I have an illegitimate son who is already two years of age, and he is not yet registered. My problem started when the sister of the father of my son wanted to have custody of my son, so that they can also register his birth using the surname of the father. I have no communication with the father of my son, since he is an OFW, and he did not even visit my son when the latter was born. His sister is claiming that my son will be better if she will take custody of him, because she is well off; hence, she can provide the needs of my son. Please guide me on this matter.
For your information, the rule governing parental authority and custodial rights on illegitimate child is found under Section 1 of Republic Act (R.A.) No. 9255 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. 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. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.”
The abovementioned provision of law clearly provides that an illegitimate child shall be under the parental authority of the mother and shall use the latter’s surname. The only instance where the child may use the surname of the father is when the latter expressly recognized the child. In all issues affecting such child, the primordial consideration is his best interest. This finds support in the case of Grande vs. Antonio, (G.R. No. 206248, February 18, 2014), wherein the Honorable Supreme Court through Honorable Associate Justice Presbitero J. Velasco, Jr., said that:
“It is best to emphasize once again that the yardstick by which policies affecting children are to be measured is their best interest. On the matter of children’s surnames, this Court has, time and again, rebuffed the idea that the use of the father’s surname serves the best interest of the minor child. In Alfon v. Republic, for instance, this Court allowed even a legitimate child to continue using the surname of her mother rather than that of her legitimate father as it serves her best interest and there is no legal obstacle to prevent her from using the surname of her mother to which she is entitled. In fact, in Calderon v. Republic, this Court, upholding the best interest of the child concerned, even allowed the use of a surname different from the surnames of the child’s father or mother. Indeed, the rule regarding the use of a child’s surname is second only to the rule requiring that the child be placed in the best possible situation considering his circumstances.”
Applying the above quoted decision in your situation, the statement of the sister of the father of your child that her custody over your illegitimate son and the registration of the birth of the latter using the surname of the father will be best for the child has no legal basis. The late registration of your illegitimate child using the surname of the father is not allowed considering that he was not expressly recognized. Further, she cannot take custody over your illegitimate son, because R.A. No. 9255 clearly provides that the parental authority which includes custody shall belong to the mother, who in essence will serve the best interest or welfare of your child.
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.