Factors to Consider when Choosing Surname of Illegitimate Child

Illegitimate children can now use their father’s surnames under certain conditions, particularly when the father acknowledges paternity either at the back of the child’s birth certificate (upon birth) or in a separate public document (after registration of the birth certificate). The decision to use the father’s surname, however, initially rests with the child’s parents and this choice can have legal consequences that can be helpful or disadvantageous, depending on the situation of the child’s parents. Thus, mothers are strongly advised to determine their goals in using the father’s surname and to anticipate their future needs before naming their child’s father in the birth certificate.

Some advantages in using the father’s surname

  • Support:  Filiation or being the alleged father’s child is an important requirement for claiming support. Acknowledgment in the birth certificate is the best way to prove filiation or paternity in court. While there are other ways of proving paternity in court, the father’s paternity acknowledgment or Affidavit allowing the illegitimate child to use his surname will save you additional time and expenses for proving their relationship through other means.
  • Future inheritance:  Also known as legitime in legal language, the right to inherit from the illegitimate father depends on the child’s relationship, as established through the paternity acknowledgment in the birth certificate or other means.
  • Stigma of illegitimacy:  Under the old rules before RA 9255, the illegitimate child automatically bears the mother’s surname but will not use a middle name. This immediately exposes the child’s illegitimate status in a society where illegitimate children are generally viewed as evidence of an extra marital indiscretion or pre-marital “accidents” (Fil: “disgrasya“).  Please note that allowing the illegitimate child to use the father’s surname DOES NOT make the child legitimate; however, it does reduce the stigma attached to illegitimate children who no longer have to explain why their last names are not consistent with their father’s.

Some challenges that can arise from letting an illegitimate child use the father’s surname:

  • Personal choice of the child:  The parents of an illegitimate child may end their relationship on a sour note and go their separate ways with so much ill feelings that can lead to the child’s desire not to bear the father’s surname.  Please note that while letting the child use the father’s surname is a simple administrative procedure at the civil registry where the birth certificate was recorded, changing the surname after using RA 9255 is not as quick and easy and requires a petition to be filed and heard in court.  The mother who files the petition for change of her child’s surname back to her own surname may not be assured of a favorable decision as the Supreme Court has a previous ruling that considers such a petition for change of surname to be premature if filed by the child’s mother.  In a petition for change of surname while the child is a minor, the court may let the child make that choice later when they are at least 18 years old.   So, in the meantime, the illegitimate child will have to bear the father’s surname whether he likes it or not.
  • Absentee father:  Some fathers manage to physically disappear from the lives of their illegitimate children and fail to provide child support, leaving their mothers with no choice but to find ways and means to make ends meet such as working abroad.  To avoid being separated, the mother may wish to have her illegitimate child migrate abroad and live with her. This move will require the child to apply for the appropriate visa and submit certain documents in support of the visa application. If the child’s birth certificate contains the illegitimate father’s name, immigration officers may require a court order as proof of the mother’s right of custody.   On the other hand, if the child’s birth certificate does not bear the father’s name (i.e. “unknown”), then it may be possible to refer the immigration officer’s attention to Article 176 of the Family Code which readily provides that the mother of an illegitimate child shall exercise sole parental authority.   The father’s consent is also necessary in adoption, a possible solution for mothers who are able to move on and marry men who are not the biological fathers of their children. This consent may not be necessary if the child’s birth certificate states “unknown” in the space provided for the father’s name.
  • Parental kidnapping: Bitter custody battles can lead to the extreme situation of parental kidnapping where the father who is likely unable to gain custody (as the mother is the preferred parent for children under 7 years old and for illegitimate children regardless of age) manages to take the child to another country without the mother’s consent.  It won’t be as easy for the father to do this if the child’s passport bears a different surname from the father’s.  The child may not be allowed to leave the country unless the father can show a DSWD travel clearance (which requires the written consent of the mother).  Of course, the best protection against the child’s unauthorized travel abroad is to secure the passport of the child under lock and key.
  • Proof of illicit (extra marital) relations: Paternity acknowledgment in the illegitimate child’s birth certificate may expose their parents to legal complications as the birth certificate may later be used as evidence of adulterous relationships, if one or both are still married to other persons at the time the child was conceived.

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