Answer (Petition for Habeas Corpus)

(1)

Republic of the Philippines

REGIONAL TRIAL COURT OF LANAO DEL NORTE

12

12THTH_{Judicial Region}_{Judicial Region}

Branch

Branch 03, 03, Iligan Iligan CityCity

IN

IN TTHHE E MAMATTTETER R oof f PEPETTIITTIIONON

FOR

FOR HABEAS CORPUS HABEAS CORPUS

AMANDA EGURO AMANDA EGURO,, Petitioner, Petitioner, -versus-AGAPITO APIT! AGAPITO APIT! Respondent. Respondent. X---X------ !P"CI#$ PR%C. &o. !P"CI#$ PR%C. &o. "#1$ "#1$ ' '%%RR(( PEPETITITITION ON FOFORR HABEAS HABEAS CORPUS CORPUS

AN%ER

Respondent, by counsel, unto the )onorable Court, respectfully

alleges(

ADMIION and DENIAL

*+Par. +, , 3,  / and  of the petition are

*+Par. +, , 3,  / and  of the petition are ADMITTED ADMITTED..

*!ub1ect to

*!ub1ect to !pecial and #f!pecial and #ffir2ative efensefir2ative efenses hereafter set s hereafter set forth in thisforth in this

#ns4er

#ns4er, , ParPar. . 5 5 is is specificaspecificallylly DENIEDDENIED fofor r 4a4ant nt of of 6n6no4o4leledgdgee

sufficient to for2 a belief as to the truth or falsity thereof.

*3Par. 7, 8 and +0 are

*3Par. 7, 8 and +0 are DENIEDDENIED for 4ant of 6no4ledge sufficient to for2for 4ant of 6no4ledge sufficient to for2

a belief as to the truth or falsity thereof.

*!ub1ect to

*!ub1ect to !pecial and #f!pecial and #ffir2ative efensefir2ative efenses hereafter set s hereafter set forth in thisforth in this

#ns4er

#ns4er, Par, Par. +. ++, + an+, + and +3 of the petitiod +3 of the petition are specificallyn are specifically DENIEDDENIED for for

4ant of 6no4ledge sufficient to for2 a belief as to the truth or falsity

thereof9

*/Par. + of the petition are

*/Par. + of the petition are ADMITTED ADMITTED99

*!ub1ect to

*!ub1ect to !pecial and #f!pecial and #ffir2ative efensefir2ative efenses hereafter set s hereafter set forth in thisforth in this

#ns4er

#ns4er, , Par. Par. +/ +/ of of the the petitiopetition n are are specificallyspecifically DENIEDDENIED for 4ant of for 4ant of

6no4ledge sufficient to for2 a belief as to the truth or falsity thereof9

*5Par. + of the petition is

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PECIAL AND AFFIRMATI&E DEFENE

Respondent re-plead all the foregoing allegations and further allege that

----*7T'e (e)i)ion i* no) (+o(e+ . :he case of Johanna Sombong vs. Court of Appeals et. al., ;.R. &o. +++75. <anuary 3+, +88, e=plains the nature and application of the 4rit as follo4s(

>In general, the purpose of the 4rit of habeas corpus is to deter2ine 4hether or not a particular person is legally held. # pri2e specification of an application for a 4rit of habeas corpus, in fact, is an actual and effective, and not 2erely no2inal or 2oral, illegal restraint of liberty. :he 4rit of habeas corpus 4as devised and e=ists as a speedy and effectual re2edy to relieve persons fro2 unla4ful restraint, and as the best and only sufficient defense of personal freedo2. # pri2e specification of an application for a 4rit of habeas corpus is restraint of liberty. :he essential ob1ect and purpose of the 4rit of habeas corpus is to in?uire into all 2anner of involuntary restraint as distinguished fro2 voluntary, and to relieve a person therefro2 if such restraint is illegal. #ny restraint 4hich 4ill preclude freedo2 of action is sufficient. +

'unda2entally, in order to 1ustify the grant of the 4rit of habeas corpus, the restraint of liberty 2ust be in the nature of an illegal and involuntary deprivation of freedo2 of action. :his is the basic re?uisite under the first part of !ection +, Rule +0, of the Revised Rules of Court, 4hich provides that e=cept as other4ise e=pressly provided by la4, the 4rit of habeas corpus shall e=tend to all cases of illegal confine2ent or detention by 4hich any person is deprived of his liberty.

