Dear PAO,

Julia and I lived together as husband and wife for three (3) years, and we have a non-marital child. Unfortunately, our relationship ended and now we have a dispute over child custody. During our confrontation, she claimed that custody belongs to her by law. She demanded that I surrender the kid to her or she will file a petition for habeas corpus against me. I told her that such remedy is available only to determine the legality of detention, so, in my belief, the same will not not apply to my situation because a father having physical custody of his child is not, in any way, a form of illegal detention. Am I correct?

Brembo

Dear Brembo,

In general, the legal remedy to question the legality of all forms of detention is through a petition for habeas corpus under Rule 102 of the Revised Rules of Court, as amended. However, the same also covers the question of rightful custody. This is in consonance with A.M. No. 03-04-04-SC dated 22 April 2003 entitled Re: Proposed Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors.

Pursuant to Section 1 of said rule:

“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.”

Correlative thereto, Section 2 thereof states that:

“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.”

To guide you further, please note of the pronouncement in Spouses Empuerto vs. Cabrillos, G. R. No. 268979, February 5, 2025, where the Supreme Court, through Honorable Justice Marvic M.V. F. Leonen, succinctly explained the rationale behind the filing of a petition for habeas corpus involving custody of minor:

“In general, the purpose of the writ of (habeas corpus) is to determine whether or not a particular person is legally held. A prime specification of an application for a writ of (habeas corpus), in fact, is an actual and effective, and not merely nominal or moral, illegal restrain of liberty. ‘The writ of (habeas corpus) was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. A prime specification of an application for a writ of (habeas corpus) is restrain of liberty. The essential object and purpose of the writ of (habeas corpus) is to inquire into all manner of involuntary restrain as distinguished from voluntary, and to relieve a person therefrom is such restrain is illegal. Any restrain which will preclude freedom of action is sufficient.

“Fundamentally, in order to justify the grant of the writ of (habeas corpus), the restrain of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action. This is the basic requisite under the first part of (Rule 102, Section 1) of the Revised Rules of Court, which provides that ‘except as otherwise expressly provide by law, the writ of (habeas corpus) shall extend to all case of illegal confinement or detention by which any person is deprived of (their) liberty.’

“In the second part of the same provision, however, (habeas corpus) may be resorted to in case 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 restrain is voluntary, we have held time and again that the said writ if the proper legal remedy to enable parents to regain custody of a minor even if the latter be in the custody of a third person of (their) own free will.

“It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint to liberty is not the underlying rationale for the availability of the writ as a remedy; rather, the writ of habeas corpus is prosecution for the purpose of determining the right of custody over a child.” (Emphasis ours)

Applying the above-quoted jurisprudence to your situation, you are partially correct in your belief that the petition for habeas corpus is a remedy to determine the legality of detention, however, please be reminded that the same is also an appropriate legal remedy to determine who has the rightful custody of a minor. The writ of habeas corpus is available in child custody cases, not for the purpose of determining the question of illegal restraint but for the purpose of determing rightful custody over a child.

We hope that we are able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

We appreciate your trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].