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Republic of the Philippines SO ORDERED.

"4
SUPREME COURT
On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration5
THIRD DIVISION praying that Stephanie should be allowed to use the surname of her natural mother
(GARCIA) as her middle name.
G.R. No. 148311. March 31, 2005
On May 28, 2001,6 the trial court denied petitioner’s motion for reconsideration holding
IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA that there is no law or jurisprudence allowing an adopted child to use the surname of his
biological mother as his middle name.
HONORATO B. CATINDIG, petitioner.
Hence, the present petition raising the issue of whether an illegitimate child may use the
DECISION surname of her mother as her middle name when she is subsequently adopted by her
natural father.
SANDOVAL-GUTIERREZ, J.:
Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a
May an illegitimate child, upon adoption by her natural father, use the surname of her consequence of adoption because: (1) there is no law prohibiting an adopted child from
natural mother as her middle name? This is the issue raised in the instant case. having a middle name in case there is only one adopting parent; (2) it is customary for
every Filipino to have as middle name the surname of the mother; (3) the middle name or
The facts are undisputed. initial is a part of the name of a person; (4) adoption is for the benefit and best interest of
the adopted child, hence, her right to bear a proper name should not be violated; (5)
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt his permitting Stephanie to use the middle name "Garcia" (her mother’s surname) avoids the
minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others, stigma of her illegitimacy; and; (6) her continued use of "Garcia" as her middle name is not
that Stephanie was born on June 26, 1994;2 that her mother is Gemma Astorga Garcia; that opposed by either the Catindig or Garcia families.
Stephanie has been using her mother’s middle name and surname; and that he is now a
widower and qualified to be her adopting parent. He prayed that Stephanie’s middle name The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that
Astorga be changed to "Garcia," her mother’s surname, and that her surname "Garcia" be Stephanie should be permitted to use, as her middle name, the surname of her natural
changed to "Catindig," his surname. mother for the following reasons:

On March 23, 2001,3 the trial court rendered the assailed Decision granting the adoption, First, it is necessary to preserve and maintain Stephanie’s filiation with her natural mother
thus: because under Article 189 of the Family Code, she remains to be an intestate heir of the
latter. Thus, to prevent any confusion and needless hardship in the future, her relationship
"After a careful consideration of the evidence presented by the petitioner, and in the or proof of that relationship with her natural mother should be maintained.
absence of any opposition to the petition, this Court finds that the petitioner possesses all
the qualifications and none of the disqualification provided for by law as an adoptive Second, there is no law expressly prohibiting Stephanie to use the surname of her natural
parent, and that as such he is qualified to maintain, care for and educate the child to be mother as her middle name. What the law does not prohibit, it allows.
adopted; that the grant of this petition would redound to the best interest and welfare of
the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioner’s Last, it is customary for every Filipino to have a middle name, which is ordinarily the
care and custody of the child since her birth up to the present constitute more than enough surname of the mother. This custom has been recognized by the Civil Code and Family
compliance with the requirement of Article 35 of Presidential Decree No. 603. Code. In fact, the Family Law Committees agreed that "the initial or surname of the mother
should immediately precede the surname of the father so that the second name, if any, will
WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, be before the surname of the mother."7
Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and
maintenance with respect to her natural mother, and for civil purposes, shall henceforth be We find merit in the petition.
the petitioner’s legitimate child and legal heir. Pursuant to Article 189 of the Family Code of
the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG. Use Of Surname Is Fixed By Law –

Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned For all practical and legal purposes, a man's name is the designation by which he is known
pursuant to Rule 99 of the Rules of Court. and called in the community in which he lives and is best known. It is defined as the word
or combination of words by which a person is distinguished from other individuals and,
Let copy of this Decision be furnished the National Statistics Office for record purposes. also, as the label or appellation which he bears for the convenience of the world at large
addressing him, or in speaking of or dealing with him.8 It is both of personal as well as
public interest that every person must have a name. Art. 375. In case of identity of names and surnames between ascendants and descendants,
the word ‘Junior’ can be used only by a son. Grandsons and other direct male descendants
The name of an individual has two parts: (1) the given or proper name and (2) the shall either:
surname or family name. The given or proper name is that which is given to the individual
at birth or at baptism, to distinguish him from other individuals. The surname or family (1) Add a middle name or the mother's surname,
name is that which identifies the family to which he belongs and is continued from parent
to child. The given name may be freely selected by the parents for the child, but the (2) Add the Roman numerals II, III, and so on.
surname to which the child is entitled is fixed by law.9
x x x"
Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate
the use of surname10 of an individual whatever may be his status in life, i.e., whether he Law Is Silent As To The Use Of
may be legitimate or illegitimate, an adopted child, a married woman or a previously
married woman, or a widow, thus: Middle Name –

"Art. 364. Legitimate and legitimated children shall principally use the surname of the As correctly submitted by both parties, there is no law regulating the use of a middle name.
father. Even Article 17611 of the Family Code, as amended by Republic Act No. 9255, otherwise
known as "An Act Allowing Illegitimate Children To Use The Surname Of Their Father," is
Art. 365. An adopted child shall bear the surname of the adopter. silent as to what middle name a child may use.

