Surname and custody of an illegitimate child

Dear PAO,

I have an illegitimate son who is already two years of age, and he is not yet registered. My problem
started when the sister of the father of my son wanted to have custody of my son, so that they can also
register his birth using the surname of the father. I have no communication with the father of my son,
since he is an OFW, and he did not even visit my son when the latter was born. His sister is claiming that
my son will be better if she will take custody of him, because she is well off; hence, she can provide the
needs of my son. Please guide me on this matter.

Crystal

Dear Crystal,

For your information, the rule governing parental authority and custodial rights on illegitimate child is
found under Section 1 of Republic Act (R.A.) No. 9255 which states that:

“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. 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 abovementioned provision of law clearly provides that an illegitimate child shall be under the
parental authority of the mother and shall use the latter’s surname. The only instance where the child
may use the surname of the father is when the latter expressly recognized the child. In all issues
affecting such child, the primordial consideration is his best interest. This finds support in the case of
Grande vs. Antonio, (G.R. No. 206248, February 18, 2014), wherein the Honorable Supreme Court
through Honorable Associate Justice Presbitero J. Velasco, Jr., said that:

“It is best to emphasize once again that the yardstick by which policies affecting children are to be
measured is their best interest. On the matter of children’s surnames, this Court has, time and again,
rebuffed the idea that the use of the father’s surname serves the best interest of the minor child. In
Alfon v. Republic, for instance, this Court allowed even a legitimate child to continue using the surname
of her mother rather than that of her legitimate father as it serves her best interest and there is no legal
obstacle to prevent her from using the surname of her mother to which she is entitled. In fact, in
Calderon v. Republic, this Court, upholding the best interest of the child concerned, even allowed the
use of a surname different from the surnames of the child’s father or mother. Indeed, the rule regarding
the use of a child’s surname is second only to the rule requiring that the child be placed in the best
possible situation considering his circumstances.”

Applying the above quoted decision in your situation, the statement of the sister of the father of your
child that her custody over your illegitimate son and the registration of the birth of the latter using the
surname of the father will be best for the child has no legal basis. The late registration of your
illegitimate child using the surname of the father is not allowed considering that he was not expressly
recognized. Further, she cannot take custody over your illegitimate son, because R.A. No. 9255 clearly
provides that the parental authority which includes custody shall belong to the mother, who in essence
will serve the best interest or welfare of your child.