Special Proceedings Part 2

Question 1

Who may adopt

Answer 1

1. Any Filipino Citizen at least 25 years of age
2. In full possession of civil and legal rights
3. Has not been convicted of a crime involving moral turpitude
4. good moral character and can model the same
5. at least 16 years older than the adoptee (may be waived if the biological parent or spouse of adoptee’s parent)

Question 2

When may foreign nationals adopt?

Answer 2

Permanent or habitual residents with the same as Filipino adopters

PROVIDED
1. They come from a country with diplomatic relations
2. Adopter’s country acknowledges the child as a legal child
3. Allow entry of adoptee in that country

(Residency may be waived)

Question 3

When may residency be waived?

Answer 3

1. Former PH citizen habitually residing in the PH seeks to adopt a relative within 4th civil degree of C/A
2. One who seeks to adopt the legitimate child of the spouse
3. One married to a PH Citizen and seeks to jointly adopt a relative of the spouse within 4th

Question 4

Rule on spouses adopting jointly?

Answer 4

GR: Spouses shall adopt jointly

XP:
1. One spouse seeks to adopt the legitimate child of the other
2. One spouse seeks to adopt his own illegitimate child provided the other spouse consents thereto
3. Spouses are legally separated from each other

Question 5

Whose consent is necessary for adoption?

Answer 5

1. Adoptee if 10 y/o or older
2. Biological parents of the child if known, legal guardian or proper government instrumentality who has custody of the child
3. Legitimate and adopted children of adopters if 10 years or older
4. Illegitimate children 10 years or older if living with the adopter or adopter exercises parental authority
5. Spouse

children under 10 shall be counseled and consulted

Question 6

Effects of adoption

Answer 6

1. Legitimacy - Adoptee shall be considered a legitimate child of the adapter
2. Parental Authority - upon issuance of the order of adoption, adoption shall cease as alternative care and becomes parental care
3. Succession - Adopter and adoptee have reciprocal rights of succession

Question 7

iEffects of recession of petition for adoption

Answer 7

1. Legal custody of NACC shall be restored if the adoptee is still a child
2. Reciprocal rights and obligations between the adopter and adoptee are extinguished
3. If biological parents can prove that they are fit to support and take care of the child, they may petition NACC for restoration of parental authority over the child

Question 8

Writ of Amparo

Answer 8

An extraordinary remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee or private individual entity

Question 9

What does the Writ of Amparo cover?

Answer 9

Covers extralegal killings and enforced disappearances or threats thereof

Question 10

Why is government participation essential for the writ of amparo to issue?

Answer 10

Allegations and proof that the persons subject thereof are missing are not enough.

It must be shown and proven by substantial evidence that the disappearance was carried out by or with the authorization of the State

Followed by a refusal to acknowledge the same or give information of the whereabouts of said missing person

Question 11

Who may file a petition for the issuance of the writ of amparo

Answer 11

Any aggrieved party or any qualified person in the following order

1. Any member of the immediate family (spouse, children or parents of the aggrieved party)
2. Any ascendant/descendant or collateral relative of the aggrieved party within the fourth civil degree
3. Any concerned citizen, organization association, institution if there is no known member of the immediate family or relative of the aggrieved party

Question 12

Effect if aggrieved party files a petition of writ of amparo

Answer 12

Suspends the right of all other authorized parties to file similar petitions.

Question 13

Quantum of Evidence in writ of amparo proceedings?

Answer 13

Substantial evidence - such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion

Question 14

Is the writ of amparo the proper remedy for obtaining parental authority over a child?

Answer 14

No. The writ is confided only to cases of extralegal killings or enforced disappearances or threats thereof. Proper remedy is writ of HC in relation to custody of minors.

Question 15

Contents of a petition of a writ of amparo

Answer 15

1. PC of petitioner
2. Name app of respondent responsible for the act or threat, if unknown respect may be by an assumed appelation
3. Right to life, liberty or security of the aggrieved party is violated or threatened to be violated by an unlawful A/O , and how act was committed with supporting affidavit
4. Investigation conducted if any, specifying the names, pc and addresses of the investigating authority
5. Actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party
6. Relief prayed for

Question 16

Where is the writ of amparo filed

Answer 16

may be filed on **any day at any time ** with the RTC of the place where any of the elements occurred

or with the SB, CA SC

The writ is enforceable anywhere in the PH

Question 17

Contents of a return for writs of amparo

Answer 17

within 72 hours after service, the respondent shall file a verified written return stating the followng

1. lawful defenses to show that there was no violation to life, liberty and security
2. Steps or actions taken by the petitioner to determine the fate or whereabouts of the aggrieved party
3. All relevant info in the possession of the respondent pertaining to the threatened act or omission of
4. If the respondent is a public official, the return shall state that certain actions shall still be taken

Question 18

Failure to file the return after service of the writ of amparo

Answer 18

1. Respondent waives any defense he/she may have had
2. Court shall proceed to hear the petition ex parte

Question 19

Interim Reliefs upon filing a petition for writ of amparo

Answer 19

1. Temporary Protection Order
2. Inspection Order
3. Production Order
4. Witness protection order

Question 20

Does the filing of a writ of amparo preclude the filing of a separate action based on the same petition?

