Child recognized by father may use his surname

Child recognized by father may use his surname "I am the mother of an eight-month-old baby boy. His father and I are not married but we are living together as a couple. His father wants to acknowledge my child and he wants our baby to use his surname. I actually agreed to this, but the issue is that my partner is legally married. He got married in 2002 but they already separated in 2004. I just want to know if it’s possible for our baby to use his father’s surname, even if he’s married. Is it possible for my partner’s ex-wife to file a case against me and my partner knowing that he admitted paternity to our baby? Please help me. Ms. A Dear Ms. A,Under the law, an illegitimate child shall use his/her mother’s surname. However, if he/she was recognized by his/her father, he/she may use the latter’s surname. This is what Article 176 of the Family Code of the Philippines as Amended by Republic Act (R.A.) No. 9255 provides, to wit: “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. xxx”The abovementioned provision squarely answers your question insofar as the use of your child’s surname is concerned. He may use his father’s surname as soon as he/she is acknowledged as the former’s child. There are some requirements though that has to be accomplished so that your child may start using his/her father’s surname. One of which is the execution of Affidavit to Use the Surname of the Father (AUSF). This is in accordance with the Implementing Rules and Regulations of RA No. 9255 which provides: “Rule 7. Requirements for the Child to Use the Surname of the Father7.1 For Births Not Yet Registered xxx7.1.2 If admission of paternity is made through a private handwritten instrument, the child shall use the surname of the father, provided the registration is supported by the following documents:a. AUSFb. Consent of the child, if 18 years old and over at the time of the filing of the document c. Any two of the following documents showing clearly the paternity between the father and the child:1) Employment records2) SSS/GSIS records3) Insurance4) Certification of membership in any organization5) Statement of Assets and Liabilities6) Income Tax Return (ITR)7.2 For Births Previously Registered under the Surname of the Mother7.2.1 If filiation has been expressly recognized by the father, the child shall use the surname of the father upon the submission of the accomplished AUSF.7.2.2 If filiation has not been expressly recognized by the father, the child shall use the surname of father upