I have an illegitimate son, he carries my surname. The father of my son is an Overseas Filipino Worker in Abu Dhabi. We had a misunderstanding and things had turned sour between us. He threatened me that he will no longer financially support our son.
I just want to clarify whether I can ask financial assistance from the father of my son even though we are not married and even if my son does not carry his father’s surname. If so, what are my remedies?
I hope that you will enlighten me on this matter.
“Helpless single mom”
Dear “helpless single mom”,
There are cases when support becomes a problem once the relationship of couples, married or unmarried, has turned sour. However, let this be a reminder to everyone that children should not suffer even if their parents had lost the love they once had for each other. The right of a child to support is an important matter which the law is bound to protect.
The use of an illegitimate child of his mother’s surname is in consonance with the provisions of Article 176 of the Family Code, which provides that illegitimate children shall use the surname and shall be under the parental authority of their mother. The use of the illegitimate child of his/her mother’s surname and vesting parental authority to the mother would not certainly disqualify such child to receive support from his/her father because the law confers upon the said child the right to receive support as provided for under Articles 194 and 195 of the Family Code.
Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family (Article 194, Family Code of the Philippines). The education of the person entitled to be supported shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Support for education also includes the fare in going to and from school.
The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the time of the date of judicial or extrajudicial demand (Article 203, The Family Code of the Philippines).
Based from the foregoing, you can demand from the father of your child either by personally asking him for support or by filing a case in court to demand support in behalf of your child. However, in your present situation, since, there is a threat that your child’s father will no longer give support, you have to file the necessary case in court. An action for support may be qualified as an action which affects the personal status of a person. As defined, status means a legal personal relationship, not temporary in nature nor terminable at the mere will of the parties, with which third persons and the state are concerned (cited in Remedial Law Reviewer, 2001 Revised Edition, page 244). In other words, it is an action where the relationship of your child and his father is at issue.
In the event that the father of your child would deny his paternity over your son or dispute the allegations in your petition for support that he is the father of your child, you should be ready with your evidence proving your son’s filiation with the father.
Filiation is the relationship of the child to his father or mother. You can prove your son’s filiation by presenting in court any of the following:
1. The record of birth appearing in the Civil Register or a final judgment; or
2. An admission of illegitimate filiation in a public document or a private handwritten instrument and signed by the father of your son.
In the absence of the foregoing evidence, the relationship of your son to his father shall be proven by:
1. The open and continuous possession of your son of the status of an illegitimate child or;
2. By any other means allowed by the Rules of Court and special laws (Article 172 in relation to Article 175 of the Family Code).
A petition for support may be filed in any of the family courts in the place where you reside. The fact that the father of your son is not a resident of the Philippines and the case affects the personal status of your son, you can also file the said case in the place where the property or any portion of the property of the father of your son is located, pursuant to the provisions of Rule 4, Section 3 of the Rules on Civil Procedure.
If summons against the father of your son cannot be effected by personal service, summons may, by leave of court, be served against him by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and the order of the court shall be sent by registered mail to his last known address or in any manner that the court may deem sufficient (Section 15, Rule 14, The 1997 Rules on Civil Procedure). With the use of the word “may” in the Rules, the Supreme Court later on ruled that summons may also be served by substituted service as held in the case of Montefalcon versus Vasquez (G.R. No. 165016, June 7, 2008, 554 SCRA 513), where the Supreme Court said that the normal method of service of summons on one temporarily absent is by substituted service because personal service abroad and service by publication are not ordinary means of summoning defendants.
Summons is a writ or process issued and served upon the defendant in a civil action for the purpose of securing his appearance therein.
However, please be advised that the satisfaction or execution of the judgment rendered in your action for support is another thing. Execution is the stage of the proceeding where the judgment rendered by the court in a case is to be satisfied. In your case, execution would be difficult because of the distance of the place where the father of your child resides. We, thus, earnestly advise you to seek the assistance of a counsel so that you can be properly guided.
We hope that we were able to address your concern. Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are stated.
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