xxx The middle name or the mother’s surname is only considered in Article 375(1), quoted
above, in case there is identity of names and surnames between ascendants and
Art. 369. Children conceived before the decree annulling a voidable marriage shall descendants, in which case, the middle name or the mother’s surname shall be added.
principally use the surname of the father.
Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365
Art. 370. A married woman may use: of the Civil Code merely provides that "an adopted child shall bear the surname of the
adopter." Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is
(1) Her maiden first name and surname and add her husband's surname, or likewise silent on the matter, thus:

(2) Her maiden first name and her husband's surname or "(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters
and both shall acquire the reciprocal rights and obligations arising from the relationship of
(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as parent and child, including the right of the adopted to use the surname of the adopters;
‘Mrs.’
x x x"
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall
resume her maiden name and surname. If she is the innocent spouse, she may resume her However, as correctly pointed out by the OSG, the members of the Civil Code and Family
maiden name and surname. However, she may choose to continue employing her former Law Committees that drafted the Family Code recognized the Filipino custom of adding the
husband's surname, unless: surname of the child’s mother as his middle name. In the Minutes of the Joint Meeting of
the Civil Code and Family Law Committees, the members approved the suggestion that the
(1) The court decrees otherwise, or initial or surname of the mother should immediately precede the surname of the father,
thus
(2) She or the former husband is married again to another person.
"Justice Caguioa commented that there is a difference between the use by the wife of the
Art. 372. When legal separation has been granted, the wife shall continue using her name surname and that of the child because the father’s surname indicates the family to which
and surname employed before the legal separation. he belongs, for which reason he would insist on the use of the father’s surname by the child
but that, if he wants to, the child may also use the surname of the mother.
Art. 373. A widow may use the deceased husband's surname as though he were still living,
in accordance with Article 370. Justice Puno posed the question: If the child chooses to use the surname of the mother,
how will his name be written? Justice Caguioa replied that it is up to him but that his point
Art. 374. In case of identity of names and surnames, the younger person shall be obliged to is that it should be mandatory that the child uses the surname of the father and permissive
use such additional name or surname as will avoid confusion. in the case of the surname of the mother.
Prof. Baviera remarked that Justice Caguioa’s point is covered by the present Article 364, by the United Nations, accepted the principle that adoption is impressed with social and
which reads: moral responsibility, and that its underlying intent is geared to favor the adopted child.18
Republic Act No. 8552, otherwise known as the "Domestic Adoption Act of 1998,"19
Legitimate and legitimated children shall principally use the surname of the father. secures these rights and privileges for the adopted.20

Justice Puno pointed out that many names change through no choice of the person himself One of the effects of adoption is that the adopted is deemed to be a legitimate child of the
precisely because of this misunderstanding. He then cited the following example: Alfonso adopter for all intents and purposes pursuant to Article 18921 of the Family Code and
Ponce Enrile’s correct surname is Ponce since the mother’s surname is Enrile but Section 1722 Article V of RA 8552.23
everybody calls him Atty. Enrile. Justice Jose Gutierrez David’s family name is Gutierrez and
his mother’s surname is David but they all call him Justice David. Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all
the rights provided by law to a legitimate child without discrimination of any kind,
Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it including the right to bear the surname of her father and her mother, as discussed above.
shall be mandatory on the child to use the surname of the father but he may use the This is consistent with the intention of the members of the Civil Code and Family Law
surname of the mother by way of an initial or a middle name. Prof. Balane stated that they Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of
take note of this for inclusion in the Chapter on Use of Surnames since in the proposed the mother should immediately precede the surname of the father.
Article (10) they are just enumerating the rights of legitimate children so that the details
can be covered in the appropriate chapter. Additionally, as aptly stated by both parties, Stephanie’s continued use of her mother’s
surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted
xxx that Article 189(3) of the Family Code and Section 1824, Article V of RA 8552 (law on
adoption) provide that the adoptee remains an intestate heir of his/her biological parent.
Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in
that the surname of the father should always be last because there are so many traditions the future.
like the American tradition where they like to use their second given name and the Latin
tradition, which is also followed by the Chinese wherein they even include the Clan name. Moreover, records show that Stephanie and her mother are living together in the house
built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides
xxx for all their needs. Stephanie is closely attached to both her mother and father. She calls
them "Mama" and "Papa". Indeed, they are one normal happy family. Hence, to allow
Justice Puno suggested that they agree in principle that in the Chapter on the Use of Stephanie to use her mother’s surname as her middle name will not only sustain her
Surnames, they should say that initial or surname of the mother should immediately continued loving relationship with her mother but will also eliminate the stigma of her
precede the surname of the father so that the second name, if any, will be before the illegitimacy.
surname of the mother. Prof. Balane added that this is really the Filipino way. The
Committee approved the suggestion."12 (Emphasis supplied) Liberal Construction of

