Republic
of
the Philippines
Supreme
Court
Manila
A.M. No.
02-11-12-SC
RE:
PROPOSED
RULE ON PROVISIONAL ORDERS
R E S O
L U T
I O N
Acting on the letter
of the Chairman of the Committee on Revision of the Rules of Court
submitting
for this Court’s consideration and approval the Proposed Rule on
Provisional
Orders, the Court Resolved to APPROVE the same.cralaw:red
The Rule shall take
effect on March 15, 2003 following its publication in a newspaper of
general
circulation not later than March 7, 2003.cralaw:red
March 4, 2003.cralaw:red
Davide, Jr., C.J.,
Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Sandoval-Gutierrez,
Carpio, Austria-Martinez, Carpio Morales, Callejo, Sr., and Azcuna, JJ.,
concur.
Ynares-Santiago,
J.,
on leave.
Corona, J.,
on
official leave.
RULE ON
PROVISIONAL
ORDERS
Section 1.
When Issued.- Upon receipt of a verified petition for declaration of
absolute
nullity of void marriage or for annulment of voidable marriage, or for
legal separation, and at any time during the proceeding, the court,
motu
proprio or upon application under oath of any of the parties, guardian
or designated custodian, may issue provisional orders and protection
orders
with or without a hearing. These orders may be enforced immediately,
with
or without a bond, and for such period and under such terms and
conditions
as the court may deem necessary.chan
robles virtual law library
Sec. 2. Spousal
Support. - In determining support for the spouses, the court may be
guided
by the following rules:chanroblesvirtuallawlibrary
(a) In the
absence of adequate provisions in a written agreement between the
spouses,
the spouses may be supported from the properties of the absolute
community
or the conjugal partnership.chan
robles virtual law library
(b) The court
may award support to either spouse in such amount and for such period
of
time as the court may deem just and reasonable based on their standard
of living during the marriage.chan
robles virtual law library
(c) The court
may likewise consider the following factors: (1) whether the spouse
seeking
support is the custodian of a child whose circumstances make it
appropriate
for that spouse not to seek outside employment; (2) the time necessary
to acquire sufficient education and training to enable the spouse
seeking
support to find appropriate employment, and that spouse’s future
earning
capacity; (3) the duration of the marriage; (4) the comparative
financial
resources of the spouses, including their comparative earning abilities
in the labor market; (5) the needs and obligations of each spouse; (6)
the contribution of each spouse to the marriage, including services
rendered
in home-making, child care, education, and career building of the other
spouse; (7) the age and health of the spouses; (8) the physical and
emotional
conditions of the spouses; (9) the ability of the supporting spouse to
give support, taking into account that spouse’s earning capacity,
earned
and unearned income, assets, and standard of living; and (10) any other
factor the court may deem just and equitable.chan
robles virtual law library
(d) The Family
Court may direct the deduction of the provisional support from the
salary
of the spouse.cralaw:red
Sec. 3. Child
Support. - The common children of the spouses shall be supported from
the
properties of the absolute community or the conjugal partnership.cralaw:red
Subject to the sound
discretion of the court, either parent or both may be ordered to give
an
amount necessary for the support, maintenance, and education of the
child.
