Family and Relationship – Page 2

A recent case went to the Supreme Court because the mother wants to change the surname of her illegitimate children to her own surname. Apparently, the father registered the birth of their two illegitimate children, born in 2008 and 2011, using his surname. The mother argued that given their children are illegitimate, the surname should be hers and not the father. Is it possible to change the surname of an illegitimate child which is already registered in the Civil Registry? The answer to the above question is yes. In this guide, I'll discuss the ways to change the surname of an illegitimate child from the surname of the mother to the surname of the father and vice versa. DISCLAIMER: This article has been written for general informational purposes only and is not legal advice or a substitute for legal counsel. You should contact your attorney to obtain advice with respect to any particular issue or problem. The use of the information contained herein does not create an attorney-client relationship between the author and the user/reader. Changing the Surname of an Illegitimate Child: Two Scenarios. 1. If the child is already registered under the surname of the mother and the child is acknowledged by the father. When is this applicable? This is applicable to children born on 19 March 2004 onwards and the child is acknowledged by the father. What is the process? The mother, if the child is 6 years old and below, shall execute an Affidavit to Use the Surname of the Father (AUSF) in 4 copies. Please note that if the child is between 7 to 17 years old, the child shall be the one to execute the AUSF with attestation from the mother. If he or she is already 18 years old, the person himself shall execute the AUSF without the mother’s attestation.The AUSF shall be submitted at the Office of the Civil Registrar of the city or municipality where the child was born.The original surname of the child as appearing in the birth certificate shall not be changed or corrected. However, in the Annotation/Remarks section of the Certificate of Live Birth (COLB), the following words shall be annotated: “The child shall be known as (Full Name of the Child) pursuant to RA 9255.”The full name of the child shall now be with the surname of the father and can use the surname of the father going forward. 2. If the child is already registered under the surname of the father and the mother wants to use her surname instead. When is this applicable? This is applicable in the following situation: Children born from 03 August 1988 (the effectivity of the Family Code) to 19 March 2004 (the effectivity of RA 9255 - the law allowing illegitimate children to use the surname of the father)Children born from 19 March 2004 onwards and NO Affidavit to Use the Surname of the Father (AUSF) was executed What is the process? File a petition in the Regional Trial Court requesting for the cancellation of the Certificate of Live Birth (COLB) of the child.If the court will grant your petition, the Civil Registrar, where the COLB of the child is registered, will be ordered to cancel the COLB bearing the father’s last name and a new one will be issued, this time, with the surname of the mother. Frequently Asked Questions. 1. I am an illegitimate child born in 1990. I am using my mother’s last name as it is what appears in my COLB. Can I use my father’s last name given I am an acknowledged illegitimate child? No. Given you were born in 1990, the applicable law in your case is the Family Code of the Philippines. Under Art. 176 of the Family Code, illegitimate children shall use the surname of the mother. In one case, the father filed a petition in court to compel the local civil registrar to register the COLB of his child using his surname. The child was born in 1989. The Civil Registrar, however, refused to register the COLB using the father’s surname as it is contrary to Art. 176 of the Family Code. In its decision, the Supreme Court ruled that the Civil Registrar is correct in refusing to register the COLB of the child using the father’s surname. Regardless of whether or not the child is acknowledged by the father or even if there is the consent of the father to use his surname, the child shall still use the surname of the mother by virtue of Art. 176 of the Family Code. 2. I have a daughter born in 2015. When I registered the birth of my child, I did not indicate the details of the father as we are not in good terms when we separated. Recently, the father signified his intent to acknowledge our child and wants her to use his surname. I want to agree with the use of the father’s last name for the interest of my child. What shall I do? A situation may occur where, at the time of registration, the child is not yet acknowledged by the father but later on the child is acknowledged. In this case, you should ask the father to execute an acknowledgment document (either in a separate public document or a Private Handwritten Instrument). On the other hand, you should execute the AUSF (because your child is below 7 years old) so that the child can use the surname of the father. The acknowledgment document can then be presented at the Office of the Civil Registrar of the city or municipality where your child was born for registration simultaneously with the presentation and registration of the AUSF. The annotation, in the Remarks/Annotation section of the COLB, shall be read as follows: “Acknowledged by (Name of the Father) on (date of execution of AAP or PHI) under Registry No. of the Affidavit of Admission of Paternity (or PHI). The child shall be known as (Full Name of the Child) pursuant to RA 9255.” Thereafter, the child can now use the surname of the father. 3. I am an 18-year-old illegitimate child using the surname of my mother. I want to use my father’s last name and learn about R.A. 9255. Can I do it? Is the application of the law retroactive? No. the application of RA 9255 is not retroactive. Rule 1 of the IRR of RA 9255 provides that it shall apply to all illegitimate children born during the effectivity of RA 9255, that is, children born on 19 March 2004 onwards. The applicable provision to your case is Sec 176 of the Family Code which provides that illegitimate children shall use the surname of the mother. 4. I read that the Civil Registrar can now change errors in the birth certificate without the need to go to court. Can I go to our Municipal Civil Registrar and request that the last name of my daughter be changed to the surname of his father? We are not married but he has acknowledged our daughter. RA No. 90481, the law that authorizes the city or municipal civil registrar and the consul general to correct clerical or typographical errors and/or change the name or nickname of a person in the civil registrar without the need of going to court and obtain a judicial order does not include change of the last name. Typographical errors, as defined by section 2 (3) of RA 10172 amending RA 9048 “refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, or status of the petitioner.” Therefore, the change of the last name by virtue of RA 9048 is not possible. However, by virtue of RA 9255 (the Revilla Law) and the child is not yet registered, you may be able to register the child using the surname of the father if an Affidavit to Use Surname of the Father (AUSF) is also executed along with the acknowledgment. 5. The illegitimate child has been using the mother's surname because the father was absent/didn't acknowledge the child upon birth. If the mother remarries, can the illegitimate child assume the surname of the mother's new husband? If so, how? No. The illegitimate child cannot assume the surname of the mother’s new husband by virtue of their marriage. The new husband has to formally adopt the child for the latter to use his surname. Once the child is adopted, the status is elevated to that of a legitimate child. As a consequence of adoption, the child may assume the surname of the adopter. 6. The illegitimate child was acknowledged by the father and has been using his last name. The relationship didn't work out and now the mother wants to change it to her surname. However, the child was born after March 19, 2004. Is the surname change still possible? Yes, the change of surname may still be possible provided No Authority to Use the Surname of the Father (AUSF) was executed, and the child specifically wants to use the mother’s surname. This may be done by filing a petition in Court for a change of surname. In the case of Grande vs. Antonio2, the Supreme Court ruled that the option to choose the surname of the child is not given to the mother or the father but the illegitimate child. In this particular case, the Supreme Court remanded the case to the Regional Trial Court, where the case was filed, and ordered the trial court to determine the surname to be chosen by the children subject of the case. Go back to the main article: An Ultimate Guide to an Illegitimate Child’s Rights, Birth Registration, and Legitimization References.