Dear Atty. Angela,
I was in a live-in relationship with my boyfriend who is separated from his wife and I got pregnant with a son. Eventually, our relationship turned sour and we broke up.
He did not appear in the hospital when I gave birth and I also do not intend for my son to use his surname. One day, I received a demand letter where he is insisting that since he is the father of my child, he wants the Certificate of Live Birth of our son bear his last name.
Can he legally demand that my son use his last name?
Divine
***
Dear Divine,
Your boyfriend who happens to be the father of your child cannot demand that his last name must be used by your son. Article 176 of the Family Code specifically provides that:
"Article 176. 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. x x x" (Emphasis supplied)
Thus, it is clear that an illegitimate child shall use the surname of his or her mother. The exception provided by RA 9255 is, in case his or her filiation is 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. In such a situation, the illegitimate child may use the surname of the father.
In the case of Grande v. Antonio, G.R. 206248 (18 February 2014), the Supreme Court held that Art. 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is not the father (herein respondent) or the mother (herein petitioner) who is granted by law the right to dictate the surname of their illegitimate children.
The use of the word "may" in the provision readily shows that an acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate father. The word "may" is permissive and operates to confer discretion upon the illegitimate children.
As such, the illegitimate child is given the legal right to choose which surname he/she will use. Meanwhile, your son shall use your last name until such time your son could already discern and make a decision whether he would like to use his father's last name.
Atty. Angela Antonio