D. Habeas Corpus (Rule 102; See also AM 03-04-04-SC)

D. Habeas Corpus (Rule 102); Custody of Minors (A.M. No. 03-04-04-SC) (part 1 of 2)

> Habeas Corpus

Section 1. To what habeas corpus extends. — Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

Section 2. Who may grant the writ. — The writ of habeas corpus may be granted by the Supreme Court, or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Regional Trial Court, or any judge thereof for the hearing and decision on the merits. It may also be granted by a Regional Trial Court, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district.

Section 3.Requisites of application therefor. — Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth:

(a)That the person in whose behalf the application is made is imprisoned or restrained on his liberty;

(b)The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended;

(c)The place where he is so imprisoned or restrained, if known;

(d)A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear.

Section 4.When writ not allowed or discharge authorized. — If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.

Section 5.When the writ must be granted and issued. — A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it.

Section 6. To whom writ directed, and what to require. — In case of imprisonment or restraint by an officer, the writ shall be directed to him, and shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint.

Section 7.How prisoner designated and writ served. — The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer, or by a person deputed by the court or judge. Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return or service. If that person cannot be found, or has not the prisoner in his custody, then the service shall be made on any other person having or exercising such custody.

Section 8.How writ executed and returned. — The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or judge; and the officer shall make due return of the writ, together with the day and the cause of the caption and restraint of such person according to the command thereof.

Section 9.Defect of form. — No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned or restrained is held and the court or judge before whom he is to be brought.

Section 10.Contents of return. — When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocally:

(a)Whether he has or has not the party in his custody or power, or under restraint;

(b)If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held;

(c)If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge;

(d)If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made.

Section 11.Return to be signed and sworn to. — The return or statement shall be signed by the person who makes it; and shall also be sworn by him if the prisoner is not produced, and in all other cases unless the return is made and signed by a sworn public officer in his official capacity.

Section 12.Hearing on return. Adjournments. — When the writ is returned before one judge, at a time when the court is in session, he may forthwith adjourn the case into the court, there to be heard and determined. The court or judge before whom the writ is returned or adjourned must immediately proceed to hear and examine the return, and such other matters as are properly submitted for consideration, unless for good cause shown the hearing is adjourned, in which event the court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. If the person imprisoned or restrained is not produced because of his alleged sickness or infirmity, the court or judge must be satisfied that it is so grave that such person cannot be produced without danger, before proceeding to hear and dispose of the matter. On the hearing the court or judge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authorized to commit by law.

Section 13.When the return evidence, and when only a plea. — If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts.

Section 14.When person lawfully imprisoned recommitted, and when let to bail. — If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. If he be admitted to bail, he shall forthwith file a bond in such sum as the court or judge deems reasonable, considering the circumstances of the prisoner and the nature of the offense charged, conditioned for his appearance before the court where the offense is properly cognizable to abide its order of judgment; and the court or judge shall certify the proceedings, together with the bond, forthwith to the proper court. If such bond is not so filed, the prisoner shall be recommitted to confinement.

Rule 102, Section 14 retains historical death-penalty wording, but the imposition of the death penalty is prohibited by R.A. No. 9346, Section 2. The stated penalty alone does not determine bail: under Article III, Section 13 of the 1987 Constitution, before conviction, a person charged with an offense punishable by reclusion perpetua or life imprisonment is not entitled to bail when the evidence of guilt is strong.

Section 15.When prisoner discharged if no appeal. — When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released.

Section 16.Penalty for refusing to issue writ, or for disobeying the same. — A clerk of a court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, and may also be punished by the court or judge as for contempt.

Section 17.Person discharged not to be again imprisoned. — A person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court having jurisdiction of the cause or offense; and a person who knowingly, contrary to the provisions of this rule, recommits or imprisons, or causes to be committed or imprisoned, for the same offense, or pretended offense, any person so set at liberty, or knowingly aids or assists therein, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, notwithstanding any colorable pretense or variation in the warrant of commitment, and may also be punished by the court or judge granting the writ as for contempt.

