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Can the Father Compel An Illegitimate Child to Use His Surname?

Republic Act 9255 allowing illegitimate children to use their father’s surnames opened the door to illegitimate mothers and fathers eager to let their children bear the father’s surname just like legitimate children. While many saw this as a positive development for illegitimate children long stigmatized for bearing their mother’s surnames and not having middle names, some mothers soon realized the disadvantages of this law.

The problem started when the implementing rules of RA 9255 made it mandatory for illegitimate children to use their father’s surnames upon the execution and registration of the Affidavit Allowing Children to Use the Surname of their Fathers (AUSF)  and the paternity acknowledgment appearing on the back portion of the birth certificate. Mothers and children complained that it was a simple and inexpensive procedure for the fathers, many who disappeared later in the lives of their children, to execute the paternity acknowledgment and voila! the father’s surname becomes the child’s surname. The civil registrars nationwide maintained that it was their duty to register the father’s surname upon seeing the paternity acknowledgment because RA 9255’s implementing rules used the word ‘shall’ instead of ‘may’ in giving effect to the law allowing children to use their father’s surnames.

Today, that conflict has been resolved with the high court’s pronouncement that it was voiding that particular provision in RA 9255’s implementing rules insofar as it provides for the mandatory use of the illegitimate father’s surname. The Supreme Court reiterates that the illegitimate child has the choice of surname by which they wish to be known. (Grande vs. Antonio, GR No. 206248, February 18, 2014)

About the Kasambahay Law

“Kasambahay” or household employee refers to persons who render services at home and are compensated for their services. They are your:

  • yaya
  • cook
  • gardener
  • houseboy
  • laundry person or labandera
  • general househelp

or any other person who regularly performs domestic work in your home. “Family drivers” and other persons who perform work occasionally and not on a regular basis at home are NOT considered “kasambahay” for purposes of the Kasambahay Law.

Employment contract: This law seeks to standardize employment terms of employment by requiring the employer to issue an employment contract to the Kasambahay and to provide the office of the punong barangay a copy of the contract– employers are required to make 3 copies.  The terms and conditions must follow the form of the Employment Contract that the Department of Labor prescribed. You can find the standard format at the DOLE site or click HERE for a free copy.

Payment of certain benefits: In addition to the kasambahay’s monthly salary, the employer is also required to pay the kasambahay’s contribution in SSS, Pag-ibig fund and PhilHealth (if the kasambahay’s monthly salary does not exceed Php 5,000.) The kasambahay is also entitled to 13th month pay and service incentive leave of 5 days.

Other features of the kasambahay law include:

The law (RA 10361) and its implementing rules contain other important provisions that every household employer must know in order to avoid legal labor problems.    If you’re interested in knowing more about the Kasambahay Law and what your rights and obligations are as an employer, you may want to check out the latest book “Batas Kasambahay” written by lawyer, author and Philippine labor law speaker Atty. Elvin Villanueva.  Available at National Book Store outlets and Fully Booked Stores.Batas Kasambahay_Villanueva Final

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.

Infidelity is not always Psychological Incapacity

The current trend in cases decided by the Supreme Court seems to uphold the validity of rocky (even dead) marriages as a recent case decided by the High Court prevented the dissolution of a marriage on the most common ground– psychological incapacity.

In this case, a married couple went their separate ways for more than 5 years, and the husband even lived with a third party and bore 3 children with her.   After the long separation, the husband decided to legally end his first marriage and filed a petition for declaration of nullity (“annulment” to laymen) in court.

The petitioner (husband) went through the usual procedures of proving his wife’s psychological incapacity by:

  • presenting a psychologist and an expert (priest) in canon law
  • alleging that he caught his wife in a hotel room with another man
  • alleging that she played mahjhong all the time and neglected her children
  • went out at night frequently and dated other men
The wife refuted all these allegations saying that she played mahjhong only 3 times a week and always with the husband’s consent, that she was never caught in plain view half naked in a hotel room with another man, and that she took care of all her children. After battling it out in the lower court and Court of Appeals, the parties presented their case to the Supreme Court which upheld the validity of the marriage.  It viewed the acrimony and infidelity of the spouses as circumstances which may have prevented them from keeping their marriage– possible grounds for legal separation, but not necessarily constitutive of psychological incapacity to nullify the marriage.   (The case of Valerio Kalaw vs. Ma. Elena Fernandez, G.R. No. 166357, Sept. 19. 2011)
Personal note:  After having been separated from her husband for so many years, and with full knowledge that he already lives with another woman and 3 children, what could possibly be the reason for the wife’s opposition to the declaration of nullity on ground of psychological incapacity? Pride can be self-defeating.

Instructional Video on How to File A Small Claim in the Philippines

Anyone who has a claim against another  in a total amount not exceeding Php100,000 can file a claim easily and inexpensively in the Small Claims Court in the Philippines.

You won’t need a lawyer to represent you in the hearing and the filing fee is minimal.   The Clerk of Court will guide you in filling up the small claims form and hearing lasts only a day.Watch this video and learn how to do this. You must have people or friends owing you sums of money as friendly loans and who may conveniently just forgot about them.

Times are hard and every single centavo counts when you are talking about surviving day-to-day costs of living.    Consider filing a small claim against the person who has not paid you back.

Don’t lose hope!      Watch this video  and learn.

Vodpod videos no longer available.

New Book and Ebook on Employee Transfer and Demotion (Philippines)

Now available! A Guide book on How to Demote Employees Legally in the Philippines. This book is now available at your favorite bookstores and online at ManilaBookSales.com as an ebook, perfect for your IPAD, tablet, Kindle and other handheld ebook reader. Contact inquiries@demotionsphilippines.com for electronic and hard copies.

Ebooks on Night Shift and Overtime Pay and Leave Benefits

Title:    All you need to know about… Employee Leave Benefits Leave Benefits Ebook

 Synopsis:     “Leave Benefits” refer to absences an employee is allowed to take for various reasons, authorized by law.  It is called a benefit because ordinarily, an employee who avails of a leave benefit is entitled to go on leave and still get paid while on a time off.  Otherwise, all other absences may not be paid by the employer under the “No Work, No Pay” policy of labor laws.

The new book on leave benefits by Atty. Elvin B. Villanueva is a compact yet complete guide on Leave Benefits and is available in ebook form, which makes it even easier to read. 

With an ebook, you save time when looking for what you need and get the exact legal provisions because everything that you need to know has been sifted, lifted and packaged in this electronic pocket guide. This book is also ideal for people on the go. 

 Author Atty. Elvin Villanueva discusses the topic complete with the latest laws and rules and cites actual cases decided by the Supreme Court,  in a language easily understood by the ordinary reader.   

Ebook Topics:  

  • Service Incentive Leave,
  • Maternity,
  • Paternal,
  • Gynecological leave,
  • VAWC leave and other employee leave benefits required by law. 

 Price:  Php397.00 per eBook, ordered and  delivered online. Click here to order your copy.

Author:  Atty. Elvin Villanueva, LVS Publishing

Also available, Ebook on Night Shift and Overtime Pay. Click here to order your copy.