Dear PAO,
I am a 45-year-old woman who has been married to Charlie for five years now. We are both Filipino citizens and we have just recently moved back to the Philippines about a year ago. I have an 8-year-old son from a previous marriage, which was annulled. Let’s just call my son, Andre.

Can my child use my husband’s surname considering the fact that he is now treated by my husband, Charlie as his own son? I know my child feels uncomfortable having a family name that is different from my present family name. I don’t want Andre to think that he is an illegitimate son. He was still very small when I separated with his dad. Do I still need to get the consent of my ex-husband before Charlie can adopt Andre?
Daphne

Dear Daphne,
I am glad to tell you that there is a way by which Andre can use your present family name. This can be made possible if Charlie adopts Andre through an adoption proceeding. If the court would grant Charlie’s petition for adoption, Andre would now be considered as Charlie’s legitimate son. Andre would then have the same surname as yours.

Before Charlie can adopt Andre, one of the basic things to be considered is that Charlie should meet the qualifications of an adopter under Section 7 of Republic Act (RA) No. 8552 or the Domestic Adoption Act. Under the said provision, a Filipino citizen may adopt if he or she is “of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee’s parent.”

The rule in RA No. 8552 is that the spouses should jointly adopt. However, Section 7 of the said law, does not require a joint adoption if “one spouse seeks to adopt the legitimate son/daughter of the other.” Because Andre is your legitimate son, you need not join Charlie in his petition to adopt Andre.

Once the court grants Charlie’s petition, Andre can already use Charlie’s surname. That is because after Charlie’s petition is granted, the law already considers Andre as Charlie’s legitimate son. Thus, Section 17 of RA No. 8552 states that “[t]he adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate son/daughter born to them without discrimination of any kind. Thus, your son, Andre would no longer have to worry about being considered by people as your illegitimate son once the adoption proceeding is finished. Actually, Andre was never an illegitimate son of yours. He has always been your legitimate son because according to you, he was born during your marriage with your ex-husband.

After the petition for adoption is granted, Andre’s birth records would also show that he is your and Charlie’s legitimate son, as he would be carrying Charlie’s surname. This is because under Section 14 of RA No. 8552, it is required that Andre be issued a new birth certificate which should attest to the fact that he is the legitimate son of Charlie, who adopted him. Andre’s new birth certificate would show that his surname is the same with Charlie’s surname. His old birth certificate would be stamped as “cancelled” and would be sealed in the civil registry records. Also, under the Rule on Adoption (A.M. No. 02-6-02), which took effect on August 22, 2002, a petition for adoption may also contain a prayer for the change of name of the person sought to be adopted. Thus, after the adoption, Andre, you, and Charlie would all have the same surname.

There is a need to obtain the consent of Andre’s biological father to the petition for adoption. The Supreme Court, in the case of Landingin vs. Republic (G.R. No. 164948, June 27, 2006), said that “[i]t has been the policy of the Court to adhere to the liberal concept . . . that adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration . . .” However, the Court, in the same decision clarified that “the discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child . . . 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.”

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 This email address is being protected from spambots. You need JavaScript enabled to view it.