In the case of an adopted child, the law provides that "the adopted shall bear the surname Adoption Statutes In Favor Of
of the adopters."13 Again, it is silent whether he can use a middle name. What it only
expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname Adoption –
of the adopter, upon issuance of the decree of adoption.14
It is a settled rule that adoption statutes, being humane and salutary, should be liberally
The Underlying Intent of construed to carry out the beneficent purposes of adoption.25 The interests and welfare of
the adopted child are of primary and paramount consideration,26 hence, every reasonable
Adoption Is In Favor of the intendment should be sustained to promote and fulfill these noble and compassionate
objectives of the law.27
Adopted Child –
Lastly, Art. 10 of the New Civil Code provides that:
Adoption is defined as the process of making a child, whether related or not to the adopter,
possess in general, the rights accorded to a legitimate child.15 It is a juridical act, a "In case of doubt in the interpretation or application of laws, it is presumed that the
proceeding in rem which creates between two persons a relationship similar to that which lawmaking body intended right and justice to prevail."
results from legitimate paternity and filiation.16 The modern trend is to consider adoption
not merely as an act to establish a relationship of paternity and filiation, but also as an act This provision, according to the Code Commission, "is necessary so that it may tip the
which endows the child with a legitimate status.17 This was, indeed, confirmed in 1989, scales in favor of right and justice when the law is doubtful or obscure. It will strengthen
when the Philippines, as a State Party to the Convention of the Rights of the Child initiated the determination of the courts to avoid an injustice which may apparently be authorized
by some way of interpreting the law."28

Hence, since there is no law prohibiting an illegitimate child adopted by her natural father,
like Stephanie, to use, as middle name her mother’s surname, we find no reason why she
should not be allowed to do so.

WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the
sense that Stephanie should be allowed to use her mother’s surname "GARCIA" as her
middle name.

Let the corresponding entry of her correct and complete name be entered in the decree of
adoption.

SO ORDERED.

Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.


Republic of the Philippines
SUPREME COURT The minors Dionesio, Jr. and Bombi Roberto, who are presumably legitimate, are supposed
Manila to bear principally the surname Divinagracia, their father's surname (Art. 364, Civil Code).

SECOND DIVISION To allow them, at their mother's behest, to bear only their mother's surname (which they
are entitled to use together with their father's surname) and to discard altogether their
G.R. No. L-55538 March 15, 1982 father's surname thus removing the prima-facie evidence of their paternal provenance or
ancestry, is a serious matter in which, ordinarily, the minors and their father should be
In the Matter of the Change of Names of DIONESIO DIVINAGRACIA, JR., and BOMBI consulted. The mother's desire should not be the sole consideration.
ROBERTO DIVINAGRACIA to DIONESIO NALDOZA and BOMBI ROBERTO NALDOZA,
respectively. ZOSIMA NALDOZA, as natural guardian and guardian ad litem of said The change of name is allowed only when there are proper and reasonable causes for such
minors, petitioner-appellant, change (Sec. 5, Rule 103, Rules of Court). Where, as in this case, the petitioners are minors,
vs. the courts should take into account whether the change of name would redound their
REPUBLIC OF THE PHILIPPINES and JUDGE FERNANDO S. RUIZ of the Court of First welfare or would prejudice them.
Instance of Bohol, Branch IV, respondents-appellees.
Where the petitioner, a legitimate daughter of a Filipino mother and a Japanese, elected
Philippine citizenship, and her older brother and sister were using their mother's surname,
and the petitioner felt embarrassed in using her Japanese father's surname (Oshita)
AQUINO, J.: because of the ill-feeling harbored by some Filipinos against the Japanese, and there was
no showing that her desire to use the maternal surname (Bartolome) was motivated by any
The issue in this case is whether two minors should be allowed to discontinue using their fraudulent purpose or that the change of surname would prejudice public interest, her
father's surname and should use only their mother's surname. petition to change her surname from Oshita to Bartolome was granted (Oshita vs. Republic,
L-21180, March 31, 1967, 19 SCRA 700).
Zosima Naldoza was married to Dionesio Divinagracia on May 30, 1970. They begot two
children named Dionesio, Jr. and Bombi Roberto who were born on October 23, 1970 and Where the petitioner's name in the civil registry is Maria Estrella Veronica Primitiva
July 22, 1973, respectively. Duterte, Duterte being the surname of her father Filomeno, who was married to her
mother, Estrella Alfon, but the petitioner since infancy has used the name Estrella S. Alfon,
Zosima's husband left her after she confronted him with his previous marriage with particularly in the school and voting records, there is reasonable ground for allowing her to
another woman. He never returned to the conjugal abode. He allegedly swindled change her surname from Duterte to Alfon. Such a change would avoid confusion (Alfon vs.
Congressman Maglana in the sum of P50,000.00, one Galagar in the sum of P10,000.00 also Republic, G.R. No. 51201, May 29, 1980,97 SCRA 858).
Eloy Gallentes and other persons.
The instant case is easily distinguishable from the Oshita and AIfon cases where the
The classmates of Dionesio, Jr. and Bombi Roberto allegedly teased them about their father petitioners were already of age.
being a swindler. Two criminal cases for estafa were filed in court against the father.
We hold that the trial court did not err in denying the petition for change of name. The
Desirous of obliterating any connection between her two minor children and their reasons adduced for eliminating the father's surname are not substantial enough to justify
scapegrace father, Zosima, on August 10, 1978, filed in the Court of First Instance of Bohol the petition. To allow the change of surname would cause confusion as to the minors'
a petition wherein she prayed that the surname of her two children be changed from parentage and might create the impression that the minors are illegitimate since they
Divinagracia to Naldoza, her surname (Special Proceeding No. 768). After due publication would carry the maternal surname only. That would be inconsistent with their legitimate
and hearing, the trial court dismissed the petition. status as indicated in their birth records (Exh. C and D).

