Illegitimate child may use surname of father if recognized

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dearpao

Dear PAO,
There is a typographical error in my son’s birth certificate. His surname is that of his biological father. I am not married with my son’s father and this is clear in his birth certificate. I also got other supporting documents to prove that we are not married. Is this considered a clerical error? How do I remedy this? I will be getting him a passport soon.
Gee

Dear Gee,
A “clerical or typographical error” in a document registered with the local civil register refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the said civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth, mistake in the entry of day and month in the date of birth or the sex of the person or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided however, that no correction must involve the change of nationality, age, or status of the petitioner (Section 2 (3), Republic Act [R.A.] No. 10172, Clerical Error Law, as amended).

The surname of your son in his birth certificate cannot be considered as a clerical or typographical error which may be corrected by the local civil registrar by reference to other existing records even if it is clear in the said birth certificate that you are not married to the father of your son. The use of your son of his father’s surname could not be considered as a mistake in writing, copying, transcribing, or typing; rather it is a result of acknowledgment of paternity of the father. It is stated under Article 176, Family Code, as amended by R.A. No. 9255 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 handwritten instrument is made by the said father. But the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. Thus, the surname of your son would not be changed to that of your surname unless his father could institute a case for the purpose of proving non-filiation with the child. On the contrary, your child has no right to use the surname of his father in case the latter has not acknowledged your son as his. In case of non-acknowledgement of paternity, you may institute an action for change of name in your son’s birth certificate in court under the procedure of Rule 103 of the Rules of Court in order to change the surname to yours.

Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.

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