In the second part of the sa2e provision, ho4ever, Habeas Corpus 2ay be resorted to in cases 4here the rightful custody of any person is 4ithheld fro2 the person entitled thereto. :hus, although the @rit of Habeas Corpus ought not to be issued if the restraint is voluntary, 4e have held ti2e and again that the said 4rit is the proper legal re2edy to enable parents to regain the custody of a 2inor child even if the latter be in the custody of a third person of her o4n free 4ill.

It 2ay even be said that in custody cases involving 2inors, the ?uestion of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the 4rit as a re2edy9 rather, )'e ,+i) of habeas corpus i* (+o*ecu)ed fo+ )'e (u+(o*e of de)e+-ining )'e +ig') of cu*)od. o/e+ a c'ild0 *"2phasis supplied

1_{Aillavicencio v. $u6ban, 38 Phil. 557.}

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:he controversy does not involve the ?uestion of personal freedo2, because an infant is presu2ed to be in the custody of so2eone until he attains 2a1ority age. In (a**ing on )'e ,+i) in a c'ild cu*)od. ca*e! )'e cou+) deal* ,i)' a -a))e+ of an eui)ale na)u+e0 No) ound . an. -e+e legal +ig') of (a+en) o+ gua+dian! )'e cou+) gi/e* 'i* o+ 'e+ clai- )o )'e cu*)od. of )'e c'ild due ,eig') a* a clai- founded on 'u-an na)u+e and con*ide+ed gene+all. eui)ale and 3u*)0 T'e+efo+e! )'e*e ca*e* a+e decided! no) on )'e legal +ig') of )'e (e)i)ione+ )o e +elie/ed f+o- unla,ful i-(+i*on-en) o+ de)en)ion! a* in )'e ca*e of adul)*! u) on )'e cou+)* /ie, of )'e e*) in)e+e*)* of )'o*e ,'o*e ,elfa+e +eui+e* )'a) )'e. e in cu*)od. of one (e+*on o+ ano)'e+0 Hence! )'e cou+) i* no) ound )o deli/e+ a c'ild in)o )'e cu*)od. of an. clai-an) o+ of an. (e+*on! u) *'ould! in )'e con*ide+a)ion of )'e fac)*! lea/e i) in *uc' cu*)od. a* i)* ,elfa+e a) )'e )i-e a((ea+* )o +eui+e0 In *'o+)! )'e c'ild4* ,elfa+e i* )'e *u(+e-e con*ide+a)ion0 *"2phasis supplied

Considering that the childs 4elfare is an all-i2portant factor in custody cases, the Child and outh @elfare Code3_{, une?uivocally} provides that in all ?uestions regarding the care and custody, a2ong others, of the child, his 4elfare shall be the para2ount consideration._{In the sa2e vein, the 'a2ily Code authoriDes the} courts to, if the 4elfare of the child so de2ands, deprive the parents concerned of parental authority over the child or adopt such 2easures as 2ay be proper under the circu2stances./

:he foregoing principles considered, the grant of the 4rit in the instant case 4ill all depend on the concurrence of the follo4ing re?uisites( *+ that the petitioner has the right of custody over the 2inor9 * that the rightful custody of the 2inor is being 4ithheld fro2 the petitioner by the respondent9 and *3 )'a) i) i* )o )'e e*) in)e+e*) of )'e -ino+ conce+ned )o e in )'e cu*)od. of (e)i)ione+ and no) )'a) of )'e +e*(onden)05 *"2phasis !upplied