The trial court did not consider as sufficient grounds for change of surname the As was said in that In re Epstein 200 N.Y.S. 897, "the child should, and in the course of time
circumstances that the children's father was a swindler, that he had abandoned them and must, know of his parentage. " If, when he fully appreciates the circumstances and is
that his marriage to Zosima was a second marriage which, however, had not been annulled capable of selecting a name for himself, he wants to use his mother's surname only and to
nor declared bigamous. It reasoned that the children's adoption of their mother's surname avoid using his father's surname, then he should be the one to apply for a change of
would give a false impression of family relationship. surname. See Anno., 53 ALR2d 914.

From that decision, Zosima Naldoza appealed to this Court under Republic Act No. 5440. WHEREFORE, the lower court's decision is affirmed. No costs.
Appellant's seven assignments of error may be reduced to the question of whether there is
a justification for the two children to drop their father's surname and use their mother's SO ORDERED.
surname only.
Concepcion, Jr., Abad Santos, De Castro, Ericta and Escolin JJ., concur.

Separate Opinions

BARREDO, J., concurring:

At the worst, Dionesio Jr. and Bombito should be considered as natural children by legal
fiction having the same status, rights and obligations of acknowledged natural children,
(Art. 29, Civil Code). among which is the right to bear the surname of their father. (Art. 28
(1), Civil Code).

Separate Opinions

BARREDO, J., concurring:

At the worst, Dionesio Jr. and Bombito should be considered as natural children by legal
fiction having the same status, rights and obligations of acknowledged natural children,
(Art. 29, Civil Code). among which is the right to bear the surname of their father. (Art. 28
(1), Civil Code).
EN BANC Ordering parties to give and share the support of the minor children Andre Lewis
Grande and Jerard Patrick Grande in the amount of P30,000 per month at the rate of 70%
G.R. No. 206248, February 18, 2014 for [Antonio] and 30% for [Grande].7 (Emphasis supplied.)

GRACE M. GRANDE, Petitioner, v. PATRICIO T. ANTONIO, Respondent. Aggrieved, petitioner Grande moved for reconsideration. However, her motion was denied
by the trial court in its Resolution dated November 22, 20108 for being pro forma and for
DECISION lack of merit.

VELASCO JR., J.: Petitioner Grande then filed an appeal with the CA attributing grave error on the part of
Before this Court is a Petition for Review on Certiorari under Rule 45, assailing the July 24, the RTC for allegedly ruling contrary to the law and jurisprudence respecting the grant of
2012 Decision1 and March 5, 2013 Resolution2 of the Court of Appeals (CA) in CA–G.R. CV sole custody to the mother over her illegitimate children.9 In resolving the appeal, the
No. 96406. appellate court modified in part the Decision of the RTC. The dispositive portion of the CA
Decision reads:
As culled from the records, the facts of this case are:
WHEREFORE, the appeal is partly GRANTED. Accordingly, the appealed Decision of the
Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio) for a period Regional Trial Court Branch 8, Aparri Cagayan in SP Proc. Case No. 11–4492 is MODIFIED
of time lived together as husband and wife, although Antonio was at that time already in part and shall hereinafter read as follows:
married to someone else.3 Out of this illicit relationship, two sons were born: Andre Lewis
(on February 8, 1998) and Jerard Patrick (on October 13, 1999).4 The children were not The Offices of the Civil Registrar General and the City Civil Registrar of Makati City are
expressly recognized by respondent as his own in the Record of Births of the children in DIRECTED to enter the surname Antonio as the surname of Jerard Patrick and Andre
the Civil Registry. The parties’ relationship, however, eventually turned sour, and Grande Lewis, in their respective certificates of live birth, and record the same in the Register of
left for the United States with her two children in May 2007. This prompted respondent Births;
Antonio to file a Petition for Judicial Approval of Recognition with Prayer to take Parental [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre Lewis to
Authority, Parental Physical Custody, Correction/Change of Surname of Minors and for the the custody of their mother herein appellant, Grace Grande who by virtue hereof is hereby
Issuance of Writ of Preliminary Injunction before the Regional Trial Court, Branch 8 of awarded the full or sole custody of these minor children;
Aparri, Cagayan (RTC), appending a notarized Deed of Voluntary Recognition of Paternity [Antonio] shall have visitorial rights at least twice a week, and may only take the
of the children.5 children out upon the written consent of [Grande]; and
The parties are DIRECTED to give and share in support of the minor children Jerard
On September 28, 2010, the RTC rendered a Decision in favor of herein respondent Patrick and Andre Lewis in the amount of P30,000.00 per month at the rate of 70% for
Antonio, ruling that “[t]he evidence at hand is overwhelming that the best interest of the [Antonio] and 30% for [Grande]. (Emphasis supplied.)
children can be promoted if they are under the sole parental authority and physical
custody of [respondent Antonio].”6 Thus, the court a quo decreed the following: In ruling thus, the appellate court ratiocinated that notwithstanding the father’s
recognition of his children, the mother cannot be deprived of her sole parental custody
WHEREFORE, foregoing premises considered, the Court hereby grants [Antonio’s] prayer over them absent the most compelling of reasons.10 Since respondent Antonio failed to
for recognition and the same is hereby judicially approved. x x x Consequently, the Court prove that petitioner Grande committed any act that adversely affected the welfare of the
forthwith issues the following Order granting the other reliefs sought in the Petition, to wit: children or rendered her unsuitable to raise the minors, she cannot be deprived of her sole
parental custody over their children.
Ordering the Office of the City Registrar of the City of Makati to cause the entry of the
name of [Antonio] as the father of the aforementioned minors in their respective The appellate court, however, maintained that the legal consequence of the recognition
Certificate of Live Birth and causing the correction/change and/or annotation of the made by respondent Antonio that he is the father of the minors, taken in conjunction with
surnames of said minors in their Certificate of Live Birth from Grande to Antonio; the universally protected “best–interest–of–the–child” clause, compels the use by the
Granting [Antonio] the right to jointly exercise Parental Authority with [Grande] over children of the surname “ANTONIO.”11
the persons of their minor children, Andre Lewis Grande and Jerard Patrick Grande;
Granting [Antonio] primary right and immediate custody over the parties’ minor As to the issue of support, the CA held that the grant is legally in order considering that not
children Andre Lewis Grandre and Jerard Patrick Grande who shall stay with [Antonio’s] only did Antonio express his willingness to give support, it is also a consequence of his
residence in the Philippines from Monday until Friday evening and to [Grande’s] custody acknowledging the paternity of the minor children.12 Lastly, the CA ruled that there is no
from Saturday to Sunday evening; reason to deprive respondent Antonio of his visitorial right especially in view of the
Ordering [Grande] to immediately surrender the persons and custody of minors Andre constitutionally inherent and natural right of parents over their children.13
Lewis Grande and Jerard Patrick Grande unto [Antonio] for the days covered by the Order;
Ordering parties to cease and desist from bringing the aforenamed minors outside of Not satisfied with the CA’s Decision, petitioner Grande interposed a partial motion for
the country, without the written consent of the other and permission from the court. reconsideration, particularly assailing the order of the CA insofar as it decreed the change
of the minors’ surname to “Antonio.” When her motion was denied, petitioner came to this Clearly, there is none. Otherwise, the order or ruling will contravene the explicit and
Court via the present petition. In it, she posits that Article 176 of the Family Code––as unequivocal provision of Art. 176 of the Family Code, as amended by RA 9255.
amended by Republic Act No. (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 Art. 176 gives illegitimate children the right to decide if they want to use the surname of
the consent of their mother. 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
We find the present petition impressed with merit. children.

