My son has two birth certificates. The first one was registered immediately after his birth in 1997 by his father, who surnamed our son after him and indicated a date of marriage even if we were not actually married. I could not oppose then as I was living with him and his family, and I was only 18 years old at the time. After two and a half years, I left him and took my son because he was very abusive, and he refuses to give support. I had my son use my surname in his school records, and I never secured a copy of his birth certificate. But there came a time when we were required to present my son’s birth certificate as the school became strict. Someone told me to apply for late registration of birth, which I did. From then on, we were using his certification of late registration of birth.
Recently, we tried to secure my son’s NSO birth certificate as I intend to take him with me in Japan where I have been residing, and working for the past couple of years. We were informed that there appeared two records of him. I now want to have his first birth certificate cancelled as I want him to continue using his second birth certificate. How do I proceed with the filing of the necessary petition?
As a rule, the registration of birth of a person must be done within 30 days from the time of birth, and it must be done before the Office of the Civil Registrar of the city or municipality where such birth occurred. If no registration was made during the said period, the registration thereof may still be made but this shall be considered as delayed registration.
In the situation that you have presented, there appears to be no valid basis for the late registration of birth of your son, which you did after you have separated with his father, for the reason that he was already registered by his father immediately after his birth. It is, thus, not advisable for you or your son to continue using the said second birth certificate, and further, the same must be cancelled by filing a petition for cancellation before the Regional Trial Court which has jurisdiction over the place where the corresponding civil registry, where such registration was made, is located (Section 1, Rule 108, Revised Rules of Court). The concerned Local Civil Registrar and all persons who have interest which may be affected thereby must be made parties to the proceedings. Once the petition is filed, the court will issue an order fixing the time and place of the hearing and shall require that notices be given to such persons named in the petition. The court will likewise mandate that the said order be published in a newspaper of general circulation, once a week for three consecutive weeks (Sections 3 and 4, Rule 108, Id.).
Insofar as the first birth certificate of your son, you may file a petition for correction of entry before the Regional Trial Court which has jurisdiction over the local civil registry where the registration thereof was made (Section 1, Rule 108, Id.). But this is only insofar as the entry of the date of marriage between you and his father is concerned given that, as you have mentioned in your letter, the two of you never actually entered into a contract of marriage.
With regard to the issue of your son’s surname in the said birth certificate, we believe that only he can decide whether to retain the surname of his father or change it to that of your surname. It bears stressing that the law applicable at the time of his birth is Article 176 of the Family Code of the Philippines which states that: “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 x x x” (Emphasis supplied). This provision has been amended by Republic Act (R.A.) No. 9255 which provides under Section 1 thereof: “Article 176. 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. x x x” (Emphasis supplied)
Since your son’s father was the one who registered the former’s birth, this presupposes the fact the he recognized his filiation with your son. Thus, the latter possesses the right to continue using such surname. If he wishes to change his surname to that of your surname, he must file a petition for change of name before the court and he must establish that there is proper and reasonable cause/s for which the change is sought. Otherwise, the court will not grant the same.
We also wish to emphasize that the Supreme Court has ruled in the case of Grande vs. Antonio (G.R. No. 206248, February 18, 2014) that: “x x x Article 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is not the father (herein respondent) or the mother (herein petitioner) who is granted by law the right to dictate the surname of their illegitimate children. x x x On its face, Article 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 discretion upon the illegitimate children. x x x” (Emphasis supplied)
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