When can an illegitimate child use the surname of his father?

Illegitimate children can use the surname of their father if:

  1. Their filiation has been expressly recognized by the father through the record of birth appearing in the civil registrar;
  2. When an admission in a public document or a private handwritten instrument is made by the father.

Children born out of wedlock, also known as illegitimate children, may use the surname of the father under Republic Act No. 9255.

All you need is to file the necessary application with the civil registry of the place where your child was born along with the following documents:

  1. Certified true copy of child’s birth certificate (most require NSO certificates)
  2. Affidavit to Use the Surname of the Father
  3. Valid IDs of parents or the registrant if 18 years or older.
  4. For certificates of live birth with unknown fathers, submit additional documents such as the affidavit of acknowledgment/paternity and documents showing father’s signature like SSS, GSIS Policy Contract, ITR, PhilHealth and other proof of filiation.
  5. Note: In some cities/municipalities, the local civil registrar may require the personal appearance of the mother and father to confirm their identities.
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Does the Use of father’s surname grant legitimacy to child?

What is an illegitimate child?

A child who is born of parents not married to each other or born out of wedlock is an illegitimate child.

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Family Code of the Philippines (Article 165 of the Family Code).

  Who are considered illegitimate children?

The following are considered illegitimate children:

  1. Children born to couples who are not legally married or of common-law marriages;
  2. Children born of incestuous marriages;
  3. Children born of bigamous marriages;
  4. Children born of adulterous relations between parents;
  5. Children born of marriages void for reason of public policy under Article 38 of the Family Code;
  6. Children born of couples below 18, where they are married or not;
  7. Children born of other void marriages under Article 15 unless otherwise provided.

(OCRG. Cir. No. 89-13, 17 July 1989)

Are there different kinds of illegitimate children?

Yes. There are two kinds of illegitimate children. They are:

     1. An unrecognized illegitimate child – the child is not acknowledged by his biological father, and thus has to use the surname of his mother.

     2. A recognized illegitimate child – the child is recognized or acknowledged by his father. He is allowed to use the surname of his father. The filiation can be recognized by the father through:

      i)        The recognition of the father of the child’s paternity through the record of birth appearing in the civil register;

     ii)      When admission is made in a public document;

    iii)    When admission is made in a private handwritten document.

What do you mean by paternity and filiation?

Paternity and filiation refers to the relationship existing between parent and child. Filiation may be by nature or adoption. Children may be legitimate or illegitimate. 

How can filiation be proven?

Filiations of legitimate (or illegitimate) children are established by any of the following:

  1. The record of birth appearing in the civil registry or a final judgment
  2. An admission of legitimate (or illegitimate) filiation in a public document or a private handwritten instrument and signed by the parent concerned.

What if the child has no such proofs to prove his filiation to his biological father?

In the absence of any of the above evidence, such legitimate or illegitimate filiation may be proved by:

  1. Open and continuous possession of the status of a legitimate or illegitimate child;
  2. Any other means allowed by the Rules of Court and special laws. (Article 172 of the Family Code)

Does the Use of father’s surname grant legitimacy to child?

“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” (As amended by Republic Act No. 9255).

It is important to note that based on this cited provision, the general rule is that the mother’s surname shall be used by an illegitimate child. However, Republic Act No. 9255 amended this law to include a provision which now allows an illegitimate child to use his father’s surname if the father expressly recognizes the child as his own in a written document.

your son may use his father’s surname if the father signed the birth certificate of your son, or if he acknowledged it in a public document or a private handwritten document.

If, on the other hand, the father does not recognize your son, then the general rule shall prevail wherein your surname shall be used by your son. Furthermore, jurisprudence provides that the entry for the middle name of an illegitimate child’s birth certificate must be left blank if the father does not recognize the child. (Republic of the Philippines vs. Trinidad R.A. Capote February 2007).

Also note that the cited provision does not grant legitimacy to a child. Thus, even if an illegitimate child may use the surname of his father, the child’s status as an illegitimate will not change.

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Travel Clearance Required for Travel of Minors Abroad

Who are required to secure a travel clearance?

A travel clearance is required and shall be secured from the DSWD by the following Filipino citizens:

1. A minor traveling alone to a foreign country except under special circumstances where a minor whose parents are in the foreign service or are living abroad or are immigrants provided he/she is holding a valid pass such as a dependent’s visa/pass/identification card or permanent resident visa/pass/identification card which serve as proof that he/she is living with parents abroad and their travel does not constitute child trafficking.

