In the Philippines, the surname of an illegitimate child—one born to parents who are not legally married—is governed primarily by the Family Code and Republic Act No. 9255. While the law has evolved to allow children to use their father's surname under certain conditions, there are specific legal pathways and implications for maintaining or reverting to the mother’s surname.
1. The General Rule: Use of Mother’s Surname
Under Article 176 of the Family Code, the default rule is that illegitimate children shall use the surname of their mother. They are under the parental authority of the mother, regardless of whether the father recognizes the child.
2. The Exception: Republic Act No. 9255
Enacted in 2004, R.A. 9255 amended the Family Code to allow illegitimate children to use the surname of their father, provided that:
- The father has expressly recognized the child through the Record of Birth appearing in the civil register; OR
- The father admits paternity through an Affidavit of Admission of Paternity (AAP) or a Private Handwritten Instrument (PHI).
3. Scenarios for Changing to the Mother’s Surname
A. When the Father’s Surname was Never Used
If a child was registered at birth using the mother's surname and the father never signed the birth certificate or an admission of paternity, the child continues to use the mother’s surname by operation of law. No "change" is necessary.
B. Reverting from Father’s to Mother’s Surname
If a child currently uses the father’s surname (having been registered under R.A. 9255), changing it back to the mother's surname is more complex.
- Administrative Correction: If there was a clerical error in the entry, R.A. 9048 (Clerical Error Law) might apply, but this does not usually cover a wholesale change of surname based on preference.
- Judicial Petition: Generally, once a father’s paternity is legally admitted and the surname is registered, changing it back to the mother's surname requires a Petition for Change of Name under Rule 103 of the Rules of Court.
Note: Philippine courts are generally conservative regarding name changes. The petitioner must prove a "compelling reason," such as the name being ridiculous, tainted with dishonor, or to avoid confusion. Simply "wanting" to use the mother's name after paternity was already established may not always be granted unless it serves the best interest of the child.
C. When Paternity is Disproven
If a child was using the father's surname but a court later rules that the man is not the biological father (via DNA or other evidence), the court order will include a directive to the Local Civil Registrar (LCR) to cancel the father's name and revert the child's surname to the mother's.
4. Rights of an Illegitimate Child Using the Mother's Surname
Choosing or being required to use the mother’s surname does not diminish the child's legal rights, provided paternity is still established:
- Succession: The child remains a compulsory heir of both the mother and the biological father (if recognized), though they are entitled to half the legitime of a legitimate child.
- Support: The mother can still demand financial support from the biological father even if the child uses her surname.
- Custody: Under the law, the mother has sole parental authority and legal custody of an illegitimate child.
5. Procedural Overview (Administrative vs. Judicial)
| Process | Where to File | Context |
|---|---|---|
| Initial Registration | Local Civil Registrar (LCR) | Default at birth if no father is recognized. |
| R.A. 9255 Filing | LCR / Philippine Statistics Authority (PSA) | To use the father's name (requires father's consent). |
| Rule 103 Petition | Regional Trial Court (RTC) | To legally change a registered surname back to the mother's. |
6. Common Misconception: "Automatic Change"
Many believe that if the father stops providing support, the mother can automatically change the child's surname back to hers at the LCR. This is incorrect. Once the father's surname is registered via a valid admission of paternity, it is considered a permanent legal record. Any change thereafter usually requires a court order.
Summary Checklist
- Unrecognized Children: Use the mother's surname by default.
- Recognized Children: Use the father's surname if an AAP/PHI is filed.
- Changing Back: Requires a judicial process unless correcting a clerical error.
- Authority: The mother maintains sole parental authority over illegitimate children regardless of the surname used.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For specific cases, it is best to consult with a qualified member of the Integrated Bar of the Philippines (IBP).
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