Adopting father’s surname promotes child’s best interests
"My son was born in 2001 before his father and I got married in 2003. He carried my surname. My second child who was born after our marriage carried his father’s surname. For 5 years now, my husband and I have been separated. Should I still change the surname of my eldest child considering that my husband stopped giving support since our separation? If I will pursue the change of his surname, what documents do I need to prepare?
Your eldest child is an illegitimate child because he was born out of wedlock. However, his status as an illegitimate child was changed to legitimate upon your subsequent marriage with his father. Legitimation is the process where the status of illegitimacy of a child is changed to legitimate by the subsequent marriage of his parents. Under Article 177 of the Family Code, only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. Legitimated children, such as your eldest child, shall enjoy the same rights as legitimate children and this right retroacts to the time of their birth (Article 179, 180 of the Family Code).Among the rights which a legitimate child is entitled to is the right to bear the surnames of the father and the mother (Article 174, Family Code).
In order to uphold his right as a legitimate child, we suggest for the child to use the surname of his father, even if you are already separated from the latter and even if he is not providing for support. The adoption of the surname of the father would promote the best interests of the child. Best interests of the child refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor ( Section 14, A.M. No. 03-04-04-SC, RE: Proposed Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors).In order for the surname of the son to be changed to that of his father, it is necessary to apply, first, for his legitimation. The following are the documents which you have to submit at the local civil registry of the place where your son was born: a) Certificate of Marriage b) Certificate of Live Birth of the Child c) Acknowledgement [not required for illegitimate children born on or after 3 August 1988] d) Affidavit of legitimation executed by both parents which shall contain the names of the parents, that at the time when the child was conceived, the aforesaid parents could have contracted marriage, and that they subsequently contracted marriage, the date and place when such marriage was solemnized, the name of the officer who officiated the marriage, the city or municipality where such marriage was recorded, the name of the child to be legitimated and the other facts of birth, the date and the place where the birth of the child was registered, and the manner by which the child was acknowledged by the parents which may be in the child’s record of birth, in a will, a statement before a court of record, or in any authentic writing [not required for illegitimate children born after 3 August 1988. (Rule 66, Administrative Order No. 1, Series of 1993 of the National Statistics Office).
As to the cost, it would be advisable for you to visit the local civil registry of the place where your son was born to inquire about the corresponding fees for such application.We wish to remind you 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 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."
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"Adopting father’s surname promotes child’s best interests"
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and updated on 14 September 2021