It shall be in proportion to the resources or means of the giver and to
the necessities of the recipient.chan
robles virtual law library
In determining the
amount of provisional support, the court may likewise consider the
following
factors: (1) the financial resources of the custodial and non-custodial
parent and those of the child; (2) the physical and emotional health of
the child and his or her special needs and aptitudes; (3) the standard
of living the child has been accustomed to; (4) the non-monetary
contributions
that the parents will make toward the care and well-being of the child,
The Family Court
may direct the deduction of the provisional support from the salary of
the parent.cralaw:red
Sec. 4. Child
Custody. - In determining the right party or person to whom the custody
of the child of the parties may be awarded pending the petition, the
court
shall consider the best interests of the child and shall give paramount
consideration to the material and moral welfare of the child,chan
robles virtual law library
The court may likewise
consider the following factors: (a) the agreement of the parties; (b)
the
desire and ability of each parent to foster an open.’ and loving
relationship
between the child and the, other parent; (c) the child’s health,
safety,
and welfare; (d) any history of child or spousal abuse by the person
seeking
custody or who has had any filial relationship with the child,
including
anyone courting the parent; (e) the nature and frequency of contact
with
both parents; (f) habitual use of alcohol or regulated substances; (g)
marital misconduct; (h) the most suitable physical, emotional,
spiritual,
psychological and educational environment; and (i) the preference of
the
child, if over seven years of age and of sufficient discernment, unless
the parent chosen is unfit.chan
robles virtual law library
The court may award
provisional custody in the following order of preference: (1) to both
parents
jointly; (2) to either parent taking into account all relevant
considerations
under the foregoing paragraph, especially the choice of the child over
seven years of age, unless the parent chosen is unfit; (3) to the
surviving
grandparent, or if there are several of them, to the grandparent chosen
by the child over seven years of age and of sufficient discernment,
unless
the grandparent is unfit or disqualified; (4) to the eldest brother or
sister over twenty-one years of age, unless he or she is unfit or
disqualified;
(5) to the child’s actual custodian over twenty-one years of age,
unless
unfit or disqualified; or (6) to any other person deemed by the court
suitable
to provide proper care and guidance for the child.cralaw:red
The custodian temporarily
designated by the court shall give the court and the parents five days
notice of any plan to change the residence of the child or take him out
of his residence for more than three days provided it does not
prejudice
the visitation rights of the parents.chan
robles virtual law library
Sec. 5. Visitation
Rights. - Appropriate visitation rights shall be provided to the parent
who is not awarded provisional custody unless found unfit or
disqualified
by the court.cralaw:red
Sec. 6. Hold
Departure Order. - Pending resolution of the petition, no child of the
parties shall be brought out of the country without prior order from
the
court,chan robles virtual
law
library
The court, motu proprio
or upon application under oath, may issue ex-parte a hold departure
order,
addressed to the Bureau of Immigration and Deportation, directing it
not
to allow the departure of the child from the Philippines without the
permission
of the court.chan robles
virtual
law library
The Family Court
issuing the hold departure order shall furnish the Department of
Foreign
Affairs and the Bureau of Immigration and Deportation of the Department
of Justice a copy of the hold departure order issued within twenty-four
hours from the time of its issuance and through the fastest available
means
of transmittal.cralaw:red
The hold-departure
order shall contain the following information:chan
robles virtual law library
(a) the complete
name (including the middle name), the date and place of birth, and the
place of last residence of the person against whom a hold-departure
order
has been issued or whose departure from the country has been enjoined;
(b) the
complete title and docket number of the case in which the hold
departure
was issued;
(c) the
specific nature of the case; and cralaw:red
(d) the
date of the hold-departure order,
If available, a recent
photograph of the person against whom a hold-departure order has been
issued
or whose departure from the country has been enjoined should also be
included,
The court may recall
the order, motu proprio or upon verified motion of any of the parties
after
summary hearing, subject to such terms and conditions as may be
necessary
for the best interests of the child.chan
robles virtual law library
Sec. 7. Order
of Protection. - The court may issue an Order of Protection requiring
any
person:chanroblesvirtuallawlibrary
(a) to stay
away from the home, school, business, or place of employment of the
child,
other parent or any other party, and to stay away from any other
specific
place designated by the court;chan
robles virtual law library
(b) to refrain
from harassing, intimidating, or threatening such child or the other
parent
or any person to whom custody of the child is awarded;chan
robles virtual law library
(c) to refrain
from acts of commission or omission that create an unreasonable risk to
the. health, safety, or welfare of the child;
(d) to permit
a parent, or a person entitled to visitation by a court order or a
separation
agreement, to visit the child at stated periods;
(e) to permit
a designated party to enter the residence during a specified period of
time in order to take personal belongings not contested in a proceeding
pending with the Family Court;
(f) to comply
with such other orders as are necessary for the protection of the child.cralaw:red
Sec. 8. Administration
of Common Property. - If a spouse without just cause abandons the other
or fails to comply with his or her obligations to the family, the court
may, upon application of the aggrieved party under oath, issue a
provisional
order appointing the applicant or a third person as receiver or sole
administrator
of the common property subject to such precautionary conditions it may
impose.chan robles virtual
law
library
The receiver or administrator
may not dispose of or encumber any common property or specific separate
property of either spouse without prior authority of the court.chan
robles virtual law library
The provisional order
issued by the court shall be registered in the proper Register of Deeds
and annotated in all titles of properties subject of the receivership
or
administration.chan robles
virtual
law library
Sec. 9. Effectivity.
- This Rule shall take effect on March 15, 2003 following its
publication
in a newspaper of general circulation not later than March 7, 2003.chan
robles virtual law library
chan
robles virtual law library
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