In cases of dual registration, first birth

certificate takes precedence

2
BY THE MANILA TIMES ON JULY 13, 2015DEARPAO

Dear PAO,
My son has two birth certificates. The first one was registered immediately after his birth
in 1997 by his father, who surnamed our son after him and indicated a date of marriage
even if we were not actually married. I could not oppose then as I was living with him
and his family, and I was only 18 years old at the time. After two and a half years, I left
him and took my son because he was very abusive, and he refuses to give support. I had
my son use my surname in his school records, and I never secured a copy of his birth
certificate. But there came a time when we were required to present my son’s birth
certificate as the school became strict. Someone told me to apply for late registration of
birth, which I did. From then on, we were using his certification of late registration of
birth.

Recently, we tried to secure my son’s NSO birth certificate as I intend to take him with
me in Japan where I have been residing, and working for the past couple of years. We
were informed that there appeared two records of him. I now want to have his first birth
certificate cancelled as I want him to continue using his second birth certificate. How do
I proceed with the filing of the necessary petition?
Shiela

Dear Shiela,
As a rule, the registration of birth of a person must be done within 30 days from the time of
birth, and it must be done before the Office of the Civil Registrar of the city or municipality
where such birth occurred. If no registration was made during the said period, the
registration thereof may still be made but this shall be considered as delayed registration.

In the situation that you have presented, there appears to be no valid basis for the late
registration of birth of your son, which you did after you have separated with his father, for
the reason that he was already registered by his father immediately after his birth. It is, thus,
not advisable for you or your son to continue using the said second birth certificate, and
further, the same must be cancelled by filing a petition for cancellation before the Regional
Trial Court which has jurisdiction over the place where the corresponding civil registry,
where such registration was made, is located (Section 1, Rule 108, Revised Rules of
Court). The concerned Local Civil Registrar and all persons who have interest which may
be affected thereby must be made parties to the proceedings. Once the petition is filed, the
court will issue an order fixing the time and place of the hearing and shall require that
notices be given to such persons named in the petition. The court will likewise mandate that
the said order be published in a newspaper of general circulation, once a week for three
consecutive weeks (Sections 3 and 4, Rule 108, Id.).

Insofar as the first birth certificate of your son, you may file a petition for correction of entry
before the Regional Trial Court which has jurisdiction over the local civil registry where the
registration thereof was made (Section 1, Rule 108, Id.). But this is only insofar as the entry
of the date of marriage between you and his father is concerned given that, as you have
mentioned in your letter, the two of you never actually entered into a contract of marriage.
With regard to the issue of your son’s surname in the said birth certificate, we believe that
only he can decide whether to retain the surname of his father or change it to that of your
surname. It bears stressing that the law applicable at the time of his birth is Article 176 of
the Family Code of the Philippines 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 x x x” (Emphasis supplied). This provision has been
amended by Republic Act (R.A.) No. 9255 which provides under Section 1 thereof: “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)

Since your son’s father was the one who registered the former’s birth, this presupposes the
fact the he recognized his filiation with your son. Thus, the latter possesses the right to
continue using such surname. If he wishes to change his surname to that of your surname,
he must file a petition for change of name before the court and he must establish that there
is proper and reasonable cause/s for which the change is sought. Otherwise, the court will
not grant the same.

We also wish to emphasize that the Supreme Court has ruled in the case of Grande vs.
Antonio (G.R. No. 206248, February 18, 2014) that: “x x x Article 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. x x x On its face, Article 176, as
amended, is free from ambiguity. And where there is no ambiguity, one must abide by its
words. 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. x x
x” (Emphasis supplied)