In the Philippine legal system, the naming conventions for illegitimate children have undergone significant shifts. Republic Act No. 9255, which amended Article 176 of the Family Code, provides the primary mechanism for an illegitimate child to use the surname of their father. However, circumstances often arise where a mother or the child seeks to revert to or use the mother’s surname.
The Legal Framework: RA 9255 vs. The Family Code
Under the original text of the Family Code (1987), illegitimate children were strictly required to use the surname of their mother. On March 19, 2004, Republic Act No. 9255 took effect, allowing illegitimate children to use the father's surname if:
- The father recognizes the child through the record of birth appearing in the civil register; or
- The father executes an admission of paternity in a public document or a private handwritten instrument.
Can a Child Revert to the Mother's Surname?
While RA 9255 provides the path to using the father's surname, the question of "changing back" to the mother's surname is governed by a combination of administrative regulations and Jurisprudence (notably the landmark case of Grande v. Antonio).
1. The Principle of Discretion
Philippine courts have ruled that the use of the father's surname under RA 9255 is permissive, not mandatory. Even if a father has recognized the child, the child (represented by the mother if a minor) retains the right to choose which surname to use, provided it does not cause confusion or prejudice.
2. Grounds for Reverting to the Mother’s Surname
Common reasons for seeking a change from the father's to the mother's surname include:
- Abandonment: The father has failed to provide financial or emotional support.
- Non-Recognition: If the initial registration under the father's name was done via fraud or without a valid Affidavit of Admission of Paternity (AAP).
- Convenience and Identity: The child has been known by the mother's surname in school and social circles, and changing it would cause undue hardship.
Procedural Requirements
The process for changing a surname depends on whether the change is a correction of a clerical error or a substantial change in identity.
| Aspect | Administrative Correction (RA 9048) | Judicial Petition (Rule 103) |
|---|---|---|
| Applicability | For correcting clerical/typographical errors or if the first name is being changed. | For changing the surname (last name) due to substantial reasons. |
| Venue | Local Civil Registry Office (LCRO). | Regional Trial Court (RTC) where the child resides. |
| Requirements | Birth Certificate, valid IDs, filing fee. | Petition, publication in a newspaper, court hearings. |
Note: Because changing a surname from the father’s to the mother’s (after it has been legally registered) is considered a substantial change, it generally requires a Judicial Petition for Change of Name under Rule 103 of the Rules of Court.
The Role of the Affidavit of Admission of Paternity (AAP)
If a child currently uses the father's surname because of RA 9255, an AAP or a Private Handwritten Instrument (PHI) is likely on file with the Civil Registrar.
- If the AAP was never signed: The child should technically still be using the mother's surname. If the father's name was entered without his signature, this is a void entry and can be corrected via a petition for cancellation or correction of entry.
- If the AAP was signed voluntarily: Reverting to the mother's surname requires proving to the court that such a change is in the best interest of the child.
Best Interest of the Child Rule
In all matters concerning the name of a minor, the Supreme Court of the Philippines emphasizes the "Best Interest of the Child" doctrine. The court will evaluate:
- The child's preference (if of sufficient age).
- The length of time the child has used the current surname.
- The potential impact on the child's psychological and social well-being.
- The presence or absence of a meaningful relationship with the father.
Summary of Key Points
- RA 9255 is an avenue for illegitimate children to use the father's surname but does not strip them of the right to use the mother's surname.
- Illegitimate children are under the sole parental authority of the mother (Article 176, Family Code).
- A change of surname is a substantial change and usually necessitates a court order rather than a simple administrative request at the LCRO.
- The father's recognition of the child (paternity) remains even if the child changes their surname back to the mother's; the child's status as a compulsory heir is not affected by the choice of surname.