Affidavit of Sole Parental Authority for an Illegitimate Child: Requirements in the Philippines

Introduction

In the Philippine legal system, parental authority over children is a fundamental concept governed primarily by the Family Code of the Philippines (Executive Order No. 209, as amended). For illegitimate children—those born outside of a valid marriage—the law vests sole parental authority in the mother, unless the father has legally acknowledged the child and certain conditions are met. An Affidavit of Sole Parental Authority serves as a sworn declaration by the mother affirming her exclusive rights and responsibilities over the child. This document is often required in various administrative and legal processes to establish the mother's undivided authority, particularly when dealing with government agencies, schools, or international travel arrangements.

This article provides a comprehensive overview of the affidavit, including its legal foundation, purposes, contents, execution requirements, and related considerations. It is essential to note that while this document streamlines many procedures, it does not alter the underlying parental rights and may need to be supported by additional evidence of the child's illegitimate status.

Legal Basis

The primary legal framework for sole parental authority over illegitimate children is found in Article 176 of the Family Code, which states: "Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force."

This provision establishes that the mother automatically holds sole parental authority, encompassing decisions on the child's upbringing, education, medical care, and travel. The father's involvement is limited unless he voluntarily acknowledges the child through a public document or by including his name on the birth certificate (Article 172), and even then, parental authority remains with the mother unless a court order grants joint authority or custody to the father.

Amendments introduced by Republic Act No. 9255 (2004) allow illegitimate children to use the father's surname upon acknowledgment, but this does not automatically confer parental authority on the father. Republic Act No. 9858 (2009) further facilitates legitimation of children born to parents who subsequently marry, but for unlegitimated illegitimate children, the mother's authority remains sole.

In practice, the affidavit is rooted in administrative requirements from agencies like the Department of Foreign Affairs (DFA) for passport issuance, the Department of Social Welfare and Development (DSWD) for travel clearances, and the Bureau of Immigration for exit permits. It aligns with the Civil Code's provisions on affidavits (Articles 183-189) and the Rules of Court on notarial acts.

When is the Affidavit Required?

The Affidavit of Sole Parental Authority is not a standalone legal requirement under the Family Code but is often mandated by government agencies to verify the mother's exclusive rights and prevent issues like child trafficking or unauthorized travel. Common scenarios include:

Passport Application for the Child: Under DFA guidelines, if the child is illegitimate and the father has not acknowledged the child, the mother can apply for the passport alone. The affidavit confirms her sole authority, waiving the need for the father's consent.
International Travel: For minors traveling abroad:
- If the child is traveling with the mother, no additional clearance is typically needed due to her sole authority.
- If traveling alone, with a non-parent, or with the father (if acknowledged but without joint authority), a DSWD Travel Clearance is required, and the affidavit may support the application by affirming the mother's consent and authority.
Enrollment in School or Medical Procedures: Schools or hospitals may request the affidavit to ensure the mother's decisions are unchallenged, especially if the father's whereabouts are unknown or he disputes involvement.
Visa Applications or Immigration Processes: Foreign embassies or the Bureau of Immigration may require it to confirm parental consent for the child's travel or residency changes.
Legal Proceedings: In cases involving custody disputes, adoption, or name changes, the affidavit can serve as evidence of the mother's status, though court approval may still be needed for significant actions.

It is not required for routine domestic matters unless specifically requested by an institution.

Contents of the Affidavit

A standard Affidavit of Sole Parental Authority should be clear, concise, and factual. Key elements include:

Personal Details: Full name, age, civil status, address, and relationship to the child of the affiant (mother).
Child's Information: Full name, date and place of birth, and confirmation of illegitimate status (e.g., born out of wedlock, no paternal acknowledgment).
Declaration of Sole Authority: A statement affirming that the mother exercises sole parental authority under Article 176 of the Family Code, with no involvement or consent from the father required.
Purpose: Specify the intended use (e.g., passport application, travel consent).
Sworn Oath: The affiant swears to the truthfulness of the statements, acknowledging penalties for perjury under Republic Act No. 3815 (Revised Penal Code).
Signature and Date: Signed by the mother.

