Illegitimate Children and the Use of the Father’s Surname in the Philippines
(A practitioner-oriented primer, updated to June 16 2025)
1. Governing Legal Framework
| Source | Key Provisions |
|---|---|
| Family Code of the Philippines (E.O. No. 209, 1988) | Arts. 163-176 define filiation, rights, parental authority and legitimation of illegitimate children. Art. 176 (as amended) is the cornerstone on surnames. |
| Republic Act No. 9255 (February 24 2004) | “An Act Allowing Illegitimate Children to Use the Surname of their Father…” Amended Art. 176 by inserting “…unless the father expressly recognizes the child…”; vested the power to authorize surname-switches in local civil registrars rather than the courts. |
| Implementing Rules & Regulations (IRR) of RA 9255 – PSA Admin. Order No. 1-2004 and AO No. 1-A-2004 | Operationalizes the affidavit and civil-registry workflow; enumerates documentary proofs of paternity. |
| RA 10172 (2012) & RA 9048 (2001) | Provide the general administrative route for correcting clerical / typographical errors in civil-registry documents—invoked when the surname entry is wrong, incomplete or wants reverting. |
| RA 9858 (2009) | Legitimation of children born to subsequently marrying parents in a cohabiting relationship. Using the father’s surname is not legitimation; the two concepts must be kept distinct. |
| Selected Supreme Court Decisions | – Dumanjug v. Dumanjug (G.R. 160065, 2005) distinguished surname use from legitimation. – Grande v. CA (G.R. 206248, 2016) clarified that RA 9255 dispensed with a judicial order when the documentary requirements are complete. – E.L.S. v. Republic (G.R. 247496, Feb 7 2022) reiterated that the child’s best interest is a paramount consideration in surname petitions, but administrative denial may be judicially reviewed. |
2. Meaning of “Illegitimate Child”
An illegitimate (or non-marital) child is one conceived and born outside a valid marriage (Art. 165). They enjoy the same basic human and family rights as legitimate children (Art. 208), but differences remain in:
- Surname (default rule),
- Successional shares (1 : 2 ratio vis-à-vis legitimate child under Art. 895, Civil Code),
- Parental authority (sole to the mother, Art. 176), and
- Legitimation/adoption pathways.
3. Default Surname Rule
Under Art. 176 (original text) an illegitimate child “shall use the surname of the mother.” This automatic maternal-surname rule is still the starting point today.
4. RA 9255: The Statutory Game-Changer
4.1 What RA 9255 Says
“Illegitimate children shall now be allowed to use the surname of their father if that father has expressly recognized the child in accordance with law and with the requirements of the IRR.”
4.2 Recognition of Paternity – Acceptable Documents The father must “expressly recognize” the child through any one of the documentary modes listed in §2 AO 1-2004, the most common being:
- The birth certificate itself – father signs the Affidavit of Acknowledgment/Admission of Paternity (back page).
- A notarized Public Instrument (e.g., Affidavit of Recognition, Acknowledgment of Paternity).
- A private handwritten letter of the father—provided its due execution and authenticity are duly proven.
- A will expressly acknowledging the child.
- Judicial admission or DNA-based filiation in court records.
4.3 The Affidavit to Use the Surname of the Father (AUSF)
| Requirement | Who signs? | Where filed? | When? |
|---|---|---|---|
| AUSF form (PSA CRS Form No. 1-A) | If child < 7 yrs: Mother, with father’s consent or proof of paternity If 7-17 yrs: Mother and child jointly If 18 yrs+: Child alone |
Local Civil Registrar (LCRO) of place where BC was recorded, or of residence if more practical | Any time; no prescriptive period |
| Proof of filiation (see 4.2) | — | — | — |
| Valid IDs of signatories | — | — | — |
| Filing fees + CRS fee (as of 2025: ₱1,000-1,500 typical) | — | LCRO/PSA | — |
Once accepted, the LCRO annotates the original Certificate of Live Birth (COLB) with:
“The child is hereby authorized to use the surname of the father pursuant to RA 9255.”
A revised COLB is forwarded to PSA; within 3-6 months a Certified True Copy (CTC) bearing the annotation can be requested.
