An agreement cannot constitute a provisional order for custody (2)

“The 5 May 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’ 19 July 2023 Resolution, the respondent’s petition for the issuance of a writ of habeas corpus was filed for the purpose of obtaining custody of C, 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 the 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 the respondent before the trial court, contrary to Section 13 of the said Rule. It appears that upon return of the writ on 5 May 2021, respondent and petitioner A 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 5 May 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. In Lacson v. San Jose-Lacson, the Court remanded the case to the trial court to determine the issue of custody after the presentation of evidence, since it found that the trial court resolved the issue based merely on the spouses’ amicable settlement.

“Furthermore, without a trial for the reception of evidence, the court cannot properly evaluate to whom the child’s rightful custody belongs, after considering the child’s best interest. In Laxamana v. Laxamana, this Court held that the trial court should have conducted a trial to determine the fitness of both petitioner and respondent to assume custody of their minor children, considering the children’s paramount interest. In Bagtas v. Judge Santos, this Court faulted the trial court for hastily dismissing the petition for habeas corpus and awarding custody of the minor to the grandparents without conducting a trial.

“Thus, the Court remanded the case to the trial court for the reception of evidence to determine the fitness of the respondents to have custody of the child. Similarly, the Court remands this case to the trial court to determine the rightful custody of C, considering its failure to conduct a 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.”

The facts and redacted portions of the decision are from SC G.R. No. 268979 (5 February 2025). Names of the parties are likewise redacted.