
and adoptive child can be made;

(d) to determine a reasonable schedule of fees and charges to be exacted in connection with the
application for adoption;

(e) to determine the form and contents of the application for inter-country adoption;

(g) to institute systems and procedures to prevent improper financial gain in connection with adoption
and deter improper practices which are contrary to this Act;
(h) to promote the development of adoption services, including post-legal adoption services,

(i) to accredit and authorize foreign private adoption agencies which have demonstrated
professionalism, competence and have consistently pursued non-profit objectives to engage in the
placement of Filipino children in their own country: Provided, That such foreign private agencies are
duly authorized and accredited by their own government to conduct inter-country adoption: Provided,
however, That the total number of authorized and accredited foreign private adoption agencies shall not
exceed one hundred (100) a year;

(j) to take appropriate measures to ensure confidentiality of the records of the child, the natural parents
and the adoptive parents at all times;

(k) to prepare, review or modify, and thereafter, recommend to the Department of Foreign Affairs,
Memoranda of Agreement respecting inter-country adoption consistent with the implementation of this
Act and its stated goals, entered into, between and among foreign governments, international
organizations and recognized international non-governmental organizations;

(l) to assist other concerned agencies and the courts in the implementation of this Act, particularly as
regards coordination with foreign persons, agencies and other entities involved in the process of
adoption and the physical transfer of the child; and

(m) to perform such other functions on matters relating to inter-country adoption as may be determined
by the President.

ARTICLE III

PROCEDURE

Sec. 7. Inter-Country Adoption as the Last Resort. — The Board shall ensure that all possibilities for
adoption of the child under the Family Code have been exhausted and that inter-country adoption is in
the best interest of the child. Towards this end, the Board shall set up the guidelines to ensure that steps
will be taken to place the child in the Philippines before the child is placed for inter-country adoption:
Provided, however, That the maximum number that may be allowed for foreign adoption shall not
exceed six hundred (600) a year for the first five (5) years.chan robles virtual law library
Sec. 8. Who May be Adopted. — Only a legally free child may be the subject of inter-country adoption.
In order that such child may be considered for placement, the following documents must be submitted
to the Board:

(a)Child study;

(b)Birth certificate/foundling certificate;

(c)Deed of voluntary commitment/decree of abandonment/death certificate of parents;

(d)Medical evaluation /history;

(e)Psychological evaluation, as necessary; and

(f)Recent photo of the child.

Sec. 9. Who May Adopt. — An alien or a Filipino citizen permanently residing abroad may file an
application for inter-country adoption of a Filipino child if he/she:

(a) 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 adopter is the parent by nature of the child to be adopted
or the spouse of such parent:

(b) if married, his/her spouse must jointly file for the adoption;

(c) 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/her
country;

(d) has not been convicted of a crime involving moral turpitude;

(e) is eligible to adopt under his/her national law;

(f) is in a position to provide the proper care and support and to give the necessary moral values and
example to all his children, including the child to be adopted;
(g) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention
on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions
of this Act;

(h) comes from a country with whom the Philippines has diplomatic relations and whose government
maintains a similarly authorized and accredited agency and that adoption is allowed under his/her
national laws; and

(i) possesses all the qualifications and none of the disqualifications provided herein and in other
applicable Philippine laws.

Sec. 10. Where to File Application. — 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 to be promulgated by the Board.

The application shall be supported by the following documents written and officially translated in
English.

(a) Birth certificate of applicant(s);

(b) Marriage contract, if married, and divorce decree, if applicable;

(c) Written consent of their biological or adoptive children above ten (10) years of age, in the form of
sworn statement;

(d) Physical, medical and psychological evaluation by a duly licensed physician and psychologist;

(e) Income tax returns or any document showing the financial capability of the applicant(s);

(f) Police clearance of applicant(s);

(g) Character reference from the local church/minister, the applicant's employer and a member of the
immediate community who have known the applicant(s) for at least five (5) years; and

(h) Recent postcard-size pictures of the applicant(s) and his immediate family;

The Rules of Court shall apply in case of adoption by judicial proceedings.