Answer 20

No. It does not preclude the filing of a separate CCA action

Question 21

Effect when a criminal action arising out of the A/O subject of the writ of amparo case has been commenced?

Answer 21

No separate petition for the writ shall be filed. The reliefs under the write shall be available by motion in the criminal case.

Question 22

Writ of Habeas Data

Answer 22

Remedy available to any person whose right to privacy in life, liberty or security is violated or threatened with an unlawful act or omission of a public official or private individual engaged in the gathering, collecting or storing of data

Question 23

Who may file a petition for a writ of habeas data?

Answer 23

Any aggrieved may file a petition for the writ of habeas data

Question 24

When shall the court issue a writ of habeas data?

Answer 24

Upon the filing of the petition, the court shall immediately order the issuance of the writ if on its face it ought to issue.

The CoC shall serve the writ within 3 days under the seal of the court.

In cases of urgency, the judge may issue the writ under his own hand and deputize any person to serve it

Question 25

103 - Grounds to warrant a change of name

Answer 25

1. Name is ridiculous, dishonorable or extremely difficult to write or pronounce
2. When the change of name results as a legal consequence of legitimation or adoption
3. Change will avoid confusion
4. When one has continuously used and been known since childhood by a Filipino name and unaware of alien parentage
5. Based on a sincere desire to adopt a Filipino name to erase signs of former alienage
6. When the surname causes embarrassment and there is no showing that it was for a fraudulent purpsoe

Question 26

103 - is a change of name a matter of right?

Answer 26

It is a privilege. Hence proper and reasonable cause must be shown before it is authorized.

Question 27

103 where should a petition for a change of name be filed?

Answer 27

RTV where petitioner residees

Question 28

When is Rule 108 applicable?

Answer 28

Substantial changes and correction s in the civil register

Question 29

Who are parties that must be impleaded to a cancellation or correction under rule 108?

Answer 29

1. Civil Registrar
2. All persons who have claim or any interest which would be affected thereby

Question 30

May a petition for correction under rule 108 be granted by reason of a sex change?

Answer 30

No. A birth certificate is a historical record of the facts that existed at the time of birth. Thus, sex is determined at the time of birth.

There is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error is immutable.

Question 31

Rule 108 in relation to recognition of foreign judgment of divorce

Answer 31

Recognition of foreign judgment of divorce may be made in a special proceeding under Rule 108

Question 32

Proper remedy to assail a marriage which allegedly exists but actually doesn’t exist

Answer 32

Rule 108 to correct the entries in one’s civil registry records and cancel the entry therein pertaining to the marriage.

A direct attack on the marriage via a petition for declaration for nullity is improper bc there is no marriage to begin with.

Question 33

Who may file a petition for clerical or typographical errors for change of nickname?

Answer 33

Any person having direct and personal interest in the correction of a clerical or typo. error

Question 34

Grounds for change of first name or nickname

Answer 34

1. Petitioner finds the name to be ridiculous or tainted with dishonor or extremely difficult to write or pronounce
2. New name or nickname had been habitually and continually used and he has been publicly known by that name in the community
3. Change will avoid confusion

Question 35

Requirements for correction of date of birth (date and month) or sex of the person

Answer 35

1. Change of gender - must be accompanied by certification issued by a government physician attesting to the fact that the petitioner has not undergone a sex transplant
2. For change of name or birthday, published in a newspaper of general circulation for 2 consecutive weeks
3. Certification that he has no criminal record

10172

Question 36

Rule 108 - Appeal

Answer 36

1. Notice of appeal within 10 days from receipt of decision
2. Civil Registrar shall, within 5 working days from receipt thereof, submit the petition and all supporting documents to the Civil Registrar General (CGR)
3. CGR shall render decision within 30 days after receipt.

Question 37

Order of Preference

Answer 37

Section 6. When and to whom letters of administration granted. — If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

Question 38

Period within which creditors of the decedent may file their claims against the estate

Answer 38

Immediately after granting letters testamentary or of administration, the court shall issue a notice requiring all persons to file their claims against the estate

Court shall state the time for filing of the claims against the estate which shall be not more than 12 months and not less than 6 months after the date of first publication of the notice

Question 39

What may be claimed against the estate?

Answer 39

1. Claims for money against the decedent arising from contract, express or implied
2. Claims for funeral expenses and expenses for the last sickness of the decedent
3. Judgment for money against the estate.

