REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
CITY OF MANILA
IN RE: IN THE MATTER OF THE
ISSUANCE OF A WRIT OF HABEAS
CORPUS AGAINST POCAHONTAS
FOR
THE
RETURN
OF
THE
CUSTODY OF THE MINOR CHILD
JANE SMITH

JOHN SMITH,
Petitioner,
SPEC.
PROC.
NO.
__________________
FOR: ISSUANCE OF A WRIT OF
HABEAS CORPUS

- versus
POCAHONTAS,
Respondent.

x
------------------------------------------------------- x

PETITION
Petitioner, JOHN SMITH (herein referred to as the Petitioner),
by and through the undersigned counsel, unto this Honorable Court,
most respectfully avers that:

PREFATORY STATEMENT
The Respondent has been intentionally obstructing the
Petitioners parental rights over their daughter since her birth; hiding
her in the Philippines and evading the grasp of justice.
Parents have the natural right, as
well as the moral and legal duty, to
care for their children, see to their
upbringing and safeguard their best
interest and welfare. This authority
and responsibility may not be
unduly denied the parents; neither
may it be renounced by them. Even
when the parents are estranged and
their affection for each other is lost,
the attachment and feeling for their
offsprings
invariably
remain
unchanged. Neither the law nor the
courts allow this affinity to suffer
absent, of course, any real, grave
1

and imminent threat to the wellbeing of the child.1

PARTIES
1.

Petitioner is a citizen of the Great Britan, of legal age,

single and a resident of 123123 Bakers Street, Great Britain. The
Petitioner may be served with notices and/or processes from this
Honorable Court through the undersigned counsel at Unit 23, Pegasus
Building, Quezon City, Philippines.

2.

The Respondent POCAHONTAS (herein referred to as the

Respondent) is a citizen of the Philippines, of legal age, single and
whose last known residence is at 55 Willow Street, Quezon City,
Philippines.

3.

Minor JANE SMITH (herein referred to as JANE) is the

legitimate daughter of the Petitioner and Respondent. She was born on
25 February 2015. Presently, she is under the unlawful custody of the
Respondent. The Respondent continuously prohibits the Petitioner from
seeing or contacting their daughter.

FACTS
4.

For years, the Petitioner has been denied physical visitation

and custody over his daughter, perpetrated by the Respondent. He has
been kept in the dark, the Respondent often taunting him that he wont
see his daughter again.

5.

The Petitioner, in an attempt to seek help from the proper

authorities in the Philippines, has sent numerous letters to no avail. All
his pleas were met with deaf ears.

6.

Petitioner, having no other recourse, humbly asks the

intervention of this Honorable Court, so as to compel herein
Respondent to deliver Jane to him whom the Respondent has been
unlawfully restraining under her custody.
DISCUSSION

7.

Petitioner, in filing the instant case, was guided by the

following ruling set by the Supreme Court in the case of Johanna
Sombong vs. Court of Appeals,2 to wit:
In the second part of the same
provision, however, Habeas Corpus
may be resorted to in cases where
"the rightful custody of any person
is withheld from the person entitled
thereto." Thus, although the writ of
Habeas Corpus ought not to be
issued if the restraint is voluntary,
1 Silva v CA, G.R. 114742, 17 July 1997.
2 Sombong v. CA, G.R. No. 111876, January 31, 1996.
2

we have held time and again that

the said writ is the proper legal
remedy to enable parents to regain
the custody of a minor child even if
the latter be in the custody of a
third person of her own free will.
It may even be said that in custody
cases
involving
minors,
the
question of illegal and involuntary
restraint of liberty is not the
underlying
rationale
for
the
availability of the writ as a remedy;
rather, the writ of habeas corpus is
prosecuted for the purpose of
determining the right of custody
over a child.
The controversy does not involve
the question of personal freedom,
because an infant is presumed to
be in the custody of someone until
he attains majority age. In passing
on the writ in a child custody case,
the court deals with a matter of an
equitable nature. Not bound by any
mere legal right of parent or
guardian, the court gives his or her
claim to the custody of the child
due weight as a claim founded on
human nature and considered
generally
equitable
and
just.
Therefore, these cases are decided,
not on the legal right of the
petitioner to be relieved from
unlawful imprisonment or detention,
as in the case of adults, but on the
court's view of the best interests of
those whose welfare requires that
they be in custody of one person or
another. Hence, the court is not
bound to deliver a child into the
custody of any claimant or of any
person,
but
should,
in
the
consideration of the facts, leave it
in such custody as its welfare at the
time appears to require. In short,
the child's welfare is the supreme
consideration.3
8.

The Supreme Court in the same case laid down the

following requisites for the grant of the Writ of Habeas Corpus, as
follows:

3 Id.
3

The
foregoing
principles
considered, the grant of the writ in
the instant case will all depend on
the concurrence of the following
requisites: (1) that the petitioner
has the right of custody over the
minor; (2) that the rightful custody
of the minor is being withheld from
the petitioner by the respondent;
and (3) that it is to the best interest
of the minor concerned to be in the
custody of petitioner and not that
of the respondent.4
9.