Sec. 11. Family Selection/Matching. — No child shall be matched to a foreign adoptive family unless it is
satisfactorily shown that the child cannot be adopted locally. The clearance, as issued by the Board, with
the copy of the minutes of the meetings, shall form part of the records of the child to be adopted. When
the Board is ready to transmit the Placement Authority to the authorized and accredited inter-country
adoption agency and all the travel documents of the child are ready, the adoptive parents, or any one of
them, shall personally fetch the child in the Philippines.chan robles virtual law library

Sec. 12. Pre-adoptive Placement Costs. — The applicant(s) shall bear the following costs incidental to
the placement of the child;

(a) The cost of bringing the child from the Philippines to the residence of the applicant(s) abroad,
including all travel expenses within the Philippines and abroad; and

(b) The cost of passport, visa, medical examination and psychological evaluation required, and other
related expenses.

Sec. 13. Fees, Charges and Assessments. — Fees, charges, and assessments collected by the Board in
the exercise of its functions shall be used solely to process applications for inter-country adoption and to
support the activities of the Board.

Sec. 14. Supervision of Trial Custody. — The governmental agency or the authorized and accredited
agency in the country of the adoptive parents which filed the application for inter-country adoption shall
be responsible for the trial custody and the care of the child. It shall also provide family counseling and
other related services. The trial custody shall be for a period of six (6) months from the time of
placement. Only after the lapse of the period of trial custody shall a decree of adoption be issued in the
said country a copy of which shall be sent to the Board to form part of the records of the child.chan
robles virtual law library
During the trial custody, the adopting parent(s) shall submit to the governmental agency or the
authorized and accredited agency, which shall in turn transmit a copy to the Board, a progress report of
the child's adjustment. The progress report shall be taken into consideration in deciding whether or not
to issue the decree of adoption.

The Department of Foreign Affairs shall set up a system by which Filipino children sent abroad for trial
custody are monitored and checked as reported by the authorized and accredited inter-country
adoption agency as well as the repatriation to the Philippines of a Filipino child whose adoption has not
been approved.

Sec. 15. Executive Agreements. — The Department of Foreign Affairs, upon representation of the Board,
shall cause the preparation of Executive Agreements with countries of the foreign adoption agencies to
ensure the legitimate concurrence of said countries in upholding the safeguards provided by this Act.

ARTICLE IV

PENALTIES

Sec. 16. Penalties. — (a) Any person who shall knowingly participate in the conduct or carrying out of an
illegal adoption, in violation of the provisions of this Act, shall be punished with a penalty of
imprisonment ranging from six (6) years and one (1) day to twelve (12) years and/or a fine of not less
than Fifty thousand pesos (P50,000), but not more than Two hundred thousand pesos (P200.000), at
the discretion of the court. For purposes of this Act, an adoption is illegal if it is effected in any manner
contrary to the provisions of this Act or established State policies, its implementing rules and
regulations, executive agreements, and other laws pertaining to adoption. Illegality may be presumed
from the following acts:

(1)consent for an adoption was acquired through, or attended by coercion, fraud, improper material
inducement;

(2)there is no authority from the Board to effect adoption;

(3)the procedures and safeguards placed under the law for adoption were not complied with; and

(4)the child to be adopted is subjected to, or exposed to danger, abuse and exploitation.
(b)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
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), but not more than Ten thousand pesos (P10,000), at the
discretion of the court.

A penalty lower by two (2) degrees than that prescribed for the consummated felony 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 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.chan robles virtual law library

Sec. 17. Public Officers as Offenders. — 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.

ARTICLE V

FINAL PROVISIONS

Sec. 18. Implementing Rules and Regulations. — The Inter-country Adoption Board, in coordination with
the Council for the Welfare of Children, the Department of Foreign Affairs, and the Department of
Justice, after due consultation with agencies involved in child-care and placement, shall promulgate the
necessary rules and regulations to implement the provisions of this Act within six (6) months after its
effectivity.

Sec. 19. Appropriations. — The amount of Five million pesos (P5,000,000) is hereby appropriated from
the proceeds of the Lotto for the initial operations of the Board and subsequently the appropriations of
the same shall be included in the General Appropriations Act for the year following its enactment.

