My son sired his son out of wedlock three years ago. Since he and the mother of the child were still minors and still finishing their college degrees, they opted to heed the advice of the woman’s parents to have the baby registered and baptized using the mother’s family name. Next school year, my grandson will start pre-school. Can we require his mother to have him formally use his father’s surname? They are still not married and my son had already acknowledged being the father of my grandson.
Since your son and the mother of his child were not married at the time of the birth of their child, it appears that your grandson is an illegitimate child. As such, the applicable provision of the law is Article 176 of the Family Code of the Philippines, which provides for the use of surname for illegitimate children. According to this provision:
“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 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. 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” (As amended by Republic Act No. 9255).
Based on this cited provision, the general rule is that the mother’s surname shall be used by an illegitimate child. On the other hand, Republic Act (RA) 9255 amended this law to include a provision that now allows an illegitimate child to use his father’s surname if the father expressly recognizes the child as his own in a written document. Thus, your grandson may use his father’s surname if the father signed the birth certificate of your grandson, or if he acknowledged it in a public document or a private handwritten document.
It is important to note, however, that the use of the word “may” in the above-cited Article 176 of the Civil Code, as amended by RA 9255 ,signifies that the use of the father’s surname by the illegitimate child is discretionary even if the father formally acknowledged the illegitimate child to be his own child. This is according to the ruling of the Supreme Court in the case of Grace Grande v. Patricio Antonio(G.R. No. 20624, 18 February 2014) which states:
“On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide by 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 discretion17 upon the illegitimate children” (Grace Grande v. Patricio Antonio, G.R. No. 20624, 18 February 2014) Emphasis supplied.
Thus, based on this jurisprudence, even if your son as the biological father acknowledges his illegitimate child, he cannot force his child to use his surname as it is still up to the child who is under the parental authority of the mother to decide as to the surname that he will use.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org