I have a 5-year-old son whose father refuses to acknowledge him. I tried all ways to talk to him about our child’s recognition so that our son could use his surname, but he always set this matter aside. I grew tired of talking to him and making our relationship work, so I ended our relationship as live-in partners and left. Fortunately, I had another chance at love and my present partner is very much involved in raising my son. We are planning to get married by the end of this year and soon thereafter we will adopt my son so that he can use his (my fiancé’s) surname.
Is it possible to push through with the adoption without involving my former live-in partner? I do not want to let him know about the adoption because he might just give me and my son a hard time, just like what he did when we were still together. Please advise.
Children who are born of parents who are not married to each other are considered illegitimate. Consequently, they bear the surname of their mother, in consonance with the provisions of Section 1 of Republic Act (RA) 9255, which amended Article 176 of the Family Code.
It is only when their filiation has been expressly recognized by their fathers, 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 their respective fathers, may illegitimate children use the surname of their fathers. (Id)
In your situation, it is clear that your son will bear your surname considering that his father, your former live-in partner, refuses to acknowledge his filiation with the child, despite the efforts that you have exerted.
Insofar as adopting your son after you and your present partner enter into a contract of marriage, we believe that such legal course may be taken as long as you and your husband possess all the qualifications of a qualified adopter. Pursuant to RA 8552 or the Domestic Adoption Act of 1998, an illegitimate child may be adopted by a qualified adopter to raise the status of the former to that of legitimacy. (Section 8 [c]in relation to Section 4, Id.)
However, we wish to emphasize that your child’s biological father must be informed of such adoption proceedings as his consent to the adoption will be sought. Section 9 of RA 8552 provides:
Whose Consent is Necessary to the Adoption. – After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:
x x x (b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; x x x” (emphasis supplied)
Moreover, according to the Supreme Court, such consent cannot be dispensed with. It earlier held that:
x x x The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption.
Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and re-established in adoptive parents. x x x (Landingin vs Republic of the Philippines, G.R. No. 164948, June 27, 2006; ponente: former Associate Justice Romeo J. Callejo Sr.)
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com