Question 40

Are extensions allowed under the Statute of Non-Claims?

Answer 40

Yes. Money claims against the estate may be allowed any time before an order of distribution is entered AT THE DISCRETION OF THE COURT FOR CAUSE AND UPON SUCH TERMS AS ARE EQUITABLE.

Question 41

Rationale on Order of preference in granting letters of administration

Answer 41

Those who will reap the benefit of a wise, speedy and economical adminstration of the estate will likewise suffer consequences in the waste, improvidence or mismanagement. These people have the highest interest to administer the estate correctly.

Question 42

Is Order of preference in granting letters of administration absolute?

Answer 42

No. It depends on the attendant facts and circumstances of each case. Example - case where adminstrator failed to submit report within 7 years from appointment

Question 43

In the Order of preference in granting letters of administration, do legitimate children have a superior right over illegitimate children?

Answer 43

No. Preference given to the SS, next of kin or creditors is not absolute. However, this rule is not absolute.

Appointment greatly depends on the attendant facts and circumstances of each case. The principal consideration is the interest in said estate of one to be appointed as administrator.

Question 44

Who and when and where may file a petition of absence?

Answer 44

When: After the lapse of 2 years from the disappearance and without any news about the absentee. 5 years if he left a person in charge of administration of his property.

Who:

o Spouse
o Heirs instituted in a will who may present a copy of the same
o Relatives who would succeed by intestacy
o Those who have some right to the property of the absentee (Creditors)

Where: Residence of the absentee before the disappearance

Question 45

Effectivity of Judicial Declaration of Absence

Answer 45

Art. 386
Judicial Declaration of absence shall not take effect until 6 months following the publication in a newspaper of general circulation.

Question 46

Presumptive Death for purposes of remarriage

Answer 46

A marriage contracted during the subsistence of a previous marriage is void. The prior spouse must be declared presumptively dead.

This arises when where the prior spouse had been absent for a period of 4 consecutive years or 2 if there was a danger of death.

Spouse must have a well-founded belief that the spouse is dead.

Question 47

“Well-founded belief” for presumptive death

Answer 47

Present spouse must prove that his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and based on these efforts and inquiries, he believes that the spouse is dead.

Question 48

Affidavit of Reappearance

Answer 48

 Spouse must file an affidavit of reappearance in the court that declared his presumptive death
 1st marriage shall be considered subsisting
 2nd marriage is dissolved

Question 49

Residency requirement for declaration of nullity of marriage

Answer 49

• Sworn certification of residency with certification given by Barangay and a sketch house location
• Sworn statement of the counsel of petitioner that after reasonable inquiry, that that is the residence of the client and that is where the client actually lives for the past 6 months prior to the filing of the petition. Counsel explained rationale of venue and consequence of non-compliance

o Counsel is held liable for non-compliance.’’
- Other documentary reqs (any 1 will do)
o If rented, contract of lease (notarized).
o Utility Bills, 6 months prior to filing of petition
o ID issued at least 6 months prior to filing of petition showing residence
o TCT or Tax Dec

Question 50

Exemption to residency requirements for annullment of marriage

Answer 50

If any violence occurred and caused spouse to leave, must specifiy that it was due to domestic violence or other criminal acticity, the spouse is exempt from giving

Question 51

process under 9048

Answer 51

For the correction of clerical or typographical errors.

Filed with the local civil registrar’s office where the record is kept.

Question 52

Clerical Errors vs Substantial Errors

Answer 52

A clerical error is one which is visible to the eyes or obvious to the understanding; an error made by a clerk or a transcriber; a mistake in copying or writing, or a harmless change such as a correction of name that is clearly misspelled or of a misstatement of the occupation of the parent.

On the other hand, substantial or contentious alterations may be allowed only in adversarial proceedings, in which all interested parties are impleaded and due process is properly observed.

Substantial and controversial alterations include those which may affect the citizenship, legitimacy of paternity or filiation, or legitimacy of marriage.

Tan vs. Office of the Local Civil Registrar of the City of Manila, 901 SCRA 158, G.R. No. 211435 April 10, 2019

Question 53

Grounds for rescission of administrative adoption filed by the adoptee

Answer 53

a. Repeated Physical or verbal maltreatment by the adopter despite having undergone counseling Case to case basis, if first time is serious then no need for repetition

2. Attempt on the life of the adoptee
3. Abandonment or failure to comply with parental obligations.

Question 54

Presumption of Death

Answer 54

Article 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)

Question 55

Who are incompetent to serve as executors

Answer 55

No person is competent to serve as an executor or administrator who is:
1. A minor
2. Not a resident of the Philippines
3. In the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence or want of understanding or integrity or conviction of an offense involving moral turpitude (DIWC)