In the Philippines, a birth certificate is the primary legal document establishing a person’s identity, filiation, and civil status. Issues surrounding the use of a father’s surname—particularly for non-marital (illegitimate) children—are governed by a complex interplay of the Civil Code, the Family Code, and Republic Act No. 9255.
The cancellation or removal of a father’s surname is not a matter of mere preference; it requires specific legal grounds and, usually, a judicial process.
1. The General Rule: Filiation and Surnames
Under Article 176 of the Family Code (as amended by RA 9255), the rules for surnames are as follows:
- Legitimate Children: Must use the father's surname.
- Illegitimate Children: Generally use the mother’s surname. However, they may use the father’s surname if:
- The father expressly recognizes the child in the record of birth.
- The father executes an Affidavit of Admission of Paternity (AAP) or a Private Handwritten Instrument (PHI).
2. Grounds for Cancellation or Change
The "cancellation" of a father’s surname typically refers to reverting to the mother’s maiden name or correcting an unauthorized entry. The primary grounds include:
A. Lack of Consent or Unauthorized Entry
If a child was registered using the father's surname without his express written recognition (no signed AAP or PHI), the entry is technically erroneous. In such cases, the father’s name and surname may be cancelled because the legal requirement for the use of the surname was never met.
B. Successful Impugning of Filiality
A child is presumed legitimate if born during a valid marriage. However, if a court grants a petition to impugn legitimacy (proving the husband could not possibly be the father due to physical impossibility of access, sterility, or DNA evidence), the father's surname can be cancelled. The birth certificate will then be amended to reflect the child’s status as illegitimate, usually resulting in the use of the mother’s maiden surname.
C. Voiding of a Voluntary Recognition
If a father recognized a child under the belief that he was the biological parent, but later discovers via DNA testing that he is not, he may file a petition to impugn that recognition. If the court voids the recognition, the legal basis for the child to carry the surname ceases to exist.
D. Adoption
Upon the issuance of a Decree of Adoption, the child’s original birth certificate is effectively superseded. The surname of the biological father is removed/cancelled in the new birth certificate, replaced by the surname of the adopter.
3. Key Legal Distinctions: Rule 103 vs. Rule 108
The process for removing or changing a surname in the Philippines follows the Rules of Court:
| Provision | Purpose | Application |
|---|---|---|
| Rule 103 (Change of Name) | To change the name a person is known by. | This is a "substantial" change. It does not affect filiation but changes the label by which the person is known in society. |
| Rule 108 (Cancellation/Correction of Entries) | To correct errors or cancel entries in the Civil Registry. | Used when the entry itself (the father's name/surname) is claimed to be illegal, false, or unauthorized. |
Important Note: The Supreme Court has ruled that substantial changes—those affecting civil status or filiation—cannot be done through a simple administrative correction under RA 9048. They require a judicial order where the Civil Registrar and all interested parties are impleaded.
4. Limitations: What is NOT a Ground?
It is equally important to understand what the law does not consider valid grounds for cancelling a father's surname:
- Failure to Provide Support: The fact that a father does not provide financial support is not a legal ground to strip the child of his surname. Filiation and support are distinct legal obligations.
- Loss of Affection: Abandonment or a broken relationship between the parents does not automatically entitle the mother to cancel the father’s surname on the birth certificate.
- Convenience: Changing a surname simply because the mother has married another man and wishes the child to "fit in" is not a ground for cancellation (though it may be a ground for adoption by the stepfather).
5. Procedural Overview
- Petition Filing: A verified petition is filed in the Regional Trial Court (RTC) of the province where the corresponding civil registry is located.
- Publication: The court will order the publication of the petition in a newspaper of general circulation for three consecutive weeks.
- Participation of the OSG: The Office of the Solicitor General (OSG) or the public prosecutor will represent the State to ensure the process is not used for fraudulent purposes.
- Evidence: DNA results, testimony, or proof of lack of recognition are presented.
- Judgment: If granted, the court issues an order directing the Local Civil Registrar to cancel or amend the entry.