The sole issue at hand is the right of a father to compel the use of his surname by his Nothing is more settled than that when the law is clear and free from ambiguity, it must be
illegitimate children upon his recognition of their filiation. Central to the core issue is the taken to mean what it says and it must be given its literal meaning free from any
application of Art. 176 of the Family Code, originally phrased as follows: interpretation.16 Respondent’s position that the court can order the minors to use his
surname, therefore, has no legal basis.
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. The legitime of On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity,
each illegitimate child shall consist of one–half of the legitime of a legitimate child. Except one must abide by its words. The use of the word “may” in the provision readily shows that
for this modification, all other provisions in the Civil Code governing successional rights an acknowledged illegitimate child is under no compulsion to use the surname of his
shall remain in force. illegitimate father. The word “may” is permissive and operates to confer discretion17 upon
the illegitimate children.
This provision was later amended on March 19, 2004 by RA 925514 which now reads:
It is best to emphasize once again that the yardstick by which policies affecting children are
Art. 176. – Illegitimate children shall use the surname and shall be under the parental to be measured is their best interest. On the matter of children’s surnames, this Court has,
authority of their mother, and shall be entitled to support in conformity with this Code. time and again, rebuffed the idea that the use of the father’s surname serves the best
However, illegitimate children may use the surname of their father if their filiation has interest of the minor child. In Alfon v. Republic,18 for instance, this Court allowed even a
been expressly recognized by their father through the record of birth appearing in the civil legitimate child to continue using the surname of her mother rather than that of her
register, or when an admission in a public document or private handwritten instrument is legitimate father as it serves her best interest and there is no legal obstacle to prevent her
made by the father. Provided, the father has the right to institute an action before the from using the surname of her mother to which she is entitled. In fact, in Calderon v.
regular courts to prove non–filiation during his lifetime. The legitime of each illegitimate Republic,19 this Court, upholding the best interest of the child concerned, even allowed the
child shall consist of one–half of the legitime of a legitimate child. (Emphasis supplied.) 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
From the foregoing provisions, it is clear that the general rule is that an illegitimate child child be placed in the best possible situation considering his circumstances.
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 In Republic of the Philippines v. Capote,20 We gave due deference to the choice of an
appearing in the civil register or when an admission in a public document or private illegitimate minor to use the surname of his mother as it would best serve his interest,
handwritten instrument is made by the father. In such a situation, the illegitimate child thus:
may use the surname of the father.
The foregoing discussion establishes the significant connection of a person’s name to his
In the case at bar, respondent filed a petition for judicial approval of recognition of the identity, his status in relation to his parents and his successional rights as a legitimate or
filiation of the two children with the prayer for the correction or change of the surname of illegitimate child. For sure, these matters should not be taken lightly as to deprive those
the minors from Grande to Antonio when a public document acknowledged before a notary who may, in any way, be affected by the right to present evidence in favor of or against such
public under Sec. 19, Rule 132 of the Rules of Court15 is enough to establish the paternity change.
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. The law and facts obtaining here favor Giovanni’s petition. Giovanni availed of the proper
remedy, a petition for change of name under Rule 103 of the Rules of Court, and complied
Parental authority over minor children is lodged by Art. 176 on the mother; hence, with all the procedural requirements. After hearing, the trial court found (and the appellate
respondent’s prayer has no legal mooring. Since parental authority is given to the mother, court affirmed) that the evidence presented during the hearing of Giovanni’s petition
then custody over the minor children also goes to the mother, unless she is shown to be sufficiently established that, under Art. 176 of the Civil Code, Giovanni is entitled to change
unfit. his name as he was never recognized by his father while his mother has always recognized
him as her child. A change of name will erase the impression that he was ever recognized
Now comes the matter of the change of surname of the illegitimate children. Is there a legal by his father. It is also to his best interest as it will facilitate his mother’s intended petition
basis for the court a quo to order the change of the surname to that of respondent? to have him join her in the United States. This Court will not stand in the way of the
reunification of mother and son. (Emphasis supplied.)
An argument, however, may be advanced advocating the mandatory use of the father’s “The surname of the child is hereby changed from (original surname) to (new
surname upon his recognition of his illegitimate children, citing the Implementing Rules surname) pursuant to RA 9255.”
and Regulations (IRR) of RA 9255,21 which states:
The original surname of the child appearing in the Certificate of Live Birth and Register
Rule 7. Requirements for the Child to Use the Surname of the Father of Births shall not be changed or deleted.

