In the Philippines, the surname of an illegitimate child is governed primarily by the Family Code of the Philippines (Executive Order No. 209), as significantly amended by Republic Act No. 9255. Understanding the process of changing an illegitimate child’s surname from the mother’s to the father’s requires navigating specific administrative and judicial pathways.
The General Rule and the Exception
Under Article 176 of the Family Code, the default rule is that illegitimate children shall use the surname of their mother. However, Republic Act No. 9255 (signed into law in 2004) amended this article to allow illegitimate children to use the surname of their father if:
- The father has expressly recognized the child through the Record of Birth appearing in the Civil Register; or
- The father admits paternity through an Admission of Paternity or a Relevant Public Document (such as a Will or a statement before a court of record); or
- The father executes a Private Handwritten Instrument where he expressly recognizes the child as his own.
Methods of Changing the Surname
The procedure for changing the surname depends on when the recognition occurs and whether the father is willing to cooperate.
1. At the Time of Birth Registration
If the father is willing to recognize the child at the time of birth, he may simply sign the Affidavit of Admission of Paternity located at the back of the Certificate of Live Birth (COLB). In this case, the child can immediately take the father’s surname upon registration.
2. After Birth (Administrative Process under R.A. 9255)
If the child was originally registered under the mother’s surname, the surname can be changed through an administrative process at the Local Civil Registry Office (LCRO) where the birth was recorded.
Requirements:
Affidavit of Admission of Paternity (AAP): Executed by the father, admitting he is the biological father.
Affidavit to Use the Surname of the Father (AUSF): This is a crucial document under R.A. 9255.
If the child is 0–6 years old, the mother or guardian executes the AUSF.
If the child is 7–17 years old, the child executes the AUSF with the mother's attestation.
If the child is of age (18+ or emancipated), the child executes the AUSF themselves without needing the mother's attestation.
Procedure: These documents are filed with the LCRO. Once verified, the Civil Registrar will record the documents and issue an annotated birth certificate showing the change of surname.
3. Compulsory Recognition (Judicial Process)
If the father refuses to recognize the child, the mother or the child (depending on age) must file a Petition for Compulsory Recognition in court.
Evidence such as DNA testing results, letters, photos, or testimonies showing a "continuous possession of status of an illegitimate child" can be used. If the court grants the petition and declares filiation, the court order serves as the basis for the LCRO to change the child’s surname in the civil registry.
Important Legal Considerations
| Aspect | Description |
|---|---|
| Parental Authority | Even if the child uses the father's surname, Article 176 dictates that parental authority over an illegitimate child remains solely with the mother, unless otherwise ordered by a court. |
| Support | Recognition of the child (whether voluntary or compulsory) creates a legal obligation for the father to provide financial support. |
| Succession | A recognized illegitimate child has successional rights and is entitled to a legitime, which is typically one-half of the legitime of a legitimate child. |
| Middle Name | When an illegitimate child changes their surname to the father's, the mother's surname usually becomes the child's middle name, mirroring the naming convention of legitimate children. |
Limitations of R.A. 9255
It is vital to note that R.A. 9255 allows the use of the father's surname, but it does not change the child's status from illegitimate to legitimate. Legitimation only occurs if the parents were not disqualified by any legal impediment to marry each other at the time of the child’s conception and subsequently enter into a valid marriage.
For births that occurred before the effectivity of R.A. 9255 (March 19, 2004), the law applies retroactively, provided the necessary affidavits (AAP and AUSF) are filed and the administrative fees are settled at the appropriate LCRO.