Grande v Antonio
FACTS:
Petitioner Grande and respondent Antonio for a period of time
lived together as husband and wife, although Antonio was at that time
already married to someone else. Out of this illicit relationship, two
sons were born. The children were not expressly recognized by
respondent as his own in the Record of Births of the children in the
Civil Registry. The parties’ relationship, however, eventually turned
sour, and Grande left for the United States with her two children.
Respondent Antonio filed a Petition for Judicial Approval of Recognition
with Prayer to take Parental Authority, Parental Physical Custody,
Correction/Change of Surname of Minors and for the Issuance of Writ of
Preliminary Injunction before the RTC.
The RTC rendered a Decision in favor of respondent Antonio,
ruling that the evidence at hand is overwhelming that the best interest
of the children can be promoted if they are under the sole parental
authority and physical custody of respondent Antonio.
Upon appeal by Grande, the CA, however, maintained that the
legal consequence of the recognition made by respondent Antonio that
he is the father of the minors, taken in conjunction with the universally
protected "best-interest-of-the-child" clause, compels the use by the
children of the surname "ANTONIO."
Petitioner Grande interposed a partial motion for reconsideration,
particularly assailing the order of the CA insofar as it decreed the
change of the minors’ surname to "Antonio." She posits that Article
176 of the Family Code––as amended by RA 9255, couched as it is in
permissive language––may not be invoked by a father to compel the
use by his illegitimate children of his surname without the consent of
their mother.
ISSUE:
Whether or not the father has the right to compel the use of his
surname by his illegitimate children upon his recognition of their
filiation
HELD:
No. Art. 176 of the Family Code as amended by RA 9255
provides: Art. 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 their
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.
The general rule is 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 at bar, respondent filed a petition for judicial approval
of recognition of the filiation of the two children with the prayer for the
correction or change of the surname of the minors from Grande to
Antonio when a public document acknowledged before a notary public
under Sec. 19, Rule 132 of the Rules of Court is enough to establish the
paternity of his children. But he wanted more: a judicial conferment of
parental authority, parental custody, and an official declaration of his
children’s surname as Antonio.
Parental authority over minor children is lodged by Art. 176 on
the mother; hence, respondent’s prayer is untenable. Since parental
authority is given to the mother, then custody over the minor children
also goes to the mother, unless she is shown to be unfit.
As to the matter of the change of surname of the illegitimate
children, there is no legal basis for the court to order the change of the
surname to that of respondent Antonio.
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 or
the mother 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.