*8It is i2pliedly assu2ed that the Petitioner holds her right of custody over the child, Christopher <. is based on the general rule that a child under seven *5 years of age shall not be separated fro2 his 2other, 4hich is based on the basic need of a child for his 2others loving care9

3_{Presidential ecree &o. 03, as a2ended.}

4_{Id., #rticle 7.}

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*+0 Indeed #rticle +3 of the 'a2ily Code provides that >EnFo child under seven years of age shall be separated fro2 the 2other, unless the court finds co2pelling reasons to order other4ise.G :his is 2ore pronounced in case of illegiti2ate children, as the la4 e=pressly provides that illegiti2ate children shall be under the parental authority of their 2other9

*++ :his rule ho4ever is not absolute. "ven a 2other 2ay be deprived of the custody of her child 4ho is belo4 seven years of age for >co2pelling reasons9G

*+ !ection + of #.H. &o. 03-0-0-!C other4ise 6no4n as the Proposed Rule %n Custody %f Hinors #nd @rit %f Habeas Corpus in Relation :o Custody %f Hinors provides that(

6ec)ion 170 Factors to consider in determining custody 0 - In a,a+ding cu*)od.! )'e cou+) *'all con*ide+ )'e e*) in)e+e*)* of )'e -ino+ and *'all gi/e (a+a-oun) con*ide+a)ion )o 'i* -a)e+ial and -o+al ,elfa+e0 T'e e*) in)e+e*)* of )'e -ino+ +efe+ )o )'e )o)ali). of )'e ci+cu-*)ance* and condi)ion* a* a+e -o*) congenial )o )'e *u+/i/al! (+o)ec)ion! and feeling* of *ecu+i). of )'e -ino+ encou+aging )o 'i* ('.*ical! (*.c'ological and e-o)ional de/elo(-en)0 I) al*o -ean* )'e lea*) de)+i-en)al a/ailale al)e+na)i/e fo+ *afegua+ding )'e g+o,)' and de/elo(-en) of )'e -ino+0 8E-('a*i* *u((lied9

:he court shall also consider the follo4ing(

X==

89 T'e de*i+e and aili). of one (a+en) )o fo*)e+ an o(en and lo/ing +ela)ion*'i( e),een )'e -ino+ and )'e o)'e+ (a+en):

8c9 T'e 'eal)'! *afe). and ,elfa+e of )'e -ino+:

X==

8f9 Hai)ual u*e of alco'ol! dange+ou* d+ug* o+ +egula)ed *u*)ance*:

X==

8'9 T'e -o*) *ui)ale ('.*ical! e-o)ional! *(i+i)ual! (*.c'ological and educa)ional en/i+on-en) fo+ )'e 'oli*)ic de/elo(-en) and g+o,)' of )'e -ino+: and

(5)

X==

*"2phasis supplied

*+3 It is over4hel2ingly alar2ing and 4orrying that the petitioner never 2entioned in her petition 4hat truly led herein respondent to abruptly ta6e in to his o4n custody the 2inor Christopher <9

*+ :he truth on the 2atter is that herein petitioner is &%: financially, physically and spiritually in a better position to ta6e care of the child, Christopher <. and the other children Christine and Cathy Hae9

*+/ @e agree that the deter2ination of 4ho is in the better position to raise a child is best left 4ith the discretion of the )onourable Court 4ith the guidance of the Rules prescribed by the la49

*+ )o4ever, respondent in his case i22ediately too6 custody of the 2inor child 4hen he found out that herein petitioner is continuously unable to perfor2 her responsibility as a 2other to the children because of her HA;ITUAL DRUN<ENNE9

*+5 Respondent and petitioner never had a continuous co22unication at the 2o2ent respondent found out about this 2atter9

*+7 In fact, it is even the Petitioner 4ho 4ithheld the children fro2 respondent and avoided the calls and persistent contacts fro2 the respondent9

*+8 uring the su22er of 0+, it 4as not the petitioner 4ho is ta6ing care of the children but it 4as her parents9

