The case in point raises this question: If a child is recognized by the father, what is the surname that he/she would use? This controversy arose because the father, who recognized his illegitimate child, wanted him/her to use his surname, but the Supreme Court said, such child cannot be compelled to do so. In fact, he can use any other surname.
Grace Grande and Patricio Antonio lived together as husband and wife without the benefit of marriage. Out of their illicit relationship, two (2) sons were born namely Andrew Lewis and Jerard Patrick. He filed a Petition for Judicial Approval of Recognition with prayer for Parental Authority Physical Custody, Correction/Correction of Surname of Minors. The trial court granted the petition and ordered the use of the surname of the Patricio by the minors. Is the judgment correct? Why?
Answer: No, because an illegitimate child “may” carry the surname of the father if he was recognized.
Article 176 of the Family Code as amended by RA 9255 provides that illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by their 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. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.
From the foregoing provisions, it is clear that the general rule is that an illegitimate child shall use the surname of his or her mother. The exception provided by RA 9255 is, in case his or her filiation is expressly 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. (Grace Grande v. Patricio Antonio, G.R. No. 206248, February 18, 2014, Velasco, J).
Art. 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is not the father or the mother who is granted by law the right to dictate the surname of their illegitimate children. This is so because the law uses the word “may.”
Nothing is more settled than that when the law is clear and free from ambiguity, it must be taken to mean what it says and it must be given its literal meaning free from any interpretation. Respondent’s position that the court can order the minors to use his surname, therefore, has no legal basis.
On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide its words. 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. (Grande v. Antonio, supra.).
The yardstick of policies affecting children
The yardstick by which policies affecting children are to be measured is their best interest. On the matter of children’s surnames, the Court has, time and again, rebuffed the idea that the use of the father’s surname serves the best interest of the minor child. In Alfon v. Republic, No. L-51201, May 29, 1980, 97 SCRA 858, the Court allowed even a legitimate child to continue using the surname of her mother rather than that of her legitimate father as it serves her best interest and there is no legal obstacle to prevent her from using the surname of her mother to which she is entitled. In fact, in Calderon v. Republic, 126 Phil. 1 , the Court, upholding the best interest of the child concerned, even allowed the use of a surname different from the surnames of the child’s father or mother. Indeed, the rule regarding the use of a child’s surname is second only to the rule requiring that the child be placed in the best possible situation considering his circumstances.
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Dean Ed Vincent S. Albano is the Bar Review Director of Albano Bar Review Center. He authored books/reviewers in Civil Law, Political, Law, Remedial Law and Legal Ethics.