Changing Children's Surname if Parents Are Unmarried

Changing a Child’s Surname When Parents Are Unmarried in the Philippines: A Comprehensive Guide

In the Philippines, a child born to unmarried parents is, by default, considered illegitimate. Under the law, an illegitimate child customarily carries the surname of the mother. However, there are instances when an unmarried father can acknowledge paternity and have the child use his surname. This article discusses the relevant legal principles, procedures, and considerations involved in changing a child’s surname when the parents are unmarried.

1. Legal Framework

1.1. Family Code of the Philippines

  • The Family Code (Executive Order No. 209, as amended) provides the general rules governing family relations, including provisions on legitimate and illegitimate children.
  • Under this Code, a child conceived and born outside a valid marriage is considered “illegitimate.”

1.2. Republic Act No. 9255

  • Commonly referred to as “An Act Allowing Illegitimate Children to Use the Surname of their Father,” R.A. 9255 amended Article 176 of the Family Code.
  • The primary effect of R.A. 9255 is that it permits an illegitimate child to carry the father’s surname if the father expressly recognizes the child in the appropriate legal instrument (e.g., the Affidavit of Acknowledgment).

1.3. Implementing Rules and Regulations (IRR)

  • Implementing guidelines provide the step-by-step processes for amending a child’s surname on official records.
  • The relevant IRRs lay out the documents, supporting evidence, and sworn statements necessary when petitioning the Civil Registrar to change a child’s surname.

2. Default Rule: Mother’s Surname

2.1. Birth Registration of an Illegitimate Child

  • By default, an illegitimate child born to unmarried parents is registered under the mother’s surname.
  • If paternity is not acknowledged by the father at or before birth registration, the father’s name may be left blank or marked “unknown” on the child’s birth certificate.

2.2. Rights of the Unmarried Mother

  • The mother has the right to decide whether or not to include the father’s information on the birth certificate if the father is unwilling or unable to acknowledge the child at the time of registration.
  • Once registered, the child’s surname appears on the birth certificate as the mother’s surname, unless and until there is a legal acknowledgment of paternity followed by the proper procedure for changing the surname.

3. Acknowledgment of Paternity

3.1. Affidavit of Acknowledgment / Admission of Paternity

  • An Affidavit of Acknowledgment (or Admission of Paternity) is a legal document signed by the father, stating that he is indeed the biological father of the child.
  • For the child to use the father’s surname, this affidavit must be executed and duly notarized (or attested by a consular official if abroad).
  • If the child is below seven (7) years of age, both parents (or the father alone, if the mother is unavailable) can submit this affidavit for annotation on the child’s birth certificate through the Local Civil Registry Office (LCRO). If the child is older than seven, some LCROs require the child’s written consent, but practices vary.

3.2. Where and When to Execute

  • Ideally, the Affidavit of Acknowledgment is signed at the hospital or lying-in clinic, alongside the preparation of the birth certificate. However, acknowledgment may also occur at any time after birth registration through a separate affidavit.
  • The father’s signature must be voluntary, without duress or fraud. If the father refuses or contests paternity, a separate legal proceeding may be necessary to establish paternity (e.g., DNA testing, petition in court).

4. Process of Changing the Surname

4.1. Administrative Process Under R.A. 9255

  1. Prepare Documents

    • Original or certified true copy of the child’s Certificate of Live Birth.
    • Duly notarized Affidavit of Acknowledgment (if not already annotated on the birth certificate).
    • Valid government-issued IDs of both parents.
    • Other supporting documents required by the LCRO (e.g., proof of father’s identity, marriage certificate if the parents later marry, etc.).

  2. Visit the Local Civil Registry Office (LCRO)

    • File the required documents with the LCRO that holds the child’s birth records.
    • The LCRO typically requires filling out a supplemental report or a petition to annotate the father’s surname on the child’s birth record.

  3. Fees and Publication

    • Some LCROs require minimal fees for processing.
    • Publication is generally not required for straightforward administrative acknowledgments under R.A. 9255 (publication is typically required for changes of first name or for correction of clerical errors under R.A. 9048 and R.A. 10172, or for judicial changes).

  4. Annotation on the Birth Certificate

    • Once approved, the LCRO will annotate the child’s birth certificate, indicating that the father’s surname shall be used.
    • A new Certificate of Live Birth will not replace the old one; rather, an annotation is usually made in the remarks section, or a marginal note is added confirming the father’s surname adoption.

4.2. Judicial Process (If Required)

  • If there are disputes or complications—such as the father denying paternity, or complex errors in the birth certificate—a judicial process may be needed.
  • The parent, guardian, or the child (through a legal representative) may file a petition before the proper Regional Trial Court (RTC) for correction of entries under Rule 108 of the Rules of Court or for recognition of paternity.
  • A final court order will then be used to instruct the LCRO to annotate the changes on the birth certificate.

