I have a child out of wedlock who is now nine years old. He gets along well with my husband and he treats his younger sister, my child with my husband, like they are true siblings. My husband and I have been considering fixing my son’s status so that he can also use the surname of my husband and be really part of our family. A friend mentioned to me about legitimation. Is this the proper route to take?
An illegitimate child, or one who was conceived and born outside a valid marriage, may be raised to a legitimate status through the process of legitimation. However, it bears stressing that not all illegitimate children are qualified for legitimation. It is indispensable that at the time the said child was conceived, his or her parents were not disqualified by any legal impediment to marry each other, or if they were so disqualified, it is only because either or both of them were below 18 years of age, and that his or her parents subsequently entered into a valid marriage (Section 1, Republic Act No. 9858 amending Article 177, Family Code of the Philippines).
Applying the foregoing in the situation that you have presented before us, we submit that the process of legitimation is not the appropriate remedy for you and your husband to endeavor. While you have entered into a valid marriage with your husband, it is worthy to note that he is not the biological father of your son. Hence, legitimation cannot prosper.
Nevertheless, you and your husband may opt to file a petition for adoption in order to raise the status of your son to that of legitimacy (Section 5 (3),A.M. No. 02-6-02-SC). It will be essential for you to prove, if both you and your husband are Filipino citizens, that you are of legal age, in possession of full civil capacity and legal rights, of good moral character, have not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, and in a position to support and care for the children in keeping with the means of the family. (Section 4, id) The verified petition for adoption must be filed before the Regional Trial Court, sitting as a Family Court, of the province or city where your family resides.
Considering that it is your intention to have your son use the surname of your husband, this matter must be explicitly indicated in the petition, together with the details of the qualifications above-mentioned, as well as the following: the first name, surname or names, age and residence of the adoptee as shown by his record of birth, baptismal and school records, that the adoptee is not disqualified by law to be adopted, the probable value and character of the estate of the adoptee, and the first name, surname or names by which the adoptee is to be known and registered in the Civil Registry. (Section 7, id)
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