Dear PAO,

Julio and I loved each other, so we decided to live together. I was pregnant when Julio met an accident which resulted to his death. I gave birth to our son, but my problem is that the local civil registrar refused to reflect Julio’s surname in my son’s certificate of live birth since the latter was not acknowledged. I tried to present Julio’s diary to prove filiation, but the same fell on deaf ears because the said diary was not signed. Is there a chance for my son to legally bear the surname of his father?

Krisanta

Dear Krisanta,

Section 1 of Republic Act (RA) 9255 specifically governs the surname to be used by an illegitimate child, and it provides 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.”

Correlative thereto, the filiation of a child may be established pursuant to Article 172 of the Family Code of the Philippines, which states that:

“The filiation of legitimate children is established by any of the following:

“(1) The record of birth appearing in the civil register or a final judgment; or

“(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

“In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

“(1) The open and continuous possession of the status of a legitimate child; or

“(2) Any other means allowed by the Rules of Court and special laws.”

Considering that you are presenting a private handwritten instrument (diary) to prove filiation, please be guided by the rules laid down in Dela Cruz v. Gracia, GR 177728, July 31, 2009, where the Supreme Court, through Associate Justice Conchita Carpio-Morales, stated that:

“In view of the pronouncements herein made, the Court sees it fit to adopt the following rules respecting the requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is made:

“1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and

“2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.”

The Supreme Court went further and said that:

“It is thus ‘(t)he policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children x x x.’ Too, ‘(t)he State as parens patriae affords special protection to children from abuse, exploitation and other conditions prejudicial to their development.’

“In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to petitioner minor child’s best interests to allow him to bear the surname of the now deceased Dominique and enter it in his birth certificate.”

Applying the above-quoted decision to your situation, the court may allow the diary as a proof of filiation even if the same is unsigned provided that it should be accompanied by other relevant and competent evidence. The claim of filiation based on a handwritten document made by the acknowledging parent is treated merely as a corroborative evidence. Thus, even an unsigned diary, if the same is corroborated by relevant and competent evidence, may be used to prove filiation of your child with his deceased father, and the correlative right of your child to use the surname of his father, in line with the policy to always consider and serve the best interest of a child.

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

We appreciate your trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]