- Hi attorney. I just read your response about last name amendment of a child whose parents aren’t married. You mentioned that: “The entries of the birth certificate may be amended to the effect that the surnames of the said child may be changed to that of their mother but only with the lawful order of the Court. The corresponding amendment may include, the entries regarding the non-existing date of marriage, etc…”
I have a case where I had registered the last name of my son to his father knowing that someday we’ll get married. But it did not happen. Now, I want my son’s last name registered back to my maiden name.
If my reason is valid in changing my son’s last name, do I need the father’s authorization/signature to do it? Thanks in advance. IRS
ANS:The matter of changing the name and more particularly the surname of a person is vested with public interest as it affects not only the legal identity of a person, but as well as, the rights of said person under the constitution and our statutes.
In conjunction with the above premise, the changing of the surname of your child to your surname for reason that the anticipated marriage between you and the father of the child did not materialized, could be valid ground for the changing of his surname. However, this requires court’s approval.
As a rule, your child being an illegitimate should follow the surname of the biological mother. Considering that the child’s birth’s certificate carries the surname of the father, it is safe to assume that the father have signed in the birth certificate or in other instrument showing that he expressly recognized the paternity and filiations of the child.
Such act of recognition which allows an illegitimate child to use the father’s surname is in accordance with Republic Act NO. 9255(An Act Allowing Illegitimate Children To Use the Surname of Their Father). The primary purpose of this law, among others, is to enhance the protection and welfare of the child from being socially ostracized as illegitimate and also to protect the rights of the child under the law .
Such as for instance: 1) ,the right of the child to carry the surname of the father as provided for by law , 2) right of support and 3) right to inherit as a compulsory heir of the father. These rights are protected by law and cannot be set aside by mere agreement of the parents or third parties.
Where the change of entries in the birth certificate is only a matter of typographical/clerical errors or mistakes with respect to the day, month in the date of birth or sex of the person, the same could be changed even without judicial order pursuant to Republic Act No.10172 whereby the City or Municipal Civil Registrar of the Consul General are authorize to correct such clerical or typographical errors in the birth certificate without the need of a court order.
However, in such other cases, like the changing of surname is not covered by the said exception . Republic Act. No. 9048 which provides that “No entry in a civil register shall be changed or corrected without a judicial order” ,still prevails.
It should be noted that the expressed act of recognition on the part of the father of upon the child have established an entrenched vested rights upon the person of the child as a distinct person with legal personality and the same cannot be changed, undermined or curtailed. Not even by the agreement of the biological parents. Thus, changing the surname of the child in his/her birth certificate would certainly require the intervention of the court, being an action in rem in an adversarial court proceedings . Hence, Court proceedings is required.
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