Section 18.When prisoner may be removed from one custody to another. — A person committed to prison, or in custody of an officer, for any criminal matter, shall not be removed therefrom into the custody of another unless by legal process, or the prisoner be delivered to an inferior officer to carry to jail, or, by order of the proper court or judge, be removed from one place to another within the Philippines for trial, or in case of fire epidemic, insurrection, or other necessity or public calamity; and a person who, after such commitment, makes, signs, or countersigns any order for such removal contrary to this section, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action.

Section 19.Record of writ, fees and costs. — The proceedings upon a writ of habeas corpus shall be recorded by the clerk of the court, and upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires. The fees of officers and witnesses shall be included in the costs taxed, but no officer or person shall have the right to demand payment in advance of any fees to which he is entitled by virtue of the proceedings. When a person confined under color of proceedings in a criminal case is discharged, the costs shall be taxed against the Republic of the Philippines, and paid out of its Treasury; when a person in custody by virtue or under color of proceedings in a civil case is discharged, the costs shall be taxed against him, or against the person who signed the application for the writ, or both, as the court shall direct.

> 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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 affiants 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.

SEC. 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.

SEC. 12. What may be done at pre-trial.

D. Habeas Corpus (Rule 102); Custody of Minors (A.M. No. 03-04-04-SC) (part 2 of 2)

• 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.

Writ of Habeas Corpus

Under Section 1, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto except as otherwise expressly provided by law. (R102, S1)

It may be analogized to a proceeding in rem and instituted for the sole purpose of fixing the status of a person. (Herrera, Remedial Law III-A Special Proceedings and Special Rules Implementing the Family Courts Act of 1997, 2005)

Note: Actual physical restraint is not required; any restraint which will prejudice freedom of action is sufficient. (Moncupa v. Enrile, G.R. No. L-63345, January 30, 1986)

Purposes

Its vital purposes are to obtain immediate relief from illegal confinement, to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody. (Velasco v. Court of Appeals, G.R. No. 118644, 1995)

The object of the writ of habeas corpus is to inquire into the legality of the detention, and, if the detention is found to be illegal, to require the release of the detainee. (Mangila v. Judge Pangilinan, G.R. no. 160739, 2013)

When Habeas Corpus Proper:

• All cases of illegal confinement/detention by which any party is deprived of his liberty;
• If the rightful custody of a person is withheld from the one entitled to it.
• As a post-conviction remedy, it may be allowed when, as a consequence of a judicial proceeding, any of the following exceptional circumstances is attendant:
• there has been a deprivation of a constitutional right resulting in the restraint of a person;
• the court had no jurisdiction to impose the sentence; or
• the imposed penalty has been excessive, thus voiding the sentence as to such excess. (Go vs. Dimagiba, G.R. No. 151876, June 21, 2005)

Invasion or rebellion, when public safety requires it, is a condition for suspension of the privilege of the writ of habeas corpus, not a ground for granting the writ. (Art. VII, Sec. 18 of the 1987 Constitution)

Nature

Proceedings in habeas corpus are separate and distinct from the main case from which the proceedings spring. They rarely, if ever, touch the merits of the case and require no pronouncement with respect thereto. They deal simply with the detention of the prisoner and stop with the authority by virtue of which he is detained. (Ching v. Insular Collector of Customs, G.R. No. L-10972, 1916)

General Rule: Writ of habeas corpus shall not issue if the restraint is voluntary. (Sombong v. CA, G.R. No. 111876, 1996)

Exception: Writ of habeas corpus is a proper remedy to enable parents to regain custody of a minor, even if the minor is in the custody of a 3rd person of his own free will. (Sombong v. CA, G.R. No. 111876, 1996)

Rationale: Custody cases involving minors are prosecuted to determine custody rights over a child.

Errors of Fact or Law – not correctible by Habeas Corpus

Mere errors of fact or law, which did not have the effect of depriving the trial court of its jurisdiction over the case and the person of the defendant, are not correctible in a petition for the issuance of the writ of habeas corpus; if at all, these errors must be corrected on certiorari or on appeal, in the form and manner prescribed by law.

