Rights of illegitimates

Who has the right to the parental custody of illegitimate children, the father or the mother? Can the illegitimate children be compelled to use the father’s surname? These questions are answered in this case between Tony and Tita.

Tony and Tita lived together as husband and wife for a brief period although Tony was already married to someone else. Out of their illicit relationship two sons were born: Andy and Jerry. The boys were not recognized by Tony as his own in their record of birth at the Civil Registry, so they carried Emma’s surname.

After about ten years, Tony and Tita’s relationship turned sour. And when Tony learned that Tita will be leaving for the US with her two children, he filed before the Regional Trial Court (RTC) a “Petition for Judicial Approval of Recognition with Prayer to take Parental Authority, Parental Physical Custody, Correction/Change of Surname of Minors” and the Issuance of a Writ of Preliminary Injunction. In support of his petition Tony submitted a “Deed of Voluntary Recognition of Paternity” of the minors.

The RTC decided in favor of Tony by ordering the change of the minors’ surname to that of Tony’s surname, granting joint parental authority to both Tony and Tita but ordering that the primary right and immediate custody of the boys be given to Tony with visitation rights given to Tita every weekend. The court likewise ordered both Tony and Tita to cease and desist from bringing the minors outside the country.

Aggrieved, Tita appealed the decision to the Court of Appeals (CA). The CA partly granted the appeal by ordering the transfer of the children’s custody in favor of Tita with visitation rights given to Tony. The CA ratiocinated that the mother cannot be deprived of the sole parental custody over them because Tony failed to prove that Tita committed any act that adversely affected the welfare of the children or rendered her unsuitable to raise the minors. However, the CA agreed with the RTC and directed the Civil Registrar to enter the surname of Tony as the surname of the boys as it is the legal consequence of his recognition that he is the father of the minors and it is for their best interest that they carry the surname of their father.

Was the CA correct in ordering the change of the children’s surname to Tony’s surname?

No. It is clear under Article 176 of the Family Code that an illegitimate child shall use the surname of his or her mother. The exception is in case the filiation of the child is recognized by the father through the record of birth appearing in the civil register or when an admission in a public document or private handwritten instrument is made by the father. In such a situation the illegitimate child may use the surname of the father.

On its face, Article 176 as amended by RA 9255 is free from ambiguity. The use of the word “may” in the provision readily shows that an acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate father. The word may is permissive and operates to confer discretion upon the illegitimate children. Clearly the CA order or ruling on this matter will contravene the explicit and unequivocal provision of said Article as amended. So the case should be remanded to the RTC for the sole purpose of determining the surname to be chosen by Andy and Jerry (Grace M. Grande vs. Patricio T. Antonio, G.R. No. 206248, February 18, 2014).

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