Dear Attorney,

I am writing to seek your legal advice regarding a family matter. The concern involves the surname of a child whose biological parents are not married. There are three siblings in the family, and the youngest child, unlike the other two, does not bear the biological father’s surname. I would like to know the legal process for changing the youngest child's surname to that of the father, considering the parents' unmarried status.

Could you please provide detailed guidance on how we can proceed with this matter, including the necessary steps, documentation, and any possible legal obstacles we may encounter?

I appreciate your time and look forward to your advice.

Sincerely,
A Concerned Parent

Comprehensive Discussion on Changing a Child’s Surname in the Philippines

The issue of changing a child’s surname in the Philippines can be quite complex, particularly when the parents are not married. In Philippine law, the rules concerning surnames, especially in the context of legitimacy, illegitimacy, and the parents' marital status, are governed by the Family Code of the Philippines (Executive Order No. 209), Civil Code provisions, and the relevant jurisprudence on this matter.

The circumstances provided involve a non-marital relationship between the biological parents and the youngest child’s lack of use of the father's surname, unlike the siblings. To address this, we will explore the applicable laws, the legal processes involved in changing a child’s surname, and potential complications in the procedure. We will also provide practical steps and options that the concerned parent can take in this situation.

1. Legal Context: Illegitimacy and the Surname of a Child

According to the Family Code of the Philippines, a child born out of wedlock is considered "illegitimate," unless the biological parents subsequently marry each other and legitimize the child's status. In the case of an illegitimate child, Article 176 of the Family Code originally mandated that the child should use the surname of the mother. However, amendments to this rule were introduced through Republic Act No. 9255, which allowed an illegitimate child to use the surname of the biological father under certain conditions.

Republic Act No. 9255 (An Act Allowing Illegitimate Children to Use the Surname of Their Father) amends Article 176 of the Family Code and permits illegitimate children to use their father’s surname, provided that the father expressly recognizes or acknowledges the child as his own. This acknowledgment can take several forms, such as:

Signing the birth certificate at the time of the child’s registration;
Executing a notarized Affidavit of Acknowledgment or Admission of Paternity;
Filing a petition to correct the entry in the Civil Registry, or;
A judicial action for compulsory recognition.

In this particular case, since the parents are not married and the child is already using the mother’s surname, the first step is to determine whether the father has already acknowledged the child. If there has been no formal acknowledgment by the father, then the child cannot simply take his surname, and the necessary process of recognition or acknowledgment must be undertaken first.

2. How to Change the Child’s Surname: Voluntary Recognition by the Father

For the youngest child to take the father’s surname, the father must voluntarily acknowledge paternity. There are specific steps that need to be followed:

Execute an Affidavit of Acknowledgment of Paternity (AAP): If the biological father is willing to voluntarily acknowledge his child, he may execute a notarized Affidavit of Acknowledgment or Admission of Paternity. This document must be signed by both the father and the child’s mother. Once executed, it can be submitted to the Local Civil Registrar to amend the birth certificate of the child to reflect the father's surname.
Filing for the Change of Surname: Once the AAP has been executed and submitted, the next step is to request the change of the child’s surname through the Local Civil Registrar. The change of surname can be reflected in the child’s birth certificate through the filing of a petition to correct the entry in the Civil Registry under Republic Act No. 9048. This is a relatively straightforward administrative procedure where the father files a petition with the civil registrar to change the surname.
Registration of the Amended Birth Certificate: After the change has been approved, the amended birth certificate is registered with the Philippine Statistics Authority (PSA), and a new birth certificate is issued reflecting the child's new surname.

3. Legal Process if the Father Does Not Voluntarily Acknowledge the Child

If the biological father does not voluntarily acknowledge the child, the process becomes more complicated, as the mother or the child (if of legal age) will need to take legal steps to compel the father’s acknowledgment of paternity.

In this case, a petition for compulsory recognition can be filed in court. The petitioner (either the mother or the child) will need to prove that the biological father is indeed the father of the child. This could involve presenting evidence such as:

DNA tests;
Proof of cohabitation between the mother and father during the conception period;
Statements from witnesses or documentary evidence showing the relationship between the parents.

Once the court issues a judgment recognizing the father, the process of changing the surname can proceed as outlined above. However, it is important to note that this process may take some time due to the involvement of court procedures.

4. Situations Where the Surname Change Might Be Challenged

There are instances where the surname change may be contested or opposed. For example, the biological father may later dispute his paternity or refuse to sign the AAP. In such cases, it becomes necessary to initiate court proceedings to establish the father’s acknowledgment.

It is also possible that the surname change could be opposed by third parties, such as other family members or the child’s guardians, especially if they believe the surname change is not in the child’s best interests. The courts are likely to consider the best interest of the child in such cases.

5. Judicial Recourse for Older Children

The legal process of changing a child's surname is generally easier when the child is still a minor, as the parents or legal guardians have the authority to file the necessary petitions on behalf of the child. However, if the child is already of legal age (18 years or older), the child themselves may initiate the process of changing their surname. This typically involves filing a petition for a change of name under Rule 103 of the Rules of Court.

This process would require the child to demonstrate a compelling reason for the name change. For example, they may cite reasons such as personal identity, the desire to reflect the true parentage, or the need to avoid confusion or embarrassment caused by bearing a different surname from their siblings.

6. The Doctrine of Immutability of Entries in the Civil Registry

It is important to note that Philippine law adheres to the doctrine of immutability of entries in the Civil Registry. This doctrine essentially states that entries in public records, such as birth certificates, should not be lightly altered or changed, except for legally valid reasons. The courts are generally cautious when it comes to approving name changes, especially if they believe that the change could result in confusion or legal complications.

That being said, the law also recognizes that there are valid reasons for changing a child’s surname, especially when the change is made in the interest of the child’s welfare and in cases where the father has been properly acknowledged. In these instances, the immutability doctrine is not an obstacle, as long as the proper legal procedures are followed.

7. Effects of Changing the Surname on Inheritance and Other Legal Rights

A change in surname does not affect the child’s legal status or their rights to inheritance. Even if the child continues to bear the mother’s surname, they retain their right to inherit from both parents. However, using the father’s surname can sometimes make certain legal processes smoother, such as claiming benefits, proving parentage in legal matters, or securing recognition within the family.

It is important to remember that a child born out of wedlock is entitled to support and inheritance rights from the father, provided paternity is proven or acknowledged. Changing the surname does not alter these rights but may serve to clarify the parent-child relationship in official documents.

Conclusion: Practical Steps and Legal Considerations

To summarize, if the parents wish to change the youngest child’s surname to the father’s, they must follow the appropriate legal procedures. If the father is willing to voluntarily acknowledge the child, the process is relatively straightforward and can be done administratively through the Local Civil Registrar. However, if the father does not wish to acknowledge the child, a more complicated judicial process will be required.

In any case, it is recommended that the parents consult with a lawyer who specializes in family law to guide them through the process and ensure that the child’s legal rights are protected.