In the Philippines, the naming rights of illegitimate children are governed primarily by Republic Act No. 9255, which amended Article 176 of the Family Code. Under the original provision of the Family Code, illegitimate children were required to use the surname of their mother. However, the amendment now allows illegitimate children to use the surname of their father, provided certain legal requirements for recognition are met.
1. Legal Requirements for Using the Father's Surname
An illegitimate child may use the father’s surname if the father has expressly recognized the child through any of the following:
- The Record of Birth: The father’s name is signed in the "Affidavit of Admission of Paternity" found at the back of the Certificate of Live Birth (COLB) at the time of registration.
- Admission of Paternity: A separate public document executed by the father admitting paternity.
- Private Handwritten Instrument: A document written and signed by the father in his own handwriting wherein he admits paternity.
2. The Role of the AUSF
If the child was originally registered under the mother’s surname and the father later recognizes the child, or if the father wants the child to use his surname at the time of birth, an Affidavit of Use of the Surname of the Father (AUSF) must be executed.
- Who executes the AUSF?
- If the child is 0–6 years old, the mother or guardian executes the affidavit.
- If the child is 7–17 years old, the child executes the affidavit with the attestation of the mother or guardian.
- If the child is 18 years or older, the child executes the affidavit personally without needing the mother’s attestation.
3. Procedure for Registration
The process differs depending on when the recognition occurs:
At the Time of Birth: If the father is willing to recognize the child immediately, he signs the Affidavit of Admission of Paternity on the COLB. The AUSF is filed simultaneously with the Local Civil Registrar (LCR) where the birth occurred.
After the Birth has been Registered: If the child was already registered under the mother's surname, the following documents must be submitted to the LCR:
- The Affidavit of Admission of Paternity (if not previously signed).
- The AUSF.
- A Certified True Copy of the child's COLB.
The LCR will then record these documents in the Register of Legal Instruments and make an annotation on the original Certificate of Live Birth. It is important to note that the original surname is not erased; rather, a marginal note is added stating that the child is now authorized to use the father's surname pursuant to R.A. 9255.
4. Compulsory Recognition via Court Action
If the father refuses to recognize the child voluntarily, the mother or the child (if of age) may file a Petition for Compulsory Recognition in court. Evidence such as DNA testing, photos, letters, or testimonies can be used to prove filiation. Once a court issues a final and executory decision declaring paternity, this judgment is registered with the LCR, serving as the basis for the change of surname.
5. Important Legal Distinctions
| Feature | Voluntary Recognition | Compulsory Recognition |
|---|---|---|
| Mechanism | Affidavit or handwritten instrument | Court Litigation / DNA testing |
| Consent | Father agrees to the use of his name | Father is compelled by law |
| Administrative Fee | Required by the LCR | Legal fees and filing fees apply |
Note on Legitimation: Changing a surname under R.A. 9255 does not make the child "legitimate." Legitimation only occurs if the parents were not disqualified by any impediment to marry each other at the time of the child’s conception and subsequently enter into a valid marriage. If the parents marry, a separate process for Legitimation should be filed to grant the child the same rights as a legitimate child.
6. Effects of the Change
Once the LCR processes the AUSF and the admission of paternity, the child is entitled to use the father's surname in all public and private records, including passports, school records, and government IDs. However, the child remains "illegitimate" in status unless the parents marry, though they retain the right to support and successional rights (inheritance) as provided by the Civil Code.