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ILLEGITIMATE CHILD, WHO'S SURNAME TO USE?

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1 ILLEGITIMATE CHILD, WHO'S SURNAME TO USE? on Sun Nov 25, 2012 6:28 am

marymicahael


Arresto Menor
According to Article 176 of the Civil Code "Illegitimate children shall use the surname and shall be under the parental authority of their mother"

What if the Father recognize the child as his own through signing in the birth certificate, so the child can use the father's surname.

Question:
The child is currently using the father's surname, what if the mother of the child want's the child use her surname instead. Can she do that without the father's consent?

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2 Re: ILLEGITIMATE CHILD, WHO'S SURNAME TO USE? on Sun Nov 25, 2012 2:18 pm

concepab


Reclusion Perpetua
Yes.

But the case would be different if the mother is married and got pregnant by another guy.

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3 Re: ILLEGITIMATE CHILD, WHO'S SURNAME TO USE? on Sun Nov 25, 2012 8:53 pm

attyLLL


moderator
if the the surname of the child in the birth certificate is the mother's, i think it will pass.

but if it is the father's from the very start, i don't think it's proper


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4 Re: ILLEGITIMATE CHILD, WHO'S SURNAME TO USE? on Mon Nov 26, 2012 3:01 am

marymicahael


Arresto Menor
Thanks.

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5 Re: ILLEGITIMATE CHILD, WHO'S SURNAME TO USE? on Mon Nov 26, 2012 6:59 am

taxconsultantdavao


Reclusion Perpetua
allow me to quote in verbatim the article made by Atty. Gerry Galacio in another forum. The said article as made by him tackled different issues, including your concern about the issue of undoing what has been done under RA 9552 (use of father's name by an illegitimate child, can it be undone?)

What surname should illegitimate childrenuse? Problems and issues with RA 9255 andits implementing guidelines
Article 176 of the Family Code as originally drafted and asapproved by Pres. Corazon Aquino provided that illegitimatechildren had to use the maiden surname of the mother withthe entry for middle name left blank. However, Republic Act9255 amended Article 176 as follows (the boldfaced portionis the amendment):
Article 176. Illegitimate children shall use thesurname and shall be under the parental authority of their mother, and shall be entitled to support inconformity with this Code
. However, illegitimatechildren 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 instru- ment is made by the father. Provided, the father has the right to institute an action before the re- gular courts to prove non-filiation during hislifetime.
The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimatechild.
The Office of the Civil Registrar General then issued in May2004 the “Rules and Regulations Governing the Implemen-tation of R.A. 9255” (or IRR for brevity).Based on questions asked of me and my reading of RA9255 and its implementing rules, there are several issuesthat need to be clarified and addressed:
The child is still illegitimate even if the biological father’ssurname is used1
. Contrary to what a lot of people believe, RA 9255 doesnot grant legitimacy to the child. Even if the biological father allows the use of his surname, the child still remains illegitimate. Parental authority still belongs to the mother, whichmeans custody belongs to her. That is why Article 176 stillmakes a distinction between the legitimes (share in theinheritance) of legitimate and illegitimate childen.
Can RA 9255 be undone?2.
Some women informed me that they availed of RA 9255.Later on, these women had a falling out with the biologcalfathers and were no longer living together or communicating.The question I have been asked is,
“Can RA 9255 be un-done?”
That is, can the child’s birth certificate be changedso that the surname will now be that of the mother?My answer has always been that the legal remedy is Rule108 “Cancellation or Correction of Entries in the Civil Regis-try”. However, the problem is that RA 9255 was meant for the benefit of children so that they will not bear the stigma of illegitimacy. The courts may therefore not be inclined to grantthe correction or cancellation (although as of now, I havenot have read of a court decision on this matter).
3.
Even before RA 9255 took effect, biological fathers havesigned the back of the birth certificate in order to admit their paternity. In keeping with Article 175 (in relation to Article172), fathers, by signing the birth certificate, need no longer execute a separate document in order to acknowledge their illegitimate children. Meaning, the issue of support and inheri-tance was not tied to the issue of whether the child uses thefather’s surname or not.
RA 9255 uses the word “may” while the IRR uses “shall”4.
Notice that the RA 9255 uses the word “may” in the portionwhich reads

“illegitimate children may use the surname of their father if their filiation has been expressly recognizedby the father through the record of birth appearing in the ci-vil register, or when an admission in a public document or private handwritten instrument is made by the father.”
May”denotes direction or permission while “shall” denotesan obligatory or mandatory nature.
[u]