7.1 For Births Not Yet Registered 8.2.2 If filiation was not expressly recognized at the time of registration, the public
document or AUSF shall be recorded in the Register of Legal Instruments. Proper
7.1.1 The illegitimate child shall use the surname of the father if a public document is annotation shall be made in the Certificate of Live Birth and the Register of Births as
executed by the father, either at the back of the Certificate of Live Birth or in a separate follows:
document.
“Acknowledged by (name of father) on (date). The surname of the child is hereby
7.1.2 If admission of paternity is made through a private instrument, the child shall use changed from (original surname) on (date) pursuant to RA 9255.” (Emphasis supplied.)
the surname of the father, provided the registration is supported by the following
documents: Nonetheless, the hornbook rule is that an administrative issuance cannot amend a
legislative act. In MCC Industrial Sales Corp. v. Ssangyong Corporation,22 We held:
xxxx
After all, the power of administrative officials to promulgate rules in the implementation
7.2. For Births Previously Registered under the Surname of the Mother of a statute is necessarily limited to what is found in the legislative enactment itself. The
implementing rules and regulations of a law cannot extend the law or expand its coverage,
7.2.1 If filiation has been expressly recognized by the father, the child shall use the as the power to amend or repeal a statute is vested in the Legislature. Thus, if a
surname of the father upon the submission of the accomplished AUSF [Affidavit of Use of discrepancy occurs between the basic law and an implementing rule or regulation, it is the
the Surname of the Father]. former that prevails, because the law cannot be broadened by a mere administrative
issuance — an administrative agency certainly cannot amend an act of Congress.
7.2.2 If filiation has not been expressly recognized by the father, the child shall use the
surname of the father upon submission of a public document or a private handwritten Thus, We can disregard contemporaneous construction where there is no ambiguity in law
instrument supported by the documents listed in Rule 7.1.2. and/or the construction is clearly erroneous.23 What is more, this Court has the
constitutional prerogative and authority to strike down and declare as void the rules of
7.3 Except in Item 7.2.1, the consent of the illegitimate child is required if he/she has procedure of special courts and quasi–judicial bodies24 when found contrary to statutes
reached the age of majority. The consent may be contained in a separate instrument duly and/or the Constitution.25 Section 5(5), Art. VIII of the Constitution provides:
notarized.
Sec. 5. The Supreme Court shall have the following powers:
xxxx
xxxx
Rule 8. Effects of Recognition
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
8.1 For Births Not Yet Registered pleading, practice and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a
8.1.1 The surname of the father shall be entered as the last name of the child in the simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform
Certificate of Live Birth. The Certificate of Live Birth shall be recorded in the Register of for all courts of the same grade, and shall not diminish, increase, or modify substantive
Births. rights. Rules of procedure of special courts and quasi–judicial bodies shall remain effective
unless disapproved by the Supreme Court. (Emphasis supplied.)
xxxx
Thus, We exercise this power in voiding the above–quoted provisions of the IRR of RA 9255
8.2 For Births Previously Registered under the Surname of the Mother insofar as it provides the mandatory use by illegitimate children of their father’s surname
upon the latter’s recognition of his paternity.
8.2.1 If admission of paternity was made either at the back of the Certificate of Live Birth
or in a separate public document or in a private handwritten document, the public To conclude, the use of the word “shall” in the IRR of RA 9255 is of no moment. The clear,
document or AUSF shall be recorded in the Register of Live Birth and the Register of Births unambiguous, and unequivocal use of “may” in Art. 176 rendering the use of an illegitimate
as follows: father’s surname discretionary controls, and illegitimate children are given the choice on
the surnames by which they will be known.

At this juncture, We take note of the letters submitted by the children, now aged thirteen
(13) and fifteen (15) years old, to this Court declaring their opposition to have their names
changed to “Antonio.”26 However, since these letters were not offered before and evaluated
by the trial court, they do not provide any evidentiary weight to sway this Court to rule for
or against petitioner.27 A proper inquiry into, and evaluation of the evidence of, the
children’s choice of surname by the trial court is necessary.