Who may grant the writ

• Supreme Court or any member thereof – enforceable anywhere in the Philippines and made returnable before a court or judge authorized by the applicable habeas corpus rule
• Court of Appeals or any member thereof - enforceable anywhere in the Philippines and made returnable before a court or judge authorized by the applicable habeas corpus rule
• Regional Trial Court or a judge thereof – enforceable only within his judicial district, returnable only to itself. (R102, S2)

The Supreme Court, the Court of Appeals and Regional Trial Courts have concurrent jurisdiction to issue Writs of Habeas Corpus.

In the absence of all Regional Trial Court judges in a province or city, Municipal Trial Court judges may hear and decide petitions for a writ of habeas corpus in that province or city.

Petitions involving custody of minors may be filed with the Family Court; they may likewise be filed with the Supreme Court or Court of Appeals, or a member thereof. (RA 8369, Sec. 5(b); A.M. No. 03-04-04-SC, Sec. 20)

The Sandiganbayan may grant the writ only if it is in aid of its appellate jurisdiction. (Festin, Special Proceedings: A Foresight to the Bar Exam, 2nd Ed. 2011)

Defect of form

No writ of habeas corpus can be disobeyed for defect of form IF it sufficiently states in whose custody or under whose restraint the party imprisoned is held AND the court or judge to whom he is to be brought. (R102, S9)

PROCEDURE FOR HEARING

For a petition for the writ of amparo, the hearing shall be summary in nature. However, the court, justice, or judge MAY call for a preliminary conference to simplify the issues and look at possibility of obtaining stipulations and admissions from the parties. Hearing shall be from day to day until completed; same priority as petitions for writ of habeas corpus. (Sec. 13, A.M. No. 07-9-12-SC)

Effect of release of detained person on the petition

General Rule: The release, whether permanent or temporary, of a detained person, may render the petition for habeas corpus moot and academic if it ends the challenged restraint; it does not do so when substantial restraints on liberty continue.

The writ is not allowed when

• Person is in custody of an officer
• Under process issued by a court or judge; or
• By virtue of a judgment; or
• By virtue of an order of the court;
• and that the court or judge had jurisdiction to issue the process, render the judgment or make the order.
• Habeas corpus cannot be used merely to secure the discharge of a person lawfully charged with or convicted of an offense in the Philippines; it remains available to challenge a void restraint or judgment on recognized exceptional grounds.
• Person is suffering imprisonment under lawful judgment (R102, S4)

If the court’s or judge’s jurisdiction appears after the writ is allowed, the person shall not be discharged merely because of an informality or defect in the process, judgment, or order. (R102, S4)

DISTINGUISH: WRIT OF HABEAS CORPUS, WRIT OF AMPARO, AND WRIT OF HABEAS DATA

WHEN WRIT DISALLOWED OR DISCHARGED

WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS

The following order of preference shall be observed as far as practicable:

• Both parents jointly;
• Either parent, taking into account all relevant considerations especially the choice of the minor over seven (7) years of age and of sufficient discernment, unless parent chosen is unfit;
• The grandparent, if there are several, then the grandparent chosen by the minor over seven (7) years of age and of sufficient discernment, unless grandparent chosen is unfit or disqualified;
• The eldest brother or sister over twenty-one (21) years of age, unless he or she is unfit or disqualified
• The actual custodian of the minor over twenty-one (21) years of age, unless the former is unfit or disqualified; or
• Any other person or institution the court may deem suitable to provide proper care and guidance for the minor. (Sec. 13, A.M. NO. 03- 04-04-SC)

Under Section 1, Rule 102, the writ of habeas corpus is available, not only in cases of illegal confinement or detention by which any person is deprived of his liberty, but also in cases involving the rightful custody over a minor.

The general rule is that parents should have custody over their minor children. But the State has the right to intervene where the parents, rather than care for such children, treat them cruelly and abusively, impairing their growth and well-being and leaving them emotional scars that they carry throughout their lives unless they are liberated from such parents and properly counseled. (Vingson Yu v. Cabcaban, UDK No. 14817, 2014, A.M. NO. 03-04- 04-SC)