4.4 No Court Order Needed—But …
- If the LCRO refuses the AUSF (e.g., doubts authenticity of paternity document, or there is an adverse claim by a putative parent), the remedy is a petition under Rule 108 of the Rules of Court in the Regional Trial Court (as stressed in E.L.S. v. Republic, 2022).
- A pending custody/parentage suit can also suspend AUSF processing.
5. Effects of Using the Father’s Surname
| Aspect | Effect |
|---|---|
| Civil status | Child remains illegitimate until legitimated (Arts. 177-178) or adopted. |
| Legitimation? | No. RA 9255 expressly states the administrative act “shall not result in legitimation.” |
| Succession | Shares stay the same. Father’s acknowledgment only removes the need for further proof of filiation in estate proceedings. |
| Parental authority | Still with the mother. Father may exercise substitute parental authority only when the mother (a) designates him through notarized instrument, (b) is absent, or (c) is unfit (Dumanjug, 2005). |
| Child support | Father’s duty to support exists from birth once paternity is proved (Art. 204). Surname choice is irrelevant but often correlates with acknowledgment. |
| Passport & school records | DFA and DepEd automatically honor PSA-certified AUSF COLBs. |
6. Surname Switchbacks: Mother to Father ✦ Father to Mother
- Getting father’s surname first, then reverting to mother’s – still possible by RA 9048 + Rule 108 showing best interest and avoiding confusion.
- Two surnames (hyphenation) – Neither the Civil Code nor RA 9255 forbids it, but PSA practice limits the entry to one surname to preserve database uniformity. Courts occasionally allow hyphenated surnames when the petition shows compelling welfare reasons (Republic v. Cang, 2011, CA).
7. Interplay with Other Statutes
| Scenario | Statutory Route |
|---|---|
| Parents subsequently marry each other | Legitimation under Arts. 177-178 (automatic; COLB annotated via LCRO). |
| Parents below marriageable age when child was born | RA 9858 legitimation after marriage or upon reaching age of majority. |
| Child rescued from simulated birth | RA 11222 (Simulated Birth Rectification Act) enables new COLB; surname choice follows legitimation rules. |
| Administrative adoption (RA 11642, 2022) | Surname of adopting parents will replace birth surname regardless of prior AUSF. |
8. Frequently Litigated Issues & Jurisprudence
- Best Interest Test vs. Father’s Veto – Grande v. CA held that once statutory requirements are met, public policy favors allowing the father’s surname unless the change undermines the child’s welfare (e.g., abusive father scenario).
- DNA Testing to Prove Paternity – Post-2010 cases (e.g., Republic v. Molina, CA rollo) accept court-ordered DNA as “express recognition” if father actively participated or later executed a confirmatory affidavit.
- Mistaken Paternity – If the alleged father later disproves filiation, the surname annotation may be cancelled via Rule 108; but the burden shifts to the contesting party (People v. Dacumos, 2018, on perjury complaint).
9. Practical Checklist for Counsels & LGU-based Social Workers
- Screen for documentary sufficiency – Is there any RA 9255-listed recognition?
- Age of the child – Signatory analysis (mother only, both, or child alone).
- Check for pending cases (custody, Rule 108) that might create a lis pendens.
- Explain limits – Emphasize that a surname switch does not equal legitimation or automatic custody rights.
- Anticipate passport/SSS/PhilHealth follow-through – Gather updated PSA copies before agency transactions.
10. Key Take-Aways
- Default: Illegitimate children carry the mother’s surname.
- Exception: RA 9255 lets them carry the father’s surname administratively, without a court order, upon express paternal recognition + AUSF.
- Status quo: The child remains illegitimate; only legitimation (Arts. 177-178, RA 9858) or adoption changes that.
- Parental authority stays primarily with the mother.
- Support and inheritance rights flow from proof of paternity, not from the surname itself.
11. Caveat
This article summarizes Philippine statutes, regulations, and jurisprudence in force as of June 16 2025. It is not legal advice. For case-specific guidance—especially when there is contestation, foreign elements, or overlapping custody proceedings—consult qualified Philippine counsel and review the latest PSA circulars and Supreme Court issuances.