The Petitioner has the right of custody over the Parties

minor children. The Family Code provides that parental authority over
the common children shall be jointly exercised by the parents. Parental
authority over the daughter of the Petitioner and the Respondent shall
be exercised by both of them as provided by Article 211 of the Family
Code, thus:
Art. 211. The Father and the
mother
shall
jointly
exercise
parental authority over the persons
of their common children. In case
of disagreement, the fathers
decision shall prevail, unless there
is a judicial order to the contrary.

10.

It being that Jane is the common child of both the Petitioner and the
Respondent; both parents have an equal right to the custody of Jane. It
is thus clear that the Respondent has the right of custody over the
minor, being the biological father.

11.

However, as sufficiently narrated above, the Respondent has

perpetrated the continued prevention of parental custody against the
Petitioner. Through lying to the Court, hiding and changing residences,
and filing of multiple frivoJanes cases; the Respondent has been able to
withhold custody from the Petitioner.

12.

Furthermore, Article 213 of the Family Code provides that in case of

separation of the parents, a paramount consideration is the best
interest of the child, thus:
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,
4 Id.
4

unless the court finds compelling

reasons to order otherwise.
13.

In the case at bar, it is patently clear that the exercise of sole custody
of the Respondent is against the best interest of the child. As was
earlier exemplified, the Petitioner is negligent in caring for Jane. The
Petitioner, in the few times he has seen his daughter, observed that
she was malnourished, sick and yellow with jaundice.

14.

Furthermore, the Respondents extra-marital indiscretions and infidelity

are badges that she is indeed ill-fit to exercise of parental authority
over the child. Continued exercise of sole custody by the Respondent is
a real, grave and imminent threat to the well-being of the Petitioners
daughter.

15.

On the other hand, it would be in the best interest of the child if sole
custody over her be awarded to the Petitioner.

16.

The Petitioner, as Janes biological father, did foster her in reasonable

expectation to guide the child in living a life of honesty, respect,
responsibility and compassion, patience, forgiveness and generosity;
teaching his daughter to respect the feelings, opinions and privacy of
others as individuals.

17.

It has been the Petitioners duty to guide his daughter in life, to provide
discipline for his daughter in a structured, consistent, predictable and
fair manner to teach and guide her in these formative years of his
childhood while simultaneously showing the good qualities of fairness
and forgiveness to his daughter. Yet this duty is unduly prevented by
the Respondent.

18.

The above-cited circumstances clearly show that requisites for the

grant of custody and issuance of a Writ of Habeas Corpus as laid down
in Sombong vs. Court of Appeals5 are all present in this case. The Child
and Youth Welfare Code also provides that:
Article
8.
Child's
Welfare
Paramount. - In all questions
regarding
the
care,
custody,
education and property of the child,
his welfare shall be the paramount
consideration.

19.

It could be gleaned from the above-quoted provision of law that the

welfare and best interests of the child should be made the paramount
consideration. This guiding principle was reiterated by the Supreme
Court in the case of Unson III vs. Navarro, 6 where the Supreme Court
held that:
"in all controversies regarding the
custody of minors, the sole and
foremost
consideration
is
the
physical, education, social and
moral
welfare
of
the
child
5 Id.
6 Unson III v. Navarro, 101 SCRA 183, November 17, 1980.
5

concerned, taking into account the

respective resources and social and
moral situations of the contending
parents"
20.

The Supreme Court further held in the case of Reynaldo Espiritu vs.
Court of Appeals7 that:
In ascertaining the welfare and
best interests of the child, courts
are mandated by the Family Code to
take into account all relevant
considerations. If a child is under
seven years of age, the law
presumes that the mother is the
best custodian. The presumption is
strong but it is not conclusive. It can
be
overcome
by
"compelling
reasons". If a child is over seven, his
choice is paramount but, again, the
court is not bound by that choice. In
its discretion, the court may find the
chosen parent unfit and award
custody to the other parent, or even
to a third party as it deems fit under
the circumstances.8

21.

The Petitioner has been denied his parental right for so many years by
the Respondent, and thus he files this instant Petition as he has no
other recourse but to seek the intervention of this Honorable Court.

22.

In view thereof, the Petitioner respectfully submits that the best

interest of his daughter is best served if custody is awarded to him.
This is especially so since the Respondent is unfit to take care of her
owing to her unlawful behavior, and extra-marital indiscretions.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

that after the filing of this instant Petition, a Writ of Habeas Corpus be
issued against the Respondent, directing the latter to deliver to this
Honorable Court, the custody of minor child JANE SMITH.

7 Espiritu v. C.A., G.R. No. 115640, March 15, 1995.

8 Id.
6

Thereafter, it is likewise prayed that the Honorable Court order

the Respondent to give the custody and parental authority over JANE
SMITH to the Petitioner.

Other measures of relief just and equitable under the premises

are likewise prayed for.
Quezon City for the City of Manila, 27 January 2019.

For:

THE LAW OFFICE

Counsel for the Petitioner
Unit 23 Pegasus Bulding, Quezon City, Philippines
By:
GASTON NEMODORY
Roll No. 143420

COMPLIANCE/EXPLANATION
In compliance with Section 11, Rule 13 of the Rules of Court, the
foregoing Petition for Issuance of Writ of Habeas Corpus is filed
personally.

GASTON NEMODORY