Category Archives: Surnames of Illegitimate Children

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.

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.

Surnames of Illegitimate Children

A child born out of wedlock is, by law, an illegitimate child of both parents. If both parents marry in the future, the child may become legitimated; provided, that the parents of the child were not suffering from any legal impediment to marry each other at the time of the child’s birth. In other words, both parents should have been legally single and free to marry one another, if they wanted to, at the time their lovechild was born. The consequence of the subsequent marriage of such persons is the legitimation of their lovechild.

Legitimation is not automatic. One has to apply for the new status to be reflected in the birth certificate of the child. Legitimation changes the status of the child from illegitimate to legitimate, thereby granting to the child additional rights such as the right to use the father’s surname and to inherit as a legitimate child from both parents. Some seek legitimation for their child for purely social reasons.

An interesting case came up involving two friends who had a lovechild before getting married to one another. The father of the illegitimate child was still legally married to his spouse at the time of the child’s birth, while the child’s mother was single. The subsequent marriage, however, could not result in the legitimation of the illegitimate child because of the legal impediment that existed at the time of her birth.

But what can one do to lessen the stigma that normally attaches to children born out of wedlock,when it is through no fault of their own? Though legitimation is not possible, I advised both parents to file a petition for the child to be allowed to use the surname of the father by virtue of Republic Act No. 9255. Under this law, illegitimate children may be allowed to carry the father’s surname.

One may not be able to wipe out entirely mistakes in one’s past, but one can at least make it less visible to society for the sake of the child.

Clerical Error Law

Don’t you just hate it when you discover a typo error in your son’s or daughter’s birth certificate especially when an urgent requirement comes up? Previously, one had to go through court proceedings in order to correct one misspelled word or even just one letter. But with the passage of the Clerical Error Law (RA 9048), changes involving spellings in the first name of a person can be done directly by the Civil Registry where the birth, marriage or death certificate is recorded. The law, however, does not cover changes in sex, age, nationality and status of a person.