Sec. 20. Separability Clause. — If any provision, or part hereof is held invalid or unconstitutional, the
remainder of the law or the provision not otherwise affected, shall remain valid and subsisting.

Sec. 21. Repealing Clause. — Any law, decree, executive order, administrative order or rules and
regulations contrary to, or inconsistent with the provisions of this Act are hereby repealed, modified or
amended accordingly.chan robles virtual law library

Sec. 22. Effectivity Clause. — This Act shall take effect fifteen (15) days after its publication in two (2)
newspapers of general circulation.
 A.M. No. 03-04-04-SC April 22, 2003

RE: PROPOSED RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS

IN RELATION TO CUSTODY OF MINORS

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting for
this Court’s consideration and approval the Proposed Rule on custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors, the Court Resolved to APPROVE the same.

The Rule shall take effect on May 15, 2003 following its publication in a newspaper of general circulation
not later than April 30, 2003.

April 22, 2003

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Quisumbing, J., on official leave.

RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS

IN RELATION TO CUSTODY OF MINORS

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.

Section 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.

Section 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.

Section 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.

Section 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.

Section 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.

Section 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.
Section 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.

Section 9. Notice of mandatory pre-trial. - Within fifteen days after the filing of the answer or the
expiration 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.

Section 10. Contents of pre-trial brief. - The pre-trial 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;

(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 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.

Section 11. Effect of failure to appear at the pre-trial.-(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.

Section 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 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.

Section 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 provisional 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 twenty-one 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.

Section 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 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.

Section 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.

Section 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 order has been issued
or whose 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.

Section 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.

Section 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
designate either the paternal or maternal grandparent of the minor, or 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.

Section 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.

Section 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
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.

Section 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.

Section 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.

G.R. No. 154994 June 28, 2005

JOYCELYN PABLO-GUALBERTO, petitioner,

vs.

CRISANTO RAFAELITO GUALBERTO V, respondent.

SYNOPSIS:

When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle
is often over the custody of their children. The Court is now tasked to settle the opposing claims of the
parents for custody pendente lite of their child who is less than seven years of age. There being no
sufficient proof of any compelling reason to separate the minor from his mother, custody should
remain with her.

The Facts

The CA narrated the antecedents as follows:

"x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional Trial Court of
Parañaque City] a petition for declaration of nullity of his marriage to x x x Joycelyn D. Pablo
Gualberto, with an ancillary prayer for custody pendente lite of their almost 4-year-old son, minor
Rafaello (the child, for brevity), whom [Joycelyn] allegedly took away with her from the conjugal home
and his school (Infant Toddler’s Discovery Center in Parañaque City) when [she] decided to abandon
[Crisanto] sometime in early February 2002[.]

[O]n April 3, 2002, x x x [the] Judge awarded custody pendente lite of the child to [Crisanto

"x x x [O]n April 16, 2002, the hearing of [Joycelyn’s] motion to lift the award of custody pendente lite
of the child to [Crisanto] was set but the former did not allegedly present any evidence to support her
motion.

However, on May 17, 2002, [the] Judge allegedly issued the assailed Order reversing her Order of April
3, 2002 and this time awarding custody of the child to [Joycelyn].

Ruling of the Court of Appeals

Partly in Crisanto’s favor, the CA ruled that grave abuse of discretion had been committed by the trial
court in reversing the latter court’s previous Order dated April 3, 2002, by issuing the assailed May 17,
2002 Order. The appellate court explained that the only incident to resolve was Joycelyn’s Motion to
Dismiss, not the issuance of the earlier Order. According to the CA, the prior Order awarding
provisional custody to the father should prevail, not only because it was issued after a hearing, but
also because the trial court did not resolve the correct incident in the later Order.

Nonetheless, the CA stressed that the trial court judge was not precluded from considering and
resolving Joycelyn’s Motion to lift the award of custody pendente lite to Crisanto, as that Motion had yet
to be properly considered and ruled upon. However, it directed that the child be turned over to him
until the issue was resolved.

Hence, these Petitions.