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6 Re: ILLEGITIMATE CHILD, WHO'S SURNAME TO USE? on Mon Nov 26, 2012 7:01 am

taxconsultantdavao


Reclusion Perpetua

-
2 / 2
RA 9255’s IRR makes the use of the father’s surnameautomatic and mandatory
Under the IRR, if the father signs the birth certificate,then AUTOMATICALLY the child will carry his surname.
For example, Rule 7.1.1 states:
“The illegitimate child shall use the surname of the father if a public document is execu-ted by the father, either at the back of the Certificate of LiveBirth or in a separate document.”
Rule 8.2 also provides that “for births previously registeredunder the surname of the mother”, the following rule shallbe followed:
Rule 8.2.1 If admission of paternity was made either at the back of the Certificate of Live Birth or in aseparate public document or in a private handwrit-ten document, the public document or AUSF shall be recorded in the Register of Legal Instruments.Proper annotation shall be made in the Certificateof Live Birth and the Register of Births as follows:“The surname of the child is hereby changed from(original surname) to (new surname) pursuant toRA 9255.” The original surname of the child appearing in theCertificate of Live Birth and Register of Births shall not be changed or deleted.
RA 9255 and its IRR as a tool of oppression againstwomen?
Where is the mother’s freedom of choice in what sur-name her illegitimate child will use? What if the womandecides to raise the child by her own without any helpor support from the man?
Unknowingly or unintentionally,the people who crafted the IRR of RA 9255 made it as a toolof oppression against women. If the biological father simplysigns the birth certificate or issues a public or private docu-ment acknowledging the child, the child automatically willcarry his surname, even without the mother’s knowledge or consent.For example, I know of a pregnant 18-year old girl. The girl’sfamily wisely refused to allow the man (22 years old, joblessand irresponsible) to marry the girl. The family is taking careof the girl and planning to raise the baby by themselveswithout any help from the guy. But based on the IRR of RA9255, the guy can create a lot of problems if he is able tosign the birth certificate OR if he simply issues a documentacknowledging the child. Based on the mandatory nature of the IRR, the child will automatically carry his surname,despite whatever objections the girl and her family mighthave.Another case: The illegitimate child was born in the 1990’swith the birth certificate carrying the mother’s maiden sur-name. The father signed the back of the birth certificate, butfrom the child’s birth, he never gave any financial support.The mother was forced to work overseas to support the childby herself. Recently, upon coming back to the Philippines,she discovered that her child was under the custody of thebiological father and was now using his surname in schoolrecords. Why? The man and his family (who have now be-come interested in the child) submitted the requirements tothe Local Civil Registrar. Under the mandatory nature of theIRR, the child is now using his surname, without the know-ledge and/or permission of the mother!
Based on the letter and spirit of RA 9255, the womanshould give her consent as to whether she wants or nother child to carry the man’s surname.
The IRR is wrongbecause of its mandatory nature. Meaning, okay, let the mansign the birth certificate to acknowledge the child. That is for the benefit of the child with regards the issue of support andinheritance. But as to what surname that child will carry, themother should be given the freedom to choose, whether touse the man’s surname or use her maiden surname.Sen. Loren Legarda is the principal sponsor of RA 9255.The spirit and intent of RA 9255 are certainly commendable.But the IRR as it stands now makes RA 9255 a tool for op-pressing women. Without waiting for Sen. Legarda’s clarifi-cation or for the NSO to act on this matter, women affectedby this situation should go to court to seek relief. One optionis to file a petition for declaratory relief under Rule 63 of theRules of Court. In layman’s terms, a petition for declaratoryrelief is asking the court to issue its legal opinion on whether the IRR exceeded the letter and intent of RA 9255. Thispetition can only be filed by a party who has not yet beenadversely affected by the IRR.In the case of mothers or children who have already beenadversely affected by the IRR (that is, the child now carriesthe surname of the biological father despite the lack of knowledge or consent of the mother), a petition for certiorariunder Rule 65 of the Rules of Court is the appropriate remedy.

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7 Re: ILLEGITIMATE CHILD, WHO'S SURNAME TO USE? on Mon Nov 26, 2012 7:04 am

taxconsultantdavao


Reclusion Perpetua


the article is not mine. please refer to the following link for your perusal.


http://www.scribd.com/doc/24334424/What-Surname-Should-Illegitimate-Children-Use


http://www.thegoodnews.org/CD/roman_road/roman_road.html

http://www.womentodaymagazine.com

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