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)

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.

Traveling with Minors

Semestral or summer school breaks are great opportunities for children to travel abroad.

When traveling with minors, the key to a stress-free journey is advanced preparation. Here are some things to remember:

1.  For travels abroad, as a rule of thumb, a child will need a valid passport with at least 6 months left in its expiry period.

2.  Always check passports for expiry dates and apply for a renewal passport at the soonest time.  The Department of Foreign Affairs is reportedly experiencing some delays in the release of passports with RUSH applications reaching several weeks!

3.  A minor (below 18 years old) Filipino who is not traveling with any of his/her parents must have a travel clearance obtained from the DSWD.  Click on this link to learn more about the Travel Clearance and who needs it. 

4.  Parents with pending child custody cases should first obtain a favorable order from the court regarding any foreign travel to avoid being stopped at the airport (port of exit). Some immigration officers don’t bother to check the authority of parents to bring their children out of the country, but others still do.

5.  It can be especially stressful to lose a passport when one is abroad. Always keep photocopies of all the pages of a child’s passport to facilitate applications for new ones in case of loss or renewal.

6.  Teach children not to accept packages from anyone (friends and relatives included) to be carried or packed in any of their belongings.  Prohibited or illegal objects found in their possession during routine airport checks may subject them to penalties simply by having them in their luggage, bags or pockets.

7.  Make sure that your child carries a maximum of Php 10,000 (pesos).  If more, then you may have to secure prior approval to do so from the Bangko Sentral.  I suggest giving your child travelers checks which are typically denominated in US dollars or wherever possible, letting your child carry a supplement credit card that is internationally acceptable to finance his or her needs abroad.

Letting Illegitimate Child Use Father’s Surname- RA 9255

Children born out of wedlock, also known as illegitimate children, may use the surname of the father under Republic Act No. 9255.

All you need is to file the necessary application with the civil registry of the place where your child was born along with the following documents:

1. Certified true copy of child’s birth certificate (most require NSO certificates)
2. Affidavit to Use the Surname of the Father (see attached form)
3. Valid IDs of parents or the registrant if 18 years or older.
4. For certificates of live birth with unknown fathers, submit additional documents such as the affidavit of acknowledgment/paternity and documents showing father’s signature like SSS, GSIS Policy Contract, ITR, PhilHealth and other proof of filiation.
5. Note: In some cities/municipalities, the local civil registrar may require the personal appearance of the mother and father to confirm their identities.

Processing time can vary but will usually take a week.  Estimated cost Php1,000.00.

Can Father of Illegitimate Child Obtain Custody when Mother is Abroad?

An illegitimate child is one who is born of parents who were not legally married to one another at the time of the child’s birth, and who remain unmarried to one another.

By law and jurisprudence, the mother of an illegitimate child has sole parental authority and is entitled to keep the child in her company.  This rule continues to apply even when the father of the child acknowledges filiation (paternity), although the court may order the father to provide support as a result of the acknowledgment, but not custody.

In one case (Briones vs. Miguel, GR 156343, Oct. 18, 2004), the Supreme Court upheld the illegitimate child’s mother’s custody even when the mother was working in Japan and eventually brought the child out of the country to live with her there.

True, there are exceptions to this rule but only when there are compelling reasons to deprive the mother of custody.  Examples are neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease.

Merely working abroad while entrusting the child to the care of the maternal grandparents or other immediate family member does not seem to be one of the grounds for taking away custody from the mother.  It cannot be considered as abandonment or neglect as well.

Parental Leave for Solo Parents (RA 8972)

Single parents may be alone in raising their children, but Philippine Labor law provides some relief for them in the Parental Leave for Solo Parents Act.

“Parental leave” under this law refers to leave benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities where physical presence is required.

Who may avail of this benefit:

Any solo parent or individual who is left alone with the responsibility of parenthood due to:

1.  Giving birth as a result of rape or, as used by the law, other

crimes against chastity;

2.  Death of spouse;

3.  Spouse is detained or is serving sentence for a criminal

conviction for at least one (1) year;

4.  Physical and/or mental incapacity of spouse as certified by a

public medical practitioner;

5.  Legal separation or de facto separation from spouse for at least one (1) year: Provided that he/she is entrusted with the custody of the children;

6.  Declaration of nullity or annulment of marriage as decreed by a court or by a church: Provided, that he/she is entrusted with the custody of the children;

7.  Abandonment of spouse for at least one (1) year;

8.  Unmarried father/mother who has preferred to keep and rear his/her child/children, instead of having others care for them or give them up to a welfare institution;

9.  Any other person who solely provides parental care and support to a child or children: Provided, that he/she is duly licensed as a foster parent by the Department of Social Welfare and Development (DSWD) or duly appointed legal guardian by the court; and

10.  Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance, or prolonged absence of the parents or solo parent: Provided, that such abandonment, disappearance, or prolonged absence lasts for at least one (1) year.

 

The Parental Leave Benefit:  The parental leave is an additional benefit which  shall be for seven (7) working days every year, with full pay, consisting of basic salary and mandatory allowances. 

 

Conditions for Entitlement

 

A solo parent employee shall be entitled to the parental leave under the following conditions: 

 

1.   He/she has rendered at least one (1) year of service, whether continuous or broken;

2.   He/she has notified his/her employer that he/she will avail himself/herself of it, within a reasonable period of time; and

3.   He/she has presented to his/her employer a Solo Parent Identification Card, which may be obtained from the DSWD office of the city or municipality where he/she resides.

