OFFICE OF THE GENERAL COUNSEL

AND LEGAL SERVICES

PATERNITY AND
FILIATION

Atty. Abigail M. Asiddao-Alcantara
Paternity and Filiation, Distinguished:

(i) Paternity is the civil status of a
father in relation to the child;

(ii) Filiation is the civil status
of a child in relation to his
or her parents.







Two Kinds of Filiation:

(i) By nature, which
includes artificial
insemination


(ii) By adoption


Status of Children
(1) Generally Determined by Status of Marriage

(a) Legitimate

(b) Illegitimate

(c) Legitimated

(d) Special case: children conceived of artificial
insemination

(2) Presumption of Legitimacy


Status of Children
Legitimate

If conceived or born during a valid
marriage

Status of Children
Illegitimate

If conceived or born outside of a valid
marriage

Status of Children
Legitimated

If the parents of the illegitimate child
were, at the time of the childs
conception, not legally barred from
marrying each other and subsequently do
so

Status of Children
Special case: Children conceived of
artificial insemination

Whether the sperm is that of the husband or that
of a donor, the child is legitimate if:

(i) Both the husband and the wife authorized or
ratified such insemination in a written instrument;
and

(ii) Such written instrument is executed and
signed by them before the birth of the child.

Presumption of Legitimacy

A child conceived or born during a valid
marriage is presumed to be legitimate.

* To protect innocent offspring from the stigma of
illegitimacy

* For this presumption to apply, there must be
convincing proof of factual basis that:

(i) the childs parents were legally married; and

(ii) his/her conception or birth during the
subsistence of that marriage

Presumption of Legitimacy

The husband and wife were separated in fact for many
years. During their separation de facto, the wife had an illicit
relation with another man, with whom she cohabited and had a
child. When the paramour died, the wife, on behalf of her child,
filed an action for compulsory recognition of the paramour for the
purpose of partaking in his vast estate.

The Supreme Court denied the action because the child is
presumed to be a legitimate child of the husband and wife, the
child being conceived and born during the couples valid marriage.

(Liyao, Jr. V. Tanhoti-Liyao, 378 SCRA 563 [2002])


Presumption of Legitimacy

The presumption of legitimacy will
not be affected even if the mother may
have declared against the childs
legitimacy or may have been sentenced
as an adulteress.

* This applies only to a situation where the wife
denies the paternity of the husband, and not where a
child is alleged not to be the biological child of the
couple.
Who can impugn the childs legitimacy?
The husband, or in exceptional cases, his
heirs.

Why?

The husband is the one directly
confronted with the scandal and ridicule
which the infidelity of his wife produces and
he should be the one to decide whether to
conceal that infidelity or expose it in view of
the moral and economic interest involved.

When can the heirs of the husband file an
action to impugn the legitimacy of a child?
(i) If husband dies before the expiration of
the prescriptive period;

(ii) If husband dies after the filing of the
action without desisting; and

(iii) If child was born after the death of the
husband.
Prescriptive Period of Action to Impugn
Legitimacy
From knowledge of birth or recording of
such birth in the civil register:

One (1) year- if husband, or in exceptional cases, any of his
heirs, resides in the city or municipality where birth took
place or was recorded;

Two (2) years- if husband, or in exceptional cases, any of his
heirs, does not reside at the place of birth or where it was
recorded, but all are not residing outside the Philippines;

Three (3) years- if husband, or in exceptional cases, any of
his heirs, resides abroad.
Grounds to Impugn Legitimacy
(1) Physical Impossibility of Sexual Intercourse
(within the period of conception or within the
first 120 days of the 300 days immediately
preceding the birth of the child)

(2) Biological or Scientific Reasons (Husband
Could Not be Father)

(3) In artificial insemination, written
authorization or ratification of either parent
was obtained thru mistake, fraud, violence,
intimidation or undue influence

Physical Impossibility of Sexual Intercourse

(a) Impotency (not sterility)

*Impotency: physical inability
to copulate; failure to have an erection

*Sterility: ability to procreate; failure
to have a child


Physical Impossibility of Sexual Intercourse

(b) Husband and wife living separately
and sexual intercourse impossible
(no physical access)

Physical Impossibility of Sexual Intercourse

(c) Serious illness of husband which
absolutely prevented sexual
intercourse

* Just because tuberculosis is advanced in a man does
not necessarily mean that he is incapable of sexual
intercourse. (Andal v. Macaraig, 89 Phil. 164 [1951)


