Dear Atty. Joji Alonso,
I have a child with my partner and we are living with his parents. When I gave birth, I decided not to use my partner's surname because we are not married yet. But since we are living with his parents, his mother insists that we use their surname for the child. Can they do this without my permission? Thank you.
Tasha
Dear Tasha,
To answer your question, the grandmother of your child cannot do such thing without your permission. She cannot interfere in the exercise of your parental authority over your child.
According to the Article 18, PD 603, The Child and Youth Welfare Code, the role of grandparents relative to their grandchildren is to give them substitute parental authority in case of incapacity of both parents. Grandparents shall be consulted on important family questions but they shall not interfere in the exercise of parental authority by the parents.
If there is any person who can have the surname of your child changed, it is the father and not the grandmother. The advent of Republic Act 9255, or An Act Allowing Illegitimate Children to Use the Surname of their Father, makes it legally possible for an illegitimate child to use the surname of his/her father, provided the father expressly recognized said child as his own by acknowledging said child as his.
In the event that the father of your child will make use of the provisions of RA 9255 in order to change the surname of your child, he can legally do so because the law allows him to do so. He will just need to meet the terms and conditions of the said law because there are certain procedural requirements an illegitimate child's father will have to comply with. Under Administrative Order 1 Series of 2004 (Rules and Regulations Governing the Implementation of RA 9255), for births previously registered under the surname of the mother and the child's filiation has been expressly recognized by the father, the child shall use the surname of the father upon submission of the accomplished Authority to Use Surname of the Father.
If filiation of the child has not been expressly recognized by the father, the child shall use the surname of the father upon submission of a public document or a private handwritten instrument supported by the following:
a. Authority to Use Surname of the Father
b. Consent of the child, if 18 years old and over at the time of the filing of the document
c. Any two of the following documents showing clearly the paternity between father and child:
(1) Employment records
(2) SSS/GSIS records
(3) Insurance
(4) Certificate of membership in any organization
(5) Statement of Assets and Liability
(6) Income Tax Return
Taking all of these into consideration, it would be best for you if you consult with your partner about his stand on the matter. Recognition of a child by his father is beneficial to the latter's interest. A child recognized by his putative father and who carries the latter's surname need not prove his filiation to the latter when the time comes that the child's relationship with his father shall be in issue. It must be noted that an illegitimate child has successional rights. His legitime consists of + of the share of a legitimate child in the event that his father has legitimate children.
Hope this helps.
Atty. Joji Alonso