*0 #s such, her parents and their neighbors are the one 4ho insisted that respondent should ta6e custody of the 2inor. :hey insisted that respondent too6 custody of the child 4hile the t4o re2aining children be in their o4n custody9

*+ Respondent agreed and even insisted to ta6e the t4o daughters Christine and Cathy Hae but the parents of the petitioner asserted that they be the one 4ho should ta6e care of the t4o daughters and further 2aintained that respondent 2ay freely contact petitioners parents and 2ay visit 4henever he 4anted9

* Petitioners clai2 that herein respondent 2aliciously too6 the child for a vacation 4as a spiteful lie as respondent 4as never able to

(6)

tal6 to the petitioner personally at that ti2e since the arrange2ent 4as bet4een respondent and petitioners parents alone. !he 4as not present on the day that respondent too6 custody of the child9

*3 Respondent 2aintains that he is 2ore capable to provide for the children9

* #s ad2itted by the respondent, since the 2inor child is already seven *5 years old, the child is 2ore than ready to go to school9

*/ Respondent on his part chose the best reputable school for the child to be enrolled in9

* :his is interestingly inconsistent to the clai2s of the petitioner that herein respondent never gave support to the children9

*5 !ince day one, even at the e=pense of the reputation of herein respondent, and even ho4 the situation 2ay have affected the personal relationship bet4een the respondent and his legal fa2ily, herein respondent never denied of his responsibility to the children9 *7 Respondent continued to fight for the children to be accepted

as his o4n9

*8 :his necessarily carries 4ith it the burden of perfor2ing the responsibilities of a father, 4hich respondent gladly too69

*30 !ince the birth of the children, respondent had al4ays tried and desired to foster an open and loving relationship bet4een the29

*3+ "ventually, his 4ife have accepted the children due to respondents insistence9

*3 It 4as even ad2itted by the petitioner that respondents 4ife have 2et the children personally, and had celebrated several occasions 4ith the2 as evidenced by the pictures supplied in the petition9

*33 "vidently, it is highly inconsistent of a clai2 that respondent never supported the children 4hen the truth of the fact - basing on

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the petitioners evidence and clai2s that she had supplied in her petition- proves that respondent certainly continues to give the children the necessary needs that they need, including education, security, food and clothing9

*3 It is not true that respondent 4ithheld fro2 the petitioner the custody of their child9

*3/ Respondent too6 the 2inor child in to his custody to protect the child fro2 his 2other 4ho consistently fails to provide for their childrens needs9

*3 Respondent intention 4as to relieve the petitioner fro2 her burden of as6ing financial support fro2 her relatives9

*35 :he respondent is 4illing to settle the case in court upon proper deter2ination 4hich of the t4o parents is 2ost suitable to have the custody over the 2inor child Christopher <9

*37 T'e (e)i)ion i* no) /alid a* )o i)* fo+-0 @e re2ind this )onourable Court of !ection  of #.H. &o. 03-0-0-!C other4ise 6no4n as the Proposed Rule %n Custody %f Hinors #nd @rit %f Habeas Corpus in Relation :o Custody %f Hinors, 4hich provides that provides that(

>!ection . Petton for custo!" of mnors# $ho ma" fle.- A /e+ified (e)i)ion fo+ )'e +ig')ful cu*)od. of a -ino+ -a. e filed . an. (e+*on clai-ing *uc' +ig')..G *"2phasis supplied

*38 @e have consistently held that the certification against foru2 shopping 2ust be signed by the principal parties9 

*0 @hile the Rules of Court 2ay be rela=ed for persuasive and 4eighty reasons to relieve a litigant fro2 an in1ustice co22ensurate 4ith his failure to co2ply 4ith the prescribed procedures, nevertheless they 2ust be faithfully follo4ed5₉

6 _{Development %an& of the Phlppnes v. Court of Appeals, ;.R. &o. +5+5, %ctober 5,} 00, 0 !CR# 00, citing Men!gorn v. Cabantog , ;.R. &o. +38, #ugust ,