Issues
Whether or not the Respondent Court of Appeals, when it awarded the custody of the child to the
father, violated Art. 213 of the Family Code, which mandates that ‘no child under seven years of age
shall be separated from the mother, unless the court finds compelling reasons to order otherwise.’

RULING: YES
The Court’s Ruling

Custody of a Minor Child Belongs to the Mother

When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle
is often over the custody of their children. The Court is now tasked to settle the opposing claims of the
parents for custody pendente lite of their child who is less than seven years old.30 On the one hand, the
mother insists that, based on Article 213 of the Family Code, her minor child cannot be separated from
her. On the other hand, the father argues that she is "unfit" to take care of their son; hence, for
"compelling reasons," he must be awarded custody of the child.

Article 213 of the Family Code provides:

"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.

No child under seven years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise."

This Court has held that when the parents are separated, legally or otherwise, the foregoing provision
governs the custody of their child. Article 213 takes its bearing from Article 363 of the Civil Code, which
reads:

"Art. 363. In all questions on the care, custody, education and property of children, the latter’s welfare
shall be paramount. No mother shall be separated from her child under seven years of age, unless the
court finds compelling reasons for such measure."(Italics supplied)

The general rule that children under seven years of age shall not be separated from their mother finds
its raison d’etre in the basic need of minor children for their mother’s loving care. In explaining the
rationale for Article 363 of the Civil Code, the Code Commission stressed thus:

"The general rule is recommended in order to avoid 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 has to be for ‘compelling reasons’ for the good of the child: those
cases must indeed be rare, if the mother’s 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." (Report of the Code Commission, p. 12)

A similar provision is embodied in Article 8 of the Child and Youth Welfare Code (Presidential Decree No.
603). Article 17 of the same Code is even more explicit in providing for the child’s custody under various
circumstances, specifically in case the parents are separated. It clearly mandates that "no child under
five years of age shall be separated from his mother, unless the court finds compelling reasons to do so."
The provision is reproduced in its entirety as follows:

"Art. 17. Joint Parental Authority. – The father and the mother shall exercise jointly just and reasonable
parental authority and responsibility over their legitimate or adopted children. In case of disagreement,
the father’s decision shall prevail unless there is a judicial order to the contrary.

"In case of the absence or death of either parent, the present or surviving parent shall continue to
exercise parental authority over such children, unless in case of the surviving parent’s remarriage, the
court for justifiable reasons, appoints another person as guardian.

"In case of separation of his parents, no child under five years of age shall be separated from his mother,
unless the court finds compelling reasons to do so." (Italics supplied)

Mandatory Character of Article 213 of the Family Code

"[Article 363] prohibits in no uncertain terms the separation of a mother and her child below seven
years, unless such a separation is grounded upon compelling reasons as determined by a court."

The Best Interest of the Child a Primary Consideration

The Convention on the Rights of the Child provides that "[i]n all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary consideration."
 Tender-Age Presumption

As pointed out earlier, there is express statutory recognition that, as a general rule, a mother is to be
preferred in awarding custody of children under the age of seven. The caveat in Article 213 of the Family
Code cannot be ignored, except when the court finds cause to order otherwise.

The so-called "tender-age presumption" under Article 213 of the Family Code may be overcome only
by compelling evidence of the mother’s unfitness. The mother has been declared unsuitable to have
custody of her children in one or more of the following instances: neglect, abandonment,
unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity
or affliction with a communicable disease.

Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to deprive
Joycelyn of custody. It has indeed been held that under certain circumstances, the mother’s immoral
conduct may constitute a compelling reason to deprive her of custody

But sexual preference or moral laxity alone does not prove parental neglect or incompetence. Not
even the fact that a mother is a prostitute or has been unfaithful to her husband would render her
unfit to have custody of her minor child. To deprive the wife of custody, the husband must clearly
establish that her moral lapses have had an adverse effect on the welfare of the child or have
distracted the offending spouse from exercising proper parental care.

Based on the above jurisprudence, it is therefore not enough for Crisanto to show merely that
Joycelyn was a lesbian. He must also demonstrate that she carried on her purported relationship with
a person of the same sex in the presence of their son or under circumstances not conducive to the
child’s proper moral development. Such a fact has not been shown here. There is no evidence that the
son was exposed to the mother’s alleged sexual proclivities or that his proper moral and psychological
development suffered as a result.

Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort, ruled in her May 17,
2002 Order that she had found the "reason stated by [Crisanto] not to be compelling"as to suffice as a
ground for separating the child from his mother. The judge made this conclusion after personally
observing the two of them, both in the courtroom and in her chambers on April 16, 2002, and after a
chance to talk to the boy and to observe him firsthand. This assessment, based on her unique
opportunity to witness the child’s behavior in the presence of each parent, should carry more weight
than a mere reliance on the records. All told, no compelling reason has been adduced to wrench the
child from the mother’s custody.

No Grant of Habeas Corpus and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son in her custody, the writ of habeas
corpus and the preliminary mandatory injunction prayed for by Crisanto have no leg to stand on. A
writ of habeas corpus may be issued only when the "rightful custody of any person is withheld from
the person entitled thereto," a situation that does not apply here.

On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be granted,
because Crisanto’s right to custody has not been proven to be "clear and unmistakable." Unlike an
ordinary preliminary injunction, the writ of preliminary mandatory injunction is more cautiously
regarded, since the latter requires the performance of a particular act that tends to go beyond the
maintenance of the status quo.59 Besides, such an injunction would serve no purpose, now that the
case has been decided on its merits.60

WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision of the Court of Appeals is
hereby REVERSED and the May 17, 2002 Regional Trial Court Order REINSTATED. The Petition in GR No.
156254 is DISMISSED. Costs against Petitioner Crisanto Rafaelito Gualberto V.

SO ORDERED.

A.M. No. 02-1-19-SC | RULE ON COMMITMENT OF CHILDREN

SECTION 1. Objective. — The objective of this Rule is to ensure that every effort is exerted to promote
the child’s 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 .

SECTION 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 Rights of the Child.
SECTION 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.

(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 the 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, or when placed 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
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 for a child sought
to be committed to protect his best interests.
(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 family’s strengths and weaknesses and parental control
over him. The report is 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.

SECTION 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 any 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 child’s parents are
unknown, petitioner must 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 the petition; and

(4) The name, address and written consent of the Department or duly licensed child-placement or child-
caring agency or individual to whose care the commitment of the child is sought to be entrusted.

(d) Summons; Court to 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 the 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 sets the petition for hearing in accordance with Subsection (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.

(g) Child’s Right to Counsel. — The court, upon request of the child capable of forming his own views or
upon request of 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 .

(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 or 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 latter’s 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 the 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 the 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 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 interests arise among child-placement 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 the 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 agency 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 or frequency of the offense.

(p) Restoration of Parental Authority After Involuntary Commitment. —

(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 whose
custody he has been judicially committed in accordance with Subsection (m) of Section 4 of this Rule. It
shall likewise have jurisdiction over the person who induced the child to leave such person or institution,
except 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, 10
and 31 of R.A. No. 7610.

SECTION 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 child’s 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 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:

(1) The name and address of the child-placement or child-caring agency or individual to whose custody
the child has been voluntarily committed;

(2) 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 are actually capable of taking care and
custody of the child;

(3) 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.

(4) 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 to 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 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 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 has 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 child-placement 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 moral 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, 10 and 31 of R.A. No. 7610.

SECTION 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 duly 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.

(5) An estimate of the costs and other expenses of 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 charge 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 shall 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.

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 Committed 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.

SECTION 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.

XII. JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN – Rule

105; FAMILY CODE, Arts. 163-165, 172-173, 175

G.R. No. L-46746 March 15, 1990

LIGAYA GAPUSAN-CHUA, petitioner,

vs.

COURT OF APPEALS and PROSPERO PARCON, respondents.

Felisa Gapusan Parcon died intestate and without legitimate issue on April 6, 1966 in Bacolod City.
Neither her surviving spouse, Prospero Parcon, nor her other known relatives — three (3) sisters and a
nephew — made any move to settle her estate judicially.