2. A minor traveling to a foreign country accompanied by a person other than his/her parents.

When is a travel clearance not required?

A travel clearance from the DSWD is not required by a minor traveling to a foreign country:

1. With both or EITHER parents.

2. With his/her solo parent or legal guardian. Solo parenthood or legal guardianship may be proved by: (a) A photocopy of the solo parent identification card from the Municipal Social Welfare & Development Office; or (b) A photocopy of a certification from the local Social Welfare and Development Office of being a solo parent or Tallaq or Fasakh certification from the Shariah court or any Muslim barangay or religious leader; or (c) In the case of an illegitimate minor, a certificate of no marriage from the local civil registrar; or (d) In the case of a deceased parent, a photocopy of the death certificate; and (e) In the case of legal guardianship, a certificate of legal guardianship issued by the court.

3. Whose parents are in the foreign service or are living abroad or are immigrants, provided he/she is holding a valid pass such as a dependent’s visa/ pass/identification card or permanent resident visa/pass/ identification card which serve as proof that he/she is living with parents abroad and their travel does not constitute child trafficking.

How long is a travel clearance valid?

A travel clearance certificate shall be valid for a period of one (1) year from the date of issuance and shall be valid for multiple travels within the validity period, provided that the conditions under which the travel clearance was issued have not changed. If a change in condition occurs, e.g., a change in traveling companion, a new travel clearance must be obtained.

Where is the application for travel clearance filed?

The application for travel clearance together with the supporting documents required shall be submitted/filed by the parent or legal guardian or a duly authorized representative at any DSWD Field (regional) office (Please see attached list). Application forms may be obtained from any DSWD Field (regional) office or travel clearance office or may be downloaded from the DSWD website (www.dswd.gov.ph). The travel clearance may be obtained within 3 working days from the DSWD field (regional) or travel clearance unit where it was submitted, provided all requirements have been fulfilled.

See for complete details the source: http://jlp-law.com/blog/travel-clearance-required-travel-of-minors-abroad/

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The rule is that children older than 7 years old are allowed to state his preference. Is the court bound by such preference?

While such choice is given respect, the court is not bound by that choice. The court may exercise its discretion by disregarding the child’s preference should the parent chosen be found to be unfit, in which instance, custody may be given to the other parent, or even to a third person. Decisions on custody of children are always open to adjustment as the circumstances may warrant.

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Does the law allow a waiver of parental authority?

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children’s home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

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In the case a child is taken away without the consent of the single mother, what legal actions can a single mother take?

The single mother can file a civil and/or criminal case under Republic Act No. 90262, or “The Anti-Violence Act against Women and Children”.  Or, the single mother can also choose to file kidnapping charges under the Revised Penal Code.

In case the father, who had been given access, takes the child away contrary to the terms under which he was given access, the single mother can sue him under RA No. 9262 or file a petition for contempt against him for violating any court order.

 

Posted in Child Custody, Family Code, Question and Answers, RA 9262, Single Mother | Tagged , , , | 1 Comment

What can single mothers do to demand child support from the father?

To claim or demand support, the single mother must prove first that the child is related to the putative father.

When a man refuses to recognize a child as his, there is no other recourse but to file a petition compulsory recognition of an illegitimate child in the courts and only when filiation is proved, only then the courts can force a man to recognize his child. The Petition must be filed during the lifetime of the alleged parent.

If the parent and son relationship is in issue, the relationship should be established first before support can be demanded. The civil status of sonship being denied and this civil status, from which the right to support is derived, being in issue, it is apparent that no effect can be given to such a claim until an authoritative declaration has been made as to the existence of the cause. (Francisco vs. Zandueta, 61 Phil. 752)

There must be a declaration of the status of the child from which the right to support is derived and before support can be ordered. Such a declaration may be provisional, that is, by affidavits. (Mangulabnan vs. IAC, 185 SCRA 760)

When there is no proof of filiation, the man does not have to recognize the child and furthermore, support may not be granted since there is no basis that the man is the father.

Only when the filiation issue is resolved that the single mother can rightfully demand for child support, and this is best done in writing, with proof that such demand was received by the father.   If the father of the child refuses to provide child support despite receiving a written demand, the single mother can now sue the father for child support.

Republic Act No. 9262, otherwise known as the “Anti-Violence Against Women and their Children Act of 2004“  provides for criminal sactions or penalties for failure to provide support or withholding support, in certain cases.

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