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*+ In the instant case, if petitioner fails to sho4 any reason 4hich 1ustifies rela=ation of the Rules, petition shall 4arrant its dis2issal9 * :he courts have continuously held that procedural rules are not

to be belittled or dis2issed si2ply because their non-observance 2ay have pre1udiced a partys substantive rights. $i6e all rules, they are re?uired to be follo4ed e=cept for the 2ost persuasive of reasons 4hen they 2ay be rela=ed. &ot one of these persuasive reasons is present here.7

RELIEF

%HEREFORE, pre2ises seriously considered, it is prayed that the instant petition be I!HI!!" and custody of the child Christopher <. be a4arded to the respondent #;#PI:% #PI:.

Respondent li6e4ise pray for such other e?uitable and 1ust relief under these pre2ises.

Iligan City, /th day of Hay 0+5.

AHMAD U0 A;DULJALIL Counsel for the Respondent

Jntil ece2ber 0+8

P:R &o. +3/  0+-+/-+8  Iligan City IBP &o. /3+  0+-+3-+8  Iligan City

#ttorneys Roll &o. 578/ 00

HC$" Co2pliance &o. IA-000/5+ <une /, 0+3

7 _{'avarro v. Metropoltan %an& an! Trust Co.,} _{;.R. &o. +3703+, Hay 5, 00, 8} !CR# 38.

8 _{Meatmasters Internatonal Corporaton v. (els Integrate! Development Corporaton}_, ;.R. &o. +30, 'ebruary 7, 00/, / !CR# , citing (a)aro v. Court of Appeals, 330 !CR# 07 *000.

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Copy furnish(

ATT=0 M=RNA ILLERO MAHINA=

H#)I&#, H#)I&#, and H#)I&# $#@ %''IC" !uite K +00, /th_{'lr,"lena :o4er Bldg}

#ndres Bonifacio #venue, :ibanga Iligan City

%ffice of the Provincial Prosecutor )all of <ustice, Iligan City

&ERIFICATION AND CERTIFICATION R"PJB$IC %' :)" P)I$IPPI&"!

Iligan City...  !.!.

I, AGAPITO APIT, of legal age, 2arried and a resident of Iligan City, Philippines, after being s4orn in accordance 4ith la4, hereby depose and say(

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+. :hat I a2 the Respondent in the above-entitled case9

. :hat I have caused the preparation of the above #ns4er and I have read the sa2e and 6no4s the contents thereof9

3. :hat the allegations contained therein are true and correct of 2y o4n personal 6no4ledge.

. :hat I further certify that I have not theretofore co22enced any other action or proceeding or filed any clai2 involving the sa2e issues or 2atter in any court, tribunal, or ?uasi- 1udicial agency and, to the best of 2y 6no4ledge, no such

action or proceeding is pending therein9

/. If I should thereafter learn that the sa2e or si2ilar action or proceeding has been filed or is pending before the !upre2e Court, the Court of #ppeals, or any other tribunal or ?uasi- 1udicial agency, I underta6e to report such fact 4ithin five */ days therefro2 to the court or agency 4herein the original pleading and s4orn certification conte2plated herein have been filed.

I& @I:&"!! @)"R"%', I have hereunto set 2y hand this /th day of Hay 0+5 at Iligan City, Philippines.

.

AGAPITO APIT #ffiant

!JB!CRIB" #& !@%R& to before 2e this /th day of Hay 0+5 at Iligan City, Philippines.

ATT=0 NOTARIO PU;LICO &otary Public for Iligan

Jnit +, X Building, :ibanga, Iligan

#ppoint2ent &o. +3, Jntil ec. 3+, 0+ IBP &o. +3/9 0++0+0LIligan

P:R &o. +3/59 0++0+0LIligan Roll &o. +3/9 /0/0/

HC$" &o. I - 00+39 808+/ HC$" &o. II M 00/579 808+/ !erial &o. of Co22ission H-+3 oc. &o. +9

Page &o. +9 Boo6 &o. I9 !eries of 0+5