Father’s surname may be used if he acknowledges child as his

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Persida Acosta

Persida Acosta

Dear PAO,
I would like to ask about my case. In my birth certificate, I have my mother’s last name, but in my baptismal certificate, my surname is that of my father’s. The latter is the one that I have been using ever since. I have no communication with my father, and both my mother and I have no idea of his whereabouts at this time. They are not married and my mother told me that he was gone when she was still a few months pregnant with me.

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I cannot secure a passport to travel (both for educational and employment purposes) because of this issue. I would like to request from our courts to allow me to use my father’s name in my birth certificate, so that this discrepancy will be corrected once and for all. I read several articles online, and as I understand, I will need my father’s written consent before I could proceed with this request. Is there any way for me to circumvent his consent? I am not sure if I will still be able to find him, because he is a foreigner and I am not sure where he is. Also, if my request will not be granted for any reason, do you think I can ask the court to allow me to continue using the name I am currently using to secure a passport? Thank you!

Jett

Dear Jett,
Since your parents were not married and are still not married, you are considered an illegitimate child of your father. The law that applies in your case is Republic Act (R.A.) No. 9255 or An Act Allowing Illegitimate Children to Use the Surname of their Father, which amended Article 176 of the Family Code. The said Article 176 as amended by R.A. No. 9255 states that “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 hand-written instrument is made by the father.” Filiation is the relationship of the parent to the child, whether it be legitimate or illegitimate.

The National Statistics Office (NSO) issued Administrative Order No. 1, Series of 2004 to provide rules and regulations for the implementation of RA No. 9255. In compliance with the law, the following documents may be submitted by the father, mother, guardian or the child if of age: certificate of live birth with accomplished Affidavit of Acknowledgement/Admission of paternity at the back, public document such as an affidavit executed by the father acknowledging paternity, any private handwritten instrument in the handwriting of the father and duly signed by him where he expressly recognized his paternity to the child, or an Affidavit to Use the Surname of the Father signed by the father allowing the child to use his surname.

Since your father did not sign your birth certificate, you must submit either a public document, a private handwritten instrument or the Affidavit to Use the Surname of the Father.

As you can see from the following requirements, it is necessary for you to get the consent of your father, since the law provides that as a general rule, an illegitimate child shall use the surname of his or her mother. Even the courts cannot order your father to allow you to use his surname, as only legitimate children are mandated by law to use the surname of their father. The law is clear that the only instance an illegitimate child can use the surname of his or her father is when the father acknowledges the child. Since your father was gone before your mother gave birth to you, you must either find a document that shows that he acknowledges you as his child or get his consent to execute an affidavit acknowledging you as his child and/or allowing you to use his surname. Otherwise, you must revert to your mother’s surname.

We hope that we were able to enlighten you on the matter. 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.

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