GR. No. 206248, 18 February 2004
Respondent [the father] 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 citing the “best interest of the child”. Respondent’s petition was granted by RTC and modified by the CA. In CA’s decision, it reversed the granting of the custody of the two children to the respondent but affirmed the surname change to of the same to Antonio. Aggrieved, wife filed petition for certiorari in SC.
Whether or not the father can exercise parental authority and consequently, custody, over his illegitimate children upon his recognition of their filiation.
Wether or not the father has the right to compel the use of his surname by his illegitimate children upon his recognition of their filiation.
On the first issue, no, petitioner cannot exercise custody over the children.
Parental authority over minor children is lodged by Art. 176 on the mother; hence, respondent’s prayer has no legal mooring. 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.
Respondent Antonio failed to prove that petitioner Grande committed any act that adversely affected the welfare of the children or rendered her unsuitable to raise the minors; she cannot be deprived of her sole parental custody over their children.
On the second issue, the answer is still a no.
An acknowledged illegitimate child isunder no compulsion to use the surname of his illegitimate father.
Even if IRR of RA 9255 provides that a surname change “shall” be necessary upon recognition of paternity, it is of no moment. The clear, unambiguous, and unequivocal use of “may” in Art. 176 rendering the use of an illegitimate father’s surname discretionary governand illegitimate children are given the choice on the surnames by which they will be known. Case is remanded to lower court to determine the choice of said children.
* Case digest by Ariel M. Acopiado, LLB-1, Andres Bonifacio Law School, SY 2017-2018