My brother has a son with her girlfriend. When my brother and his girlfriend decided to separate, his partner left our nephew to us. My nephew is already 12 years old now and he is using my brother’s surname in all his records.
When we secured a copy of his birth certificate from the National Statistics Office (NSO), we found out that my nephew was registered using his mother’s surname.
How can we resolve this matter?
For all intents and purposes, the name of a person that appears in the Civil Register should be considered the real name of that person. Under the law, no entry in a civil register shall be changed or corrected, without a judicial order (Article 412, Civil Code). Hence, no person is allowed to effect changes in the record of birth of anyone without the proper administrative or judicial intervention.
We understand that you were not aware that your nephew when he was given to you was registered with the surname of his mother. This is in accord with Article 176 of the Family Code of the Philippines, wherein it is provided that illegitimate children shall be under the parental authority and shall bear the surname of the mother. However, when Republic Act (R.A.) 9255, otherwise known as “An Act Allowing Illegitimate Children to Use the Surname of their Father”, became a law, the same made it legally possible for an illegitimate child to use the surname of his/her father, provided the father expressly recognized the said child as his own by acknowledging him/her. Hence, your brother can apply with the Local Civil Registrar of the place where the birth of your nephew is registered for the change of his child’s surname into his family name so that the said change will reflect in the latter’s birth certificate. This is more beneficial to the interest of your nephew.
Under Administrative Order (A.O) 1, Series of 2004 (Rules Implementing R.A. 9255), certain requirements have to be met for the child to avail of the privilege or right and be able to use his or her father’s surname. Under the said rules, the father, mother, child if of age, or the guardian, may file the affidavit to use the surname of the father (AUSF) with the Local Civil Registry Office where the child was born. You may thus advise your brother to file an AUSF.
The provisions of AO 1, Series of 2004 pertinent to the case of your nephew are as follows:
7.2 For births previously registered under the surname of the mother:
7.2.1 If filiation has been expressly recognized by the father, the child may use the surname of the father upon submission of the accomplished AUSF.
7.2.2 If filiation has not been expressly recognized by the father, the child shall use the surname of the father upon submission of a public document or a private handwritten instrument supported by the following documents:
b. Consent of the child, if 18 years old and over at the time of the filing of the document
c. Any two of the following documents showing clearly the paternity between father and child:
(1) Employment records;
(2) Social Security System/Government Service Insurance System records;
(4) Certificate of membership in any organization;
(5) Statement of assets and liability; and
(6) Income tax return.
The procedure is not tedious if you have all the requirements ready. Your brother must go to the Local Civil Registrar where the birth of your nephew is registered and ask what procedures he has to follow. He may be asked to accomplish forms for that purpose and submit some documents for their reference. If a fee is collected at all for this purpose, it will only be minimal, perhaps just equivalent to the amount needed for processing your brother’s request.
We hope that we were able to address your query. Please be reminded that this advice is based solely on the facts that 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 firstname.lastname@example.org