It was Ligaya Gapusan-Chua, claiming to be an acknowledged natural daughter of Felisa Gapusan

Parcon, who instituted judicial proceedings for the settlement of the latter's estate. About a year and
eight months after Felisa's demise, or on January 15, 1968, Ligaya filed with the Court of First Instance
of Negros Occidental a petition for the settlement of the estate and for issuance of letters of
administration in her favor. She also sought her designation as Special Administratrix pending her
appointment as regular administratrix.

By Order dated January 16, 1968, the Court appointed Ligaya Special Administratrix of Felisa Parcon's
estate.

On April 22, 1968, Prospero Parcon, Felisa Parcon's surviving husband, filed a motion for reconsideration
of the Order of January 16, 1968. He denied that Ligaya was an acknowledged natural child of his
deceased wife, and applied for his own appointment as administrator of his wife's estate. 4

Hearings were had on the issue of Ligaya claimed affiliation. Ligaya presented, among other proofs, the
following documents:

a) Felisa Parcon's sworn statement of assets and liabilities wherein Ligaya is named and described as the
daughter of Felisa (Exh. 4);

b) Felisa Parcon's application for GSIS life insurance in which Ligaya is set out as her (Felisa's) daughter
(Exh. 3);

c) Check No. 44046 of the Government Service Insurance System in the sum of P505.50 paid to her
(Ligaya) as her share in the death benefits due the heirs of Felisa Parcon (Exh. 2); and
d) a family photograph, showing Ligaya beside the deceased (Exh. 1).

Prospero Parcon, on the other hand, sought to demonstrate that Ligaya's exhibits did not constitute
conclusive proof of her claimed status of acknowledged natural child, for the reason that:

a) another document, Felisa's application for membership in Negros Occidental Teachers' Federation
(NOTF), merely named Ligaya as her "adopted daughter;"

b) in the distribution of death benefits pursuant to the decedent's GSIS insurance policy, supra, Ligaya
was allocated only P500.00 whereas Prospero received P1,000.00; and

c) Mrs. Leticia Papasin (Felisa's sister) and Vice-Mayor Solomon Mendoza travelled from afar to affirm
before the Probate Court on the witness stand that Ligaya was not the daughter of Felisa, 6 Mrs.
Papasin's testimony being that in 1942 an unknown "drifter" had sold Ligaya, then an infant, to Felisa.

The Probate Court found for Ligaya. Its Order dated April 16, 1969 disposed as follows:

WHEREFORE, it is hereby declared that petitioner is the acknowledged natural child of the late Felisa
Gapusan, and for being the next of kin of the deceased (Rule 78, Rules of Court), she is hereby
appointed regular administratrix of the properties of the above-mentioned deceased with the same
bond given by her as special administratrix, with costs against the oppositors.

On appeal seasonably perfected, the Court of Appeals (Fourth Division), in a Decision dated April 13,
1977, (1) set aside the Probate Court's Order of January 16, 1968 (appointing Ligaya Special
Administratrix) and of April 16, 1969 (declaring her the decedent's acknowledged natural child and
appointing her regular administratrix), and (2) appointed Prospero Parcon regular administrator of his
wife's estate. In that Court's view, the evidence at best showed merely that Ligaya had been treated as a
daughter by Felisa, but that this did "not constitute acknowledgment" but "only a ground to compel
recognition;" and that Ligaya had failed to establish that she had been acknowledged by Felisa in
accordance with Article 278 of the Civil Code (Article 131 of the Civil Code of 1889). Appeal has in turn
been taken from this judgment to this Court by Ligaya Gapusan-Chua.

Here, Ligaya insists that the evidence submitted by her does indeed sufficiently establish her status as
the acknowledged natural child of Felisa Parcon, and that her appointment as regular administratrix is
justified by law and jurisprudence.
More particularly, she contends that the sworn statement of assets and liabilities, a public document
submitted by the decedent pursuant to a legal requirement therefor, and the latter's application for
life insurance were in law indubitable recognition by her mother of her status as an acknowledged
natural child, voluntarily made, and were adequate foundation for a judicial declaration of her status
as heir. These statements, she alleges, were "authentic writings" in contemplation of Article 278 of the
Civil Code:

Art. 278. Recognition shall be made in the record of birth, a will, a statement before a court of record, or
in any authentic writing.