 

Other important notes:

•  This benefit is not convertible to cash if not availed of by the employee.
•  Emergency or contingency leave provided under a company policy or a collective bargaining agreement shall not be credited as compliance with the parental leave provided for under RA 8972.
• A change in the status or circumstance of the parent claiming the benefit under the law, such that he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility for this benefit.

 

Making Child Visitation Easier for Your Children

focus on being a parent to your children. 

While it’s normal to have negative feelings about your ex, you’ll have to resolve those issues privately, and not around your children.  Your goal should be to create a more peaceful life for them after the legal battle is over.  With a little practice and effort, you can help your children cope with the new living arrangement:

• If you have nothing good to say about your ex, don’t say it.  Try to speak about your ex in positive terms when you are around your children.  If that’s not yet possible, then make it clear to your children that your issues are between you and your ex, and do not involve them.
• Avoid heated arguments with your ex when your children are around. 
• Do not use the children as couriers for information you should be discussing directly with your ex. Communicate by email or phone with your ex about matters pertaining to your children such as the monthly support and pick up times. 
• Don’t use your children to gain personal information about your ex. 
• Establish a regular routine as well as house and safety rules in your own home to bring some stability in the lives of your children.
• Resist the urge to react negatively when your children rave about the other parent or about the things they do in the other home.   
• Do not promote anger or hatred for the other parent, even if the separation was the other parent’s own doing.  Anger can prevent a child from maintaining a close personal relationship with the other parent.   
• Reassure your children of your love, care and attention regardless of the situation.  Avoid using the threat of abandonment (even if it is an empty one) to instill discipline upon difficult children.  It is common for separated parents to see their children act out their emotional confusion and distress by being problematic or undisciplined. 
• Be careful about misleading children into thinking that reconciliation between their parents is a possibility.  Some children find it difficult to adjust to the separation of their parents when they cling to the illusion that their parents will be back in each other’s arms someday.
• Develop your own ways of displaying affection towards your children.  A hug or a pat on the back can bolster the verbal assurances you give your children. 
• Acknowledge your children’s feelings for the other parent.  Allow them to express their emotions by crying and talking things over with you. 
• Take time out to relax with your children.  Playing with your children also helps them heal from the psychic wounds inflicted by the separation. 

Proof of Relationship In Cases of Illegitimate Child Support

Generally, an illegitimate child is entitled to support but the law requires proof of filiation or relationship between the child and the supposed father.

The Supreme Court, in a line of cases, considered the following as acceptable proof of filiation:

• voluntary recognition by the father in the birth certificate, will, or a statement before a court of record
• an admission of filiation in a public instrument or a private handwritten instrument(document) AND signed by the parent concerned
• a notarized agreement to support a child in which the father admitted his relationship to the child
• letters to the mother vowing to be a good father to the child AND pictures of the father cuddling the child on various occasions, TOGETHER with the certificate of live birth.

So far, it seems that in the Philippines, only the University of the Philippines National Science Research Institute (UP-NSRI) DNA Analysis Laboratory has the capability to conduct DNA typing using short tandem repeat (STR) analysis.

Hold Departure Order in Custody Cases

The prevailing rule is that a minor child should not be brought out of the country while the petition for custody is pending.

Temporary permission to take the child out is possible but the parent seeking to travel with the child abroad must first obtain the court’s consent.

Depending on the circumstances of the case, the court may on its own, or after an application by one of the parents, issue a hold departure order addressed to the Bureau of Immigration and Deportation, directing it to bar the departure of the minor without the permission of the court.

While the prohibition against taking the minor child out of the country already applies from the moment a petition for custody is filed in court, it is still necessary to obtain a Hold Departure Order and provide the immigration authorities a copy of it to effectively prevent any attempts to take the child out of the country.

Conversely, assuming there is a valid Hold Departure Order and the court subsequently allows the child to travel abroad temporarily, the parent accompanying the child will have to ensure that the immigration authorities are given a copy of the later order which clearly allows the child to leave.

The Philippines and The Hague Convention on Child Abduction

In October 1980, the Hague Conference on Private International Law unanimously adopted the Hague Convention on the Civil Aspects of International Child Abduction, which was signed by a number of countries including the United States. 

The goal of this multilateral treaty is to secure the prompt return of children wrongfully removed from or retained in any country which is a party to the Convention. The countries that are parties to the Convention have agreed that, subject to certain limited exceptions and conditions, a child who is removed from or retained in one of the signatory countries shall be promptly returned to the other member country where the child habitually resided before the abduction or wrongful retention. 

The Hague Convention is a return mechanism that does not resolve custody issues or any additional disputes concerning the child’s status.  It merely provides a remedy for one parent to obtain the quick return of a child to his or her habitual country, where custody and other disputed issues may be resolved.

At present, this Convention is the the only piece of international legislation that provides for the return of an internationally abducted child.   The Philippines and many Middle Eastern countries are not  signatories to this Convention.  This means that if your child is taken out of the country without your knowledge and consent by the other parent, even with a valid visitation agreement confirmed by a Philippine court, you may have problems seeking the return of your child if he or she is taken to a country that does not observe this Convention.

You may also want to read:

• Some precautionary measures against parental kidnapping
• Can children travel abroad without father’s consent?
• Hold Departure Order in custody cases