Letter to a Lawyer

Dear Attorney,

I hope this message finds you well. I would like to seek your legal advice regarding a sensitive matter involving my child, who is currently using her biological father’s surname. She was born out of wedlock, and I now wish to change her surname. I am unsure of the legal procedures and requirements involved in this, and I would deeply appreciate your guidance on how I can legally change her surname.

Could you kindly explain the steps, legal basis, and any necessary documents that I need to prepare? I would also like to know whether the consent of her biological father is required, and what options are available if he is unwilling to cooperate.

Thank you for your time and assistance. I look forward to your advice on this matter.

Sincerely,
A Concerned Parent

Comprehensive Legal Discussion on Changing the Surname of an Illegitimate Child in the Philippines

Under Philippine law, the matter of a child’s surname—especially in cases of illegitimacy—has long been a sensitive and complex issue, governed by both the Family Code of the Philippines and related jurisprudence. In the case of illegitimate children, they are generally considered as children born to parents who are not legally married at the time of their birth, and their legal rights and obligations differ from those of legitimate children. One of the primary concerns that many parents face regarding an illegitimate child is the question of whose surname the child should bear, as well as the subsequent change of that surname.

This article will thoroughly explore the legal framework surrounding the change of surname for an illegitimate child, including who has the right to decide, what steps are involved in the process, and the various legal ramifications. Given the complexity of family law in the Philippines, it is essential to break down each aspect of the legal provisions applicable to this situation.

The Legal Basis for Using the Surname of the Father

The Family Code of the Philippines is the primary legal document that governs family relations, including issues of paternity, legitimacy, and the rights of illegitimate children. Article 176 of the Family Code, as amended by Republic Act No. 9255, provides a crucial starting point for understanding the legal framework related to surnames of illegitimate children.

Article 176, as Amended by Republic Act No. 9255:

Prior to the amendment of Article 176, an illegitimate child could only use the surname of the mother. This was a reflection of the traditional legal distinction between legitimate and illegitimate children, which placed significant legal restrictions on the rights of illegitimate children to carry their father’s surname.

However, with the enactment of Republic Act No. 9255 in 2004, an illegitimate child may now use the surname of his or her biological father under specific conditions. The law provides that an illegitimate child shall use the surname of the father if the father expressly recognizes the child through the record of birth appearing in the civil register, or when an admission in a public document or a private handwritten instrument is made by the father. In other words, the use of the father’s surname is contingent on the father’s voluntary acknowledgment of the child as his own.

It is important to note that, in the case where the father does not voluntarily acknowledge paternity, the illegitimate child will retain the surname of the mother. For parents who initially agreed to have the illegitimate child use the father’s surname, the law does provide a mechanism for changing the surname in the future, should circumstances change or if the mother wishes to revert the child’s surname to her own.

Legal Considerations for Changing the Surname of an Illegitimate Child

To change the surname of an illegitimate child who is already using the biological father’s surname, a parent must undergo a legal process, which depends on the reason for the change and the child’s circumstances.

There are generally two situations where the change of surname may be necessary:

When the child is using the surname of the father and the mother wishes to revert to her surname.
When the mother wishes to change the child’s surname from the father’s surname to her surname due to changes in the legal status or relationship between the parents.

The primary legal basis for changing the surname of an illegitimate child falls under the provisions of the Civil Code of the Philippines, the Family Code, and specific Administrative Orders issued by the Office of the Civil Registrar General.

Requirements and Procedure for Changing the Surname

When a parent wishes to change the surname of an illegitimate child who is currently using the father’s surname, the following general steps must be taken:

File a Petition for Change of Name. A formal petition for change of name must be filed with the Regional Trial Court (RTC) of the city or municipality where the child resides. This petition is governed by Rule 103 of the Rules of Court. It must include:
- The reason for the change of name.
- The name being sought.
- The personal information of the child (date of birth, place of birth, etc.).
Publication Requirement. The petition must be published in a newspaper of general circulation in the province where the RTC is located, for three consecutive weeks. This is to give the public notice and an opportunity for anyone who may object to the name change to raise their concerns.
Hearing. After the publication, the court will schedule a hearing. During the hearing, the petitioner (usually the mother) will have to present evidence justifying the change of surname. The court may also require proof that the biological father was notified of the petition if he is alive and known.
Decision of the Court. If the court finds that there is a valid and compelling reason to change the surname, it will issue a decision granting the petition. The court’s decision will then be forwarded to the Office of the Civil Registrar, which will annotate the child’s birth certificate accordingly.

Grounds for Changing the Surname

For the petition to be granted, there must be valid reasons to justify the change of surname. While the law does not specify an exhaustive list of valid reasons, some common grounds recognized by courts include:

Estrangement or Abandonment by the Father: If the biological father has abandoned the child or has shown complete indifference to the child’s welfare, the mother may argue that there is no benefit to the child continuing to bear the father’s surname.
Change in Legal or Familial Circumstances: If the mother has remarried and established a new family, she may wish for the child to share her surname, especially if the child is being integrated into the new family.
Protection from Harm or Ridicule: If the child is being subjected to harassment, discrimination, or social stigma due to the association with the biological father, the court may consider these factors in favor of a name change.
Child’s Preference: If the child has reached an age where he or she can express a preference regarding the surname, the court may take the child’s wishes into account, especially if the change of surname is in the child’s best interest.

Is the Father’s Consent Required?

In cases where the child is using the father’s surname, a common question that arises is whether the consent of the biological father is necessary for the name change. While the father’s consent may be important, it is not an absolute requirement. If the biological father is alive and known, he must be notified of the petition for the change of name, and he may raise objections in court if he chooses to do so. However, the final decision rests with the court, which will weigh the best interests of the child over the objections of the father.

In certain circumstances, the court may dispense with the father’s consent if there is a compelling reason to do so. For example, if the father has abandoned the child or is not contributing to the child’s upbringing, the court may decide that his consent is not necessary.

Jurisprudence and Notable Court Rulings

The issue of changing the surname of an illegitimate child has been addressed in several court cases in the Philippines. In Republic v. Capote (2009), the Supreme Court reaffirmed the rule that a change of name is not a matter of right, but a privilege that must be supported by valid and compelling reasons. The court emphasized that the welfare of the child is the paramount consideration in deciding such cases.

In **In Re: Petition for the Change of Name of Kenneth Brian Go, the Supreme Court held that the petition to change a child’s surname should not be granted solely based on the desire of one parent. Rather, the court must carefully examine the totality of the circumstances to ensure that the change is in the best interest of the child.

Conclusion

Changing the surname of an illegitimate child in the Philippines is a legally complex matter that requires following specific legal procedures, including filing a petition with the court, providing notice to the public, and possibly obtaining the consent of the biological father. While the court may allow the name change if it is in the best interest of the child, the process is not automatic and must be supported by valid reasons.

Ultimately, the decision to change an illegitimate child’s surname must be guided by the welfare of the child, and courts will carefully consider all relevant factors before granting such a petition.