These, she contends, together with her treatment as a daughter by Felisa — a fact found to have been
established by the evidence by both the Trial Court and the Court of Appeals — eliminate all doubt
about the juridical verity of her recognition as a natural child.

Prospero Parcon disagrees. He argues that, as ruled by the Court of Appeals, the statements designating
Ligaya as Felisa's daughter merely furnished ground for Ligaya to compel recognition by action which,
however, should have been brought during the lifetime of the putative parent in accordance with
Article 285 of the Civil Code, reading as follows:

Art. 285. The action for the recognition of natural children may be brought only during the lifetime of
the presumed parents, except in the following cases:

(1) If the father or mother died during the minority of the child, in which case the latter may file the
action before the expiration of four years from the attainment of his majority;

(2) If after the death of the father or of the mother a document should appear of which nothing had
been heard and in which either or both parents recognize the child.

In this case, the action must be commenced within four years from the finding of the document.

Since, Parcon continues, no such action was instituted prior to the death of Felisa, proof of the
"authentic document" (sworn statement of assets and liabilities) in the proceedings for the settlement
of the latter's estate was inefficacious as basis for a declaration of filiation or heirship.
ISSUE:

whether or not Felisa's sworn statement of assets and liabilities and her application for insurance are
"authentic writings" which effectively operated as a recognition of Ligaya Gapusan-Chua as her
natural child, even if no action was brought by the latter to compel the former, during her lifetime, to
recognize her as such.

RULING:

Recognition of natural children may be voluntary or compulsory.

Voluntary recognition, it has been said, "is an admission of the fact of paternity or maternity by the
presumed parent, expressed in the form prescribed by the Civil Code. Its essence lies in the avowal of
the parent that the child is his; the formality is added to make the admission incontestable, in view of its
consequences." The form is prescribed by Article 278 of the Civil Code, earlier adverted to; it provides
that a voluntary recognition "shall be made in the record of birth, a will, a statement before a court of
record, or in any authentic writing."

Compulsory recognition is sometimes also called judicial recognition, to distinguish it from that which is
a purely voluntary act of the parent. It is recognition decreed by final judgment of a competent court. It
is governed by Articles 283 and 284, setting forth the cases in which the father or mother, respectively,
is obliged to recognize a natural child, and Article 285 providing that generally, the action for recognition
of natural children may be brought only during the lifetime of the presumed parents. 12

The matter of whether or not judicial approval is needful for the efficacy of voluntary recognition is dealt
with in Article 281 of the Civil Code.

Art. 281. A child who is of age cannot be recognized without his consent.

When the recognition of a minor does not take place in a record of birth or in a will, judicial approval
shall be necessary.

A minor can in any case impugn the recognition within four years following the attainment of his
majority.

In other words, judicial approval is not needed if a recognition is voluntarily made —

1) of a person who is of age, only his consent being necessary; or

2) of a minor whose acknowledgment is effected in a record of birth or in a will.

On the other hand, judicial approval is needful if the recognition of the minor is effected, not through
a record of birth or in a will but through a statement in a court of record or an authentic document. In
any case the individual recognized can impugn the recognition within four years following the
attainment of his majority. 14

Now, there are no less than three (3) writings submitted in evidence in this case in which Felisa Gapusan
Parcon describes Ligaya Gapusan-Chua as her daughter, viz.:

a) Felisa's sworn statement of assets and liabilities, in which she names and describes Ligaya as her
daughter (Exh. 4);

b) her application for GSIS life insurance in which she again describes Ligaya as her daughter (Exh. 3);
and

c) her application for membership in the Negros Occidental Teachers' Federation, where she names
Ligaya as her "adopted daughter" (Exh. 1).