WHEREFORE, the instant petition is PARTIALLY GRANTED. The July 24, 2012 Decision of
the Court of Appeals in CA–G.R. CV No. 96406 is MODIFIED, the dispositive portion of
which shall read:

WHEREFORE, the appeal is partly GRANTED. Accordingly, the appealed Decision of the
Regional Trial Court Branch 8, Aparri Cagayan in SP Proc. Case No. 11–4492 is MODIFIED
in part and shall hereinafter read as follows:

[Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre Lewis to
the custody of their mother herein appellant, Grace Grande who by virtue hereof is hereby
awarded the full or sole custody of these minor children;
[Antonio] shall have visitation rights28 at least twice a week, and may only take the
children out upon the written consent of [Grande];
The parties are DIRECTED to give and share in support of the minor children Jerard
Patrick and Andre Lewis in the amount of P30,000.00 per month at the rate of 70% for
[Antonio] and 30% for [Grande]; and
The case is REMANDED to the Regional Trial Court, Branch 8 of Aparri, Cagayan for the
sole purpose of determining the surname to be chosen by the children Jerard Patrick and
Andre Lewis.

Rule 7 and Rule 8 of the Office of the Civil Registrar General Administrative Order No. 1,
Series of 2004 are DISAPPROVED and hereby declared NULL and VOID.

SO ORDERED.

Sereno, C.J., Carpio, Leonardo–De Castro, Peralta, Bersamin, Del Castillo, Abad, Villarama,
Jr., Perez, Reyes, Perlas–Bernabe, and Leonen, JJ., concur.

Brion, J., on leave.

Mendoza, J., no part.


THIRD DIVISION despite the fact that the controversy arose when the New Civil Code was the law in force.

[G.R. No. 136467. April 6, 2000] "2. The trial court erred in holding that the marriage between oppositor-appellant and the
deceased Teodorico Calisterio is bigamous for failure of the former to secure a decree of
ANTONIA ARMAS Y CALISTERIO, petitioner, vs. MARIETTA CALISTERIO, respondent. the presumptive death of her first spouse.

DECISION "3. The trial court erred in not holding that the property situated at No. 32 Batangas Street,
San Francisco del Monte, Quezon City, is the conjugal property of the oppositor-appellant
VITUG, J.: and the deceased Teodorico Calisterio. Esmso

On 24 April 1992, Teodorico Calisterio died intestate, leaving several parcels of land with "4. The trial court erred in holding that oppositor-appellant is not a legal heir of deceased
an estimated value of P604,750.00. Teodorico was survived by his wife, herein respondent Teodorico Calisterio.
Marietta Calisterio. Esm
"5. The trial court erred in not holding that letters of administration should be granted
Teodorico was the second husband of Marietta who had previously been married to James solely in favor of oppositor-appellant."[2]
William Bounds on 13 January 1946 at Caloocan City. James Bounds disappeared without a
trace on 11 February 1947. Teodorico and Marietta were married eleven years later, or on On 31 August 1998, the appellate court, through Mr. Justice Conrado M. Vasquez, Jr.,
08 May 1958, without Marietta having priorly secured a court declaration that James was promulgated its now assailed decision, thus:
presumptively dead. Esmsc
"IN VIEW OF ALL THE FOREGOING, the Decision appealed from is REVERSED AND SET
On 09 October 1992, herein petitioner Antonia Armas y Calisterio, a surviving sister of ASIDE, and a new one entered declaring as follows:
Teodorico, filed with the Regional Trial Court ("RTC") of Quezon City, Branch 104, a
petition entitled, "In the Matter of Intestate Estate of the Deceased Teodorico Calisterio y "(a) Marietta Calisterio's marriage to Teodorico remains valid;
Cacabelos, Antonia Armas, Petitioner," claiming to be inter alia, the sole surviving heir of
Teodorico Calisterio, the marriage between the latter and respondent Marietta Espinosa "(b) The house and lot situated at #32 Batangas Street, San Francisco del Monte, Quezon
Calisterio being allegedly bigamous and thereby null and void. She prayed that her son City, belong to the conjugal partnership property with the concomitant obligation of the
Sinfroniano C. Armas, Jr., be appointed administrator, without bond, of the estate of the partnership to pay the value of the land to Teodorico's estate as of the time of the taking;
deceased and that the inheritance be adjudicated to her after all the obligations of the
estate would have been settled. "(c) Marietta Calisterio, being Teodorico's compulsory heir, is entitled to one half of her
husband's estate, and Teodorico's sister, herein petitioner Antonia Armas and her children,
Respondent Marietta opposed the petition. Marietta stated that her first marriage with to the other half; Msesm
James Bounds had been dissolved due to the latter's absence, his whereabouts being
unknown, for more than eleven years before she contracted her second marriage with "(d) The trial court is ordered to determine the competence of Marietta E. Calisterio to act
Teodorico. Contending to be the surviving spouse of Teodorico, she sought priority in the as administrator of Teodorico's estate, and if so found competent and willing, that she be
administration of the estate of the decedent. Esmmis appointed as such; otherwise, to determine who among the deceased's next of kin is
competent and willing to become the administrator of the estate."[3]
On 05 February 1993, the trial court issued an order appointing jointly Sinfroniano C.
Armas, Jr., and respondent Marietta administrator and administratrix, respectively, of the On 23 November 1998, the Court of Appeals denied petitioner's motion for
intestate estate of Teodorico. reconsideration, prompting her to interpose the present appeal. Petitioner asseverates:

On 17 January 1996, the lower court handed down its decision in favor of petitioner "It is respectfully submitted that the decision of the Court of Appeals reversing and setting
Antonia; it adjudged: aside the decision of the trial court is not in accord with the law or with the applicable
decisions of this Honorable Court."[4]
"WHEREFORE, judgment is hereby rendered finding for the petitioner and against the
oppositor whereby herein petitioner, Antonia Armas y Calisterio, is declared as the sole It is evident that the basic issue focuses on the validity of the marriage between the
heir of the estate of Teodorico Calisterio y Cacabelos."[1] deceased Teodorico and respondent Marietta, that, in turn, would be determinative of her
right as a surviving spouse. Exsm
Respondent Marietta appealed the decision of the trial court to the Court of Appeals,
formulating that- The marriage between the deceased Teodorico and respondent Marietta was solemnized
on 08 May 1958. The law in force at that time was the Civil Code, not the Family Code
"1. The trial court erred in applying the provisions of the Family Code in the instant case which took effect only on 03 August 1988. Article 256 of the Family Code[5] itself limited
its retroactive governance only to cases where it thereby would not prejudice or impair second marriage, having been contracted during the regime of the Civil Code, should thus
vested or acquired rights in accordance with the Civil Code or other laws. be deemed valid notwithstanding the absence of a judicial declaration of presumptive
death of James Bounds.
Verily, the applicable specific provision in the instant controversy is Article 83 of the New
Civil Code which provides: Kyle The conjugal property of Teodorico and Marietta, no evidence having been adduced to
indicate another property regime between the spouses, pertains to them in common. Upon
"Art. 83. Any marriage subsequently contracted by any person during the lifetime of the its dissolution with the death of Teodorico, the property should rightly be divided in two
first spouse of such person with any person other than such first spouse shall be illegal and equal portions -- one portion going to the surviving spouse and the other portion to the
void from its performance, unless: estate of the deceased spouse. The successional right in intestacy of a surviving spouse
over the net estate[11] of the deceased, concurring with legitimate brothers and sisters or
"(1) The first marriage was annulled or dissolved; or nephews and nieces (the latter by right of representation), is one-half of the inheritance,
the brothers and sisters or nephews and nieces, being entitled to the other half. Nephews
"(2) The first spouse had been absent for seven consecutive years at the time of the second and nieces, however, can only succeed by right of representation in the presence of uncles
marriage without the spouse present having news of the absentee being alive, or if the and aunts; alone, upon the other hand, nephews and nieces can succeed in their own right
absentee, though he has been absent for less than seven years, is generally considered as which is to say that brothers or sisters exclude nephews and nieces except only in
dead and believed to be so by the spouse present at the time of contracting such representation by the latter of their parents who predecease or are incapacitated to
subsequent marriage, or if the absentee is presumed dead according to articles 390 and succeed. The appellate court has thus erred in granting, in paragraph (c) of the dispositive
391. The marriage so contracted shall be valid in any of the three cases until declared null portion of its judgment, successional rights, to petitioner's children, along with their own
and void by a competent court." mother Antonia who herself is invoking successional rights over the estate of her deceased
brother. Slx
Under the foregoing provisions, a subsequent marriage contracted during the lifetime of
the first spouse is illegal and void ab initio unless the prior marriage is first annulled or WHEREFORE, the assailed judgment of the Coin of Appeals in CA G.R. CV No. 51574 is
dissolved. Paragraph (2) of the law gives exceptions from the above rule. For the AFFIRMED except insofar only as it decreed in paragraph (c) of the dispositive portion
subsequent marriage referred to in the three exceptional cases therein provided, to be held thereof that the children of petitioner are likewise entitled, along with her, to the other half
valid, the spouse present (not the absentee spouse) so contracting the later marriage must of the inheritance, in lieu of which, it is hereby DECLARED that said one-half share of the
have done so in good faith.[6] Bad faith imports a dishonest purpose or some moral decedent's estate pertains solely to petitioner to the exclusion of her own children. No
obliquity and conscious doing of wrong - it partakes of the nature of fraud, a breach of a costs.
known duty through some motive of interest or ill will.[7] The Court does not find these
circumstances to be here extant. Kycalr SO ORDERED.

A judicial declaration of absence of the absentee spouse is not necessary[8] as long as the Melo, (Chairman), Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.
prescribed period of absence is met. It is equally noteworthy that the marriage in these
exceptional cases are, by the explicit mandate of Article 83, to be deemed valid "until
declared null and void by a competent court." It follows that the burden of proof would be,
in these cases, on the party assailing the second marriage. Calrky

In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage
may exceptionally be considered valid, the following conditions must concur; viz.: (a) The
prior spouse of the contracting party must have been absent for four consecutive years, or
two years where there is danger of death under the circumstances stated in Article 391 of
the Civil Code at the time of disappearance; (b) the spouse present has a well-founded
belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial
declaration of presumptive death of the absentee for which purpose the spouse present
can institute a summary proceeding in court to ask for that declaration. The last condition
is consistent and in consonance with the requirement of judicial intervention in
subsequent marriages as so provided in Article 41[9], in relation to Article 40,[10] of the
Family Code. Mesm

In the case at bar, it remained undisputed that respondent Marietta's first husband, James
William Bounds, had been absent or had disappeared for more than eleven years before
she entered into a second marriage in 1958 with the deceased Teodorico Calisterio. This

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