5. Legitimation by Subsequent Marriage

5.1. Concept of Legitimation

  • When unmarried parents later contract a valid marriage, their previously illegitimate child may be “legitimated” under certain conditions, according to the Family Code.
  • Legitimation has the effect of conferring legitimate status from the time of the child’s birth, provided that the parents had no legal impediment to marry each other at the time the child was conceived.

5.2. Impact on the Child’s Surname

  • Once legitimated, the child typically assumes the father’s surname as if born to parents validly married.
  • The LCRO processes these changes upon submission of the marriage certificate and an application for legitimation, typically requiring the parents’ joint affidavit.

6. Key Considerations

6.1. Father’s Consent

  • R.A. 9255 requires the father’s acknowledgment and written consent before an illegitimate child can use his surname.
  • If the father is unwilling to sign an Affidavit of Acknowledgment, the mother (or guardian) may need to initiate legal action to establish paternity.

6.2. Child’s Rights and Inheritance

  • Whether or not the illegitimate child carries the father’s surname, the child is still entitled to support and certain inheritance rights under the law (though these rights are subject to specific rules that differentiate legitimate from illegitimate children’s shares).
  • The father’s acknowledgment can be used to assert the child’s right to support and potential inheritance.

6.3. Age of the Child

  • Changing a surname is simpler when the child is a minor.
  • Some LCROs require the child’s written consent if they are over seven (7) years old.

6.4. Potential Social and Psychological Factors

  • Changing a child’s surname can have effects on personal identification, school records, and familial relations.
  • Parents should consider these impacts and consult each other, or a legal professional, to ensure the child’s best interests are served.

7. Practical Steps and Tips

  1. Consult the Local Civil Registrar

    • Procedures may vary slightly from one municipality to another.
    • Always inquire about the latest requirements and fees.

  2. Complete Your Paperwork

    • Prepare all necessary documents (birth certificate, Affidavit of Acknowledgment, IDs).
    • If legitimation is involved, include a certified true copy of the marriage certificate and the affidavit for legitimation.

  3. Seek Legal Advice if Disputed

    • If the father denies paternity or if there is a question about the authenticity of documents, seek legal counsel to file an appropriate case in court.
    • A clear legal strategy can help avoid delays and ensure the child’s legal interests are protected.

  4. Ensure Compliance with Legal Deadlines

    • Some civil registry updates may be more straightforward if done within a certain period from the child’s birth.
    • While there is no strict deadline for acknowledgment of paternity, addressing it sooner can simplify the procedure.

8. Frequently Asked Questions

  1. Is court action always required to change the surname?

    • No. If the father is willing to sign an Affidavit of Acknowledgment and the child’s birth was registered under the mother’s surname, the LCRO can handle the process administratively under R.A. 9255. Court action is only required if there is a dispute or if corrections involve matters outside the scope of administrative remedies.

  2. What if the father is abroad?

    • The father can execute an Affidavit of Acknowledgment before a Philippine consul or embassy official. The notarized (or consularized) affidavit can then be submitted to the LCRO in the Philippines.

  3. Does the child become “legitimate” just by using the father’s surname?

    • No. Using the father’s surname alone does not change the child’s status to “legitimate.” Legitimation requires a valid subsequent marriage of the parents (without legal impediment) or a separate legal process if the parents later marry.

  4. Will the new birth certificate replace the old one?

    • Typically, the LCRO will annotate or make a marginal note in the existing birth certificate. The original record remains on file, with the updated entry or annotation for the surname change.

  5. Can a child revert to the mother’s surname after using the father’s surname?

    • Reverting to the mother’s surname could again require a legal process, depending on the circumstances. If the father’s acknowledgment was valid, a reversion may require a court proceeding (e.g., a petition for change of name under Rule 103 of the Rules of Court).

9. Conclusion

Changing a child’s surname when the parents are unmarried involves navigating Philippine laws on illegitimacy, acknowledgment of paternity, and civil registration. Under R.A. 9255, an illegitimate child may use the father’s surname provided the father acknowledges paternity in a notarized affidavit and both parents comply with administrative requirements. In case of disputes or complex corrections, judicial recourse may be necessary.

While this article covers the essential legal foundations and procedures, it is always advisable to consult with a qualified attorney or approach the Local Civil Registrar for guidance tailored to your specific situation. Legal processes can vary in detail from one jurisdiction to another, and obtaining professional advice ensures the best outcome for the child’s interests and legal status.

Disclaimer: This article is for general informational purposes and does not constitute legal advice. Laws and regulations may change over time, and individual circumstances can vary. Always consult with a licensed attorney or contact the appropriate government office for current and case-specific legal guidance.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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