Biological or Scientific Reasons

(a) Estoppel

* Husband expressly prohibited from assailing childs
legitimacy if he authorized or ratified such artificial
insemination in the manner required by law


Biological or Scientific Reasons

(b) Blood Testing

*conclusive on non-paternity

*inconclusive on paternity
(putative father a possible father
of the child)

Biological or Scientific Reasons

(c) DNA

*Genetic identity unique

Action to Prove Filiation

* Not subject to agreement of the
parties

*Must be judicially established

*Direct action


Accepted Proof of Filiation

(1) Record of Birth appearing in the
Civil Register or a Final Judgment

*Prima facie evidence of filiation

*Putative father must have a hand in the preparation
of birth certificate


Accepted Proof of Filiation

(2) Written admission of (legitimate or
illegitimate) filiation

*Notarial agreement to support a child

*Will


Accepted Proof of Filiation
Photographs
not sufficient evidence of acknowledgment

Letters
complimentary ending Su Padre, not indubitable
acknowledgment of paternity; merely indicates the
writers solicitude for the well-being of the child

Baptismal certificates
not proof of recognition; evidence only to prove the
administration of the sacraments on the dates therein
specified
Accepted Proof of Filiation

(3) Open and continuous possession of
status
*Uninterrupted and consistent; does not require any particular length
of time

*A showing of permanent intention of the supposed
Father to consider the child as his own
Accepted Proof of Filiation

(4) Any other means allowed by the
Rules of Court or Special laws

(a) DNA Test

(b) Blood Test



Accepted Proof of Filiation

(c) Physical resemblance: extremely
subjective test



Rights

LEGITIMATE CHILDREN

ILLEGITIMATE CHILDREN

1. To bear the
surname of the
father and mother

2. To receive support
from parents,
ascendants, and in
proper cases, their
brothers and sisters


1. To bear the surname
of the mother; may
optionally use the
surname of the
father if his/her
filiation has been
expressly recognized
in a public or private
document

2. To receive support in
conformity with the
Family Code

Rights
LEGITIMATE CHILDREN

ILLEGITIMATE CHILDREN
3. To be entitled to
their legitime and
other successional
rights

4. Primary beneficiaries
(SSS and GSIS)

5. Father entitled to
paternity leave (seven
[7] days with full pay)
3. To be entitled to
legitime which shall
consist of one-half of
the legitime of a
legitimate child

4. Not primary
beneficiaries

5. Father not entitled to
paternity leave


Illegitimate children shall be under the
parental authority only of their mother,
whether or not father admits paternity.

Effect of recognition of paternity by father:

(i) Support

(ii) Visitation rights (but not custody)
Adoption

(a) Juridical act

(b) Proceeding in rem

* The registered name of the adoptee in the birth
certificate and the names by which the adoptee had
been known must be stated in the caption of the
petition for adoption.

(c) Creates between two persons a
relationship similar to that which results
from legitimate paternity and filiation
Adoption


A mere ampon who was treated as a
child by a certain couple, though not
related to them by blood, is not
entitled to the same rights accorded to
legitimate children, in the absence of
a judicial decree of adoption.
Adoption
*Simulation of birth: the tampering of the civil registry
to make it appear in the birth certificate that a certain
child was born to a person who is not his/her biological
mother

*Does not produce the legal effects of adoption
Rules of Preference in Adoption

(1) Preference in favor of extended
family (over adoption by an unrelated
person)

(2) Preference in favor of domestic
adoption

* Inter-country adoption shall be resorted to only
when domestic adoption of the child is not available,
and inter-country adoption is in the best interest of the
child.

Effects of Domestic Adoption

(1) Transfer of parental authority

(2) Legitimacy

(3) Successional rights

(4) Issuance of new certificate and first
name and surname of adoptee

* Original certificate: stamped with cancelled

Adoption
May a person who already has children of his own
adopt?
Yes, provided he is in a position to support
and care for his children, legitimate or illegitimate,
in keeping with the means of the family, both
material and otherwise.
Adoption
May a person with adopted children still adopt
another child?

Yes, provided he is in a position to support
and care for his children, legitimate or illegitimate,
in keeping with the means of the family, both
material and otherwise.

Adoption
May a person adopt a close relative such as a
grandchild, or a brother or sister, or a step-child?

Yes, assuming that all the requisites of a
valid and effective adoption are present. The fact
that the adoption would result in a dual
relationship between the parties should not
prevent the adoption. One is by nature, while the
other is by legal fiction. (See Santos, Jr. v.
Republic, 21 SCRA 379 [1967]