Each of these writings is undoubtedly an "authentic writing" within the contemplation of Article 278.
"An 'authentic writing' for purposes of voluntary recognition . . . (is) understood as a genuine or
indubitable writing of the father" (or mother), including "a public instrument" (one acknowledged
before a notary public or other competent official with the formalities required by law), 15 and, of
course, a public or official document in accordance with Section 20, Rule 132 of the Rules of Court. The
sworn statement of assets and liabilities filed by Felisa Parcon is a public document, having been
executed and submitted pursuant to a requirement of the law. So it has been held by this Court. 16 The
other two writings above mentioned are, to be sure, not public documents, but this is of no moment;
neither of them has to be a public document in order to be categorized as an "authentic writing." It is
enough that they are the genuine or indubitable writings of Felisa Gapusan Parcon. That in one of the
writings, Felisa's application for membership in the Negros Occidental Teachers' Federation, Felisa
describes Ligaya as her "adopted" daughter is also inconsequential. It may be explained by her
reluctance to confess publicly to her colleagues in the teaching profession that she had borne a child out
of wedlock. It is in any case a categorical avowal by Felisa that Ligaya is indeed her daughter, an
admission entirely consistent with the two other authentic writings executed by her in which she
acknowledges Ligaya to be her daughter without qualification. Moreover, if these three (3) writings are
considered in conjunction with the undisputed fact that Ligaya had been continuously treated by Felisa
as her daughter, the proposition that Ligaya was indeed Felisa's daughter becomes well nigh conclusive.

It is admitted on all sides that no judicial action or proceeding was ever brought during the lifetime of
Felisa to compel her to recognize Ligaya as her daughter. It is also evident that Ligaya's recognition as
Felisa's daughter was not made in a record of birth or a will, a circumstance which would have made
judicial approval unnecessary, only her own consent to the recognition being required. The
acknowledgment was made in authentic writings, and hence, conformably with the legal provisions
above cited, judicial approval thereof was needed if the writings had been executed during Ligaya's
minority. In other words, the question of whether or not the absence of judicial approval negated the
effect of the writings as a mode of recognition of Ligaya is dependent upon the latter's age at the time
the writings were made.

The point need not be belabored, however. For whether Ligaya were still a minor or already of age at
the time of her recognition in the authentic writings mentioned, that circumstance would be immaterial
in the light of the attendant facts.

In the first place, the consent required by Article 281 of a person of age who has been voluntarily
recognized may be given expressly or tacitly. Assuming then that Ligaya was of age at the time of her
voluntary recognition, the evidence shows that she has in fact consented thereto. Her consent to her
recognition is not only implicit from her failure to impugn it at any time before her mother's death, but
is made clearly manifest and conclusive by her assertion of that recognition in the judicial proceeding for
the settlement of her mother's estate as basis for her rights thereto. Assuming on the other hand, that
she was a minor at the time of her recognition, and therefore judicial approval of the recognition was
necessary, the absence thereof was cured by her ratification of that recognition, after having reached
the age of majority, by her initiation of the proceedings for the settlement of her deceased mother's
estate on the claim precisely that she was the decedent's acknowledged natural daughter. The
requirement of judicial approval imposed by Article 281 is clearly intended for the benefit of the minor.
"The lack of judicial approval cannot impede the effectivity of the acknowledgment made. The judicial
approval is for the protection of the minor against any acknowledgment made to his prejudice."
"Therefore, the lack, or insufficiency of such approval is NOT a defect available to the recognizing
parent but one which the minor may raise or waive. If after reaching majority the minor consents to
the acknowledgment, the lack of judicial approval should make no difference. Implied consent to the
acknowledgment may be shown (e.g.,) by such acts as keeping, even after reaching the age of majority,
the acknowledgment papers and the use of the parent's surname.

Upon the foregoing facts and considerations, Ligaya Gapusan Chua must be held to be a voluntarily
acknowledged natural child of Felisa Gapusan Parcon. She is therefore entitled, in accordance with
Article 282 of the Civil Code, to bear her mother's surname, and to receive the hereditary portion
accorded to her by the Code.

WHEREFORE, the challenged decision of the Court of Appeals (Fourth Division) dated April 13, 1977 is
hereby REVERSED AND SET ASIDE, and the Orders of the Probate Court dated January 16, 1968 —
appointing Ligaya Gapusan-Chua Special Administratrix — and of April 16, 1969 — declaring said Ligaya
Gapusan-Chua the decedent's acknowledged natural child and appointing her regular administratrix —
are REINSTATED AND HEREBY AFFIRMED, without pronouncement as to costs.

SO ORDERED.