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Joe Pallugna

TIME and again the use of surnames of illegitimate children have come up as an issue. Confusion results when the father insists that his surname be used and the mother of the child refuses.

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Take the case Grace and Patricio who carried an illicit relationship as Patricio is married. They produced two children, Andre and Jerard. Later on, the parents separated and Grace brought the two children to the United States.

Later, Patricio filed with the Regional Trial Court a petition for Judicial Approval of Recognition With Prayer to take Parental Authority, Parental Custody and Correction/Change of Surname. The RTC granted Patricio’s petition and ordered the city civil registrar to correct/change the surname of the children from Grande to  Antonio.

Aggrieved by the decision, Grace appealed to the Court of Appeals which affirmed the change of surname but modified the decision by granting only visitorial rights to Patricio instead of parental custody. Thus, she elevated her case to the Supreme Court.

The High Tribunal ruled that Art. 176 of RA 9255 clearly provides that “illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by their father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, that the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of a legitime of a legitimate child.”

Thus, it is then very clear that, as a general rule, an illegitimate child shall use the surname of his mother. The exceptions are those stated earlier. Article 176 then gives the illegitimate child the right to decide whether or not to use the surname of his father. It is not the father or the mother who is granted by law the right to dictate the surname of their illegitimate children.

In fact, as jurisprudence would show, there are instances wherein the legitimate child was allowed to use the surname of her mother rather than the surname of her father as it would serve her best interest and there is no law that prevents her from using her mother’s surname (Alfon vs. Republic). And in one case (Calderon vs. Republic), upholding the best interest of the child concerned, the Supreme Court even allowed the use of the surname different from the surnames of the child’s father or mother.

Again, as in the other cases I cited in the past columns, it is the best interest of the child that should be paramount.  Truly, the rule regarding the use of a child’s surname is second only to the rule requiring that the child be placed in the best possible situation considering his circumstance, says the Supreme Court. This is clearly ruled in Grace Grande vs. Patricio Antonio (G.R. No. 206248, Feb. 18, 2014). 

So, to all the fathers out there, be aware of this rule. Don’t insist if the child demands that he uses a surname different from yours. After all, he may not really be your son.

E-mail: ajpallugna@gmail.com

 

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