In the Philippine legal landscape, the naming conventions for illegitimate children underwent a significant transformation with the enactment of Republic Act No. 9255. This law, which amended Article 176 of the Family Code of the Philippines, granted illegitimate children the right to use the surname of their father, provided certain legal requirements and procedures are strictly followed.
Prior to this amendment, illegitimate children were generally mandated to use the surname of their mother. RA 9255 provides a mechanism for recognition and paternal identity, even outside the bonds of marriage.
1. Scope and Applicability
RA 9255 applies to all illegitimate children born during the effectivity of the Family Code (August 3, 1988, onwards). It also has retroactive effect, meaning children born prior to the law’s effectivity but after the Family Code took effect can still avail themselves of its provisions, provided the father recognizes the child.
2. The Core Requirements for Using the Father’s Surname
The fundamental requirement for an illegitimate child to use the father’s surname is explicit recognition by the father. This recognition must be evidenced by specific legal documents:
- The Record of Birth: If the father signed the birth certificate (specifically the "Affidavit of Admission of Paternity" located at the back of the Certificate of Live Birth) at the time of registration.
- Admission of Paternity in a Public Document: A separate notarized document where the father expressly admits paternity.
- Private Handwritten Instrument: A document written and signed by the father in his own handwriting, clearly acknowledging that he is the biological father of the child.
3. Essential Documentary Requirements
To effect the change of surname in the Civil Registry, the following documents are typically required:
Affidavit of Admission of Paternity (AAP): Executed by the father if he has not yet admitted paternity in the birth certificate.
Affidavit to Use the Surname of the Father (AUSF):
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 or guardian's attestation.
If the child is of age (18+ years), the child executes the AUSF themselves, without need for maternal attestation.
Certified True Copy (CTC) of the Certificate of Live Birth.
Valid IDs of the signatories (Father, Mother, or Child).
4. The Registration Process
The process is administrative, meaning it does not require a lengthy court trial, provided there is no contest regarding the recognition.
- Filing: The documents (AAP and AUSF) are filed with the Local Civil Registry Office (LCRO) of the place where the birth occurred.
- Registration: The City/Municipal Civil Registrar examines the documents. Once verified, they register the instruments.
- Annotation: The Civil Registrar will not issue a new birth certificate but will instead annotate the existing Certificate of Live Birth. The annotation will state that the child is now authorized to use the father's surname pursuant to RA 9255.
- PSA Certification: After the LCRO process, the documents are forwarded to the Philippine Statistics Authority (PSA). The PSA then issues a certified copy of the birth certificate carrying the side annotation.
5. Key Legal Implications and Limitations
- Discretionary Nature: The use of the father's surname is a right, not an absolute obligation. The law states the child "may" use the surname. If the mother or child (upon reaching the age of discernment) chooses to retain the mother's surname, they are legally permitted to do so.
- Parental Authority: It is crucial to note that using the father's surname under RA 9255 does not automatically grant the father parental authority or legal custody. Under Article 176 of the Family Code, parental authority over illegitimate children remains with the mother, regardless of whose surname the child uses.
- Succession Rights: Recognition of paternity via RA 9255 establishes the filiation required for the child to claim their "legitime" or inheritance rights under the law on succession.
- Mandatory Notarization: All affidavits (AAP/AUSF) executed within the Philippines must be notarized. If executed abroad, they must be authenticated or apostilled by the Philippine Consulate or Embassy.
6. Summary Table: Who Executes the AUSF?
| Age of Child | Who Executes the AUSF? | Attestation Required? |
|---|---|---|
| 0 to 6 years | Mother or Guardian | No |
| 7 to 17 years | The Child | Yes (by Mother or Guardian) |
| 18 years and above | The Child | No |
7. Contested Paternity
If the father refuses to sign an admission of paternity, RA 9255 cannot be invoked administratively. In such cases, the mother or child must file a Judicial Petition for Compulsory Recognition in court. Only after a final court judgment declaring filiation can the child's birth record be amended to reflect the father's surname.