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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

AT A GLANCE:

“Best interest” demands that a proper trial be conducted to determine who should have the rightful custody over a child. In the meantime, and until appropriately and finally adjudged, custody over Yuno pendente lite shall remain with his actual custodian, the petitioners.

On February 26, 2013, Sheena Olpoc Cabrillos (Sheena) gave birth to Yuno Hanzo Cabrillos Empuerto (Yuno). Jeffrey Rosacay Empuerto (Jeffrey) acknowledged being Yuno’s father. He and Sheena lived in Davao City with his parents, spouses Leonido and Rosalyn Empuerto (Spouses Empuerto). Sometime in 2017, Sheena broke up with Jeffrey and left with Yuno to live with her parents in Cotabato City, where she enrolled Yuno to a local elementary school. Despite the distance, Jeffrey constantly communicated with Yuno and regularly had Yuno stay with him in Davao City for holidays and vacations.

On March 13, 2020, Jeffrey brought Yuno back to Davao City for his summer vacation. Yuno’ s stay was extended due to the COVID-19 lockdown. Sheena asked Jeffrey to bring Yuno back to her after the lockdown, but her plea was ignored. On July 6, 2020, Sheena went to Davao City to fetch Yuno, but Jeffrey and Spouses Empuerto (collectively, the Empuertos) refused to hand over the child

Thereafter, Sheena filed a petition for the issuance of a writ of habeas corpus.

On May 3, 2021, the Regional Trial Court (RTC) of Davao City issued a writ of habeas corpus requiring the Empuertos to appear and bring Yuno to court on May 5, 2021. During the conference, Jeffrey and Sheena agreed on certain terms for Yuno’s custody, which were incorporated in the May 5, 2021 RTC Order.

The RTC denied the motion for reconsideration of the Empuertos and declared the case closed and terminated on the ground that the issue of custody had been resolved through a compromise agreement.

Subsequently, the Empuertos filed an Urgent Verified Motion for Preliminary Restraints before the Court of Appeals, which denied the prayer for preliminary injunction citing the Empuertos’ failure to establish their clear, unmistakable right of custody over Yuno and the material invasion of this right.

On appeal, the Court of Appeals partly granted the appeal, deemed the May 5, 2021 Order as merely a provisional order awarding custody, and directed the trial court to proceed with a full-blown trial.

Hence, the Empuertos filed the present Petition. They claim that custody does not automatically vest on Sheena just because Yuno is an illegitimate child. They argue that being Yuno’s biological father and actual custodian, Jeffrey has a clear and unmistakable right to the child’s custody. Considering that Sheena previously exposed Yuno to violence, the Empuertos also pray for the issuance of a temporary restraining order pending the appeal, to prevent trauma and similar disturbing actions which may impede the development of or negatively affect Yuno.

The issue in this case is whether the Court of Appeals erred in deeming provisional and directing the implementation of the compromise agreement between Sheena and Jeffrey, while awaiting judgement after a full-blown trial.

The Supreme Court granted the petition. 

A person having rightful custody over a minor, but allegedly being deprived thereof, may file a verified petition for a writ of habeas corpus before the Family Court.58 The Family Court shall then decide the issue on custody of minors upon the return of the writ of habeas corpus. This is because a petition for habeas corpus is essentially prosecuted to determine who has rightful custody over the child, and not merely to produce the child before the court.

The Family Court may then issue a provisional order awarding custody after an answer has been filed or after expiration of the period to file it, and can render judgment awarding custody of the minor to the proper party after trial.

The Court held that the Court of Appeals acted contrary to existing rules and jurisprudence when it deemed the compromise agreement as a provisional order awarding custody and directed its immediate implementation. 

The May 5, 2021 Order of the trial court failed to comply with Section 13 of the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Contrary to the Court of Appeals’ July 19, 2023 Resolution, respondent’s petition for the issuance of a writ of Habeas corpus was filed for the purpose of obtaining custody of Yuno, and thus the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors specifically applies.

Section 13 of the said Rule states that a provisional order awarding custody will only be issued after an answer has been filed or after expiration of the period for filing it. This has been reiterated in Recto v. Judge Trocino, where the Court held that a court is not authorized to issue a provisional order awarding custody of a minor child until after an answer to the petition has been filed or when the period to file the same has expired and no such answer was filed in court.

Here, petitioners were not duly served with summons and were unable to file their answer to the petition filed by respondent before the trial court, contrary to Section 13 of the said Rule. It appears that upon return of the writ on May 5, 2021, respondent and petitioner Jeffrey entered into a compromise agreement and the trial court already terminated the special proceedings. As petitioners never had the chance to file their answer to respondent’s petition, the Court of Appeals erred in deeming the compromise terms in the May 5, 2021 Order to be a full-fledged provisional order awarding custody.

Moreover, a compromise agreement between parents as to a child’s custody is frowned upon by the Court. Furthermore, without trial for reception of evidence, the court cannot properly evaluate whom the child’s rightful custody belongs to, after considering the child’s best interest.

Similarly, the Court remands this case to the trial court to determine the rightful custody of Yuno, considering its failure to conduct trial for reception of evidence. It will likewise be the proper forum to determine the mother’s fitness to take custody of the child—an issue petitioners also raise—as it is a question of fact to be properly entertained in the special proceedings before the trial court. It is not within the province of a petition for review on certiorari under Rule 45 of the Rules of Court to weigh evidence and rule on questions of fact.

To emphasize, the trial court must carefully consider the totality of the circumstances and grant rightful custody over a child upon concurrence of the following requisites: (1) the petitioner has the right of custody over the minor; (2) the rightful custody of the minor is being withheld from the petitioner by the respondents; and (3) it is in the best interest of the minor concerned to be in the custody of petitioner and not that of the respondent.

Here, the trial court failed to rule upon the presence or absence of these requisites, and merely granted custody based on the compromise agreement of the parents in its May 5, 2021 Order. The Court of Appeals thereafter incorrectly directed the May 5, 2021 Order’s implementation as a provisional order awarding custody.

“Best interest” demands that a proper trial be conducted to determine who should have the rightful custody over a child. In the meantime, and until appropriately and finally adjudged, custody over Yuno pendente lite shall remain with his actual custodian, the petitioners.

Source: JEFFREY ROSACAY EMPUERTO and LEONIDO AND ROSALYN EMPUERTO (G.R. No. 268979, February 5, 2025)

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