Optional inclusions: Reference to supporting documents like the child's birth certificate, and a statement on the father's unknown whereabouts or non-acknowledgment.

Requirements for Execution

To ensure validity, the affidavit must comply with notarial requirements under the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC, as amended):

Drafting: The document can be prepared by the mother, a lawyer, or using a template from government websites (e.g., DFA or DSWD). It must be in English or Filipino, typed or printed legibly.
Supporting Documents:
- Child's Birth Certificate (from the Philippine Statistics Authority, PSA), indicating illegitimate status (no marriage details or father's name, unless acknowledged).
- Mother's Valid ID (e.g., passport, driver's license, or voter’s ID).
- Proof of Maternity (if not evident from the birth certificate).
Notarization:
- Executed before a notary public in the Philippines.
- The affiant must appear personally, present valid ID, and sign in the notary's presence.
- Notarial fee: Typically PHP 100-200, plus additional for copies.
- If executed abroad, it must be consularized by a Philippine embassy or consulate.
Validity Period: The affidavit does not expire but may need renewal if circumstances change (e.g., father acknowledges the child) or if required by the requesting agency (e.g., DFA passports valid for 5-10 years, but affidavit might be re-executed for new applications).
Additional Steps for Specific Uses:
- For DFA: Submit with passport application form and fees.
- For DSWD: Include in travel clearance application, along with social worker assessment if needed.
- Apostille: For international use, obtain an Apostille from the DFA under the Hague Apostille Convention (since 2019), replacing consularization for Apostille-member countries.

Non-compliance, such as falsification, can lead to criminal liability under Articles 171-172 of the Revised Penal Code (falsification of documents) or perjury charges.

Potential Challenges and Considerations

Father's Acknowledgment: If the father has acknowledged the child (e.g., via affidavit of acknowledgment or birth certificate), sole authority may not apply, and joint consent could be required. In such cases, a different affidavit (e.g., Affidavit of Consent) is needed.
Disputes: If the father contests authority, a court petition under Rule 99 of the Rules of Court (custody of minors) may be necessary.
Adoption or Legitimation: These processes terminate sole authority and require court involvement.
Special Cases: For children of overseas Filipino workers (OFWs) or those with dual citizenship, additional requirements from the Commission on Filipinos Overseas or foreign laws may apply.
Updates and Reforms: Philippine laws evolve; for instance, proposed bills on expanding paternal rights or simplifying affidavits should be monitored via official sources.

Sample Template

Below is a basic template for the affidavit. It should be customized and reviewed by a legal professional.

AFFIDAVIT OF SOLE PARENTAL AUTHORITY

I, [Mother's Full Name], of legal age, single/widowed, Filipino citizen, and resident of [Address], after having been duly sworn in accordance with law, do hereby depose and state:

That I am the biological mother of [Child's Full Name], born on [Date of Birth] at [Place of Birth], who is an illegitimate child as evidenced by the attached Birth Certificate;
That the said child was born out of wedlock, and the father has not acknowledged the child in any legal manner;
That under Article 176 of the Family Code of the Philippines, I exercise sole parental authority over the child, including decisions on travel, education, and welfare;
That this affidavit is executed for the purpose of [Specify Purpose, e.g., applying for the child's passport];
That I am executing this affidavit to attest to the truth of the foregoing facts and for whatever legal purpose it may serve.

IN WITNESS WHEREOF, I have hereunto set my hand this [Date] at [Place].

[Mother's Signature]
Affiant

SUBSCRIBED AND SWORN to before me this [Date] at [Place], affiant exhibiting to me [ID Details].

Notary Public
Doc. No. ___;
Page No. ___;
Book No. ___;
Series of [Year].

Conclusion

The Affidavit of Sole Parental Authority is a crucial tool for mothers of illegitimate children in the Philippines, facilitating the exercise of their legal rights without unnecessary paternal involvement. By adhering to the outlined requirements, mothers can efficiently navigate bureaucratic processes while ensuring compliance with the law. Consulting a lawyer or relevant government agency is recommended for personalized advice, as individual circumstances may vary. This mechanism underscores the Philippine legal system's emphasis on protecting the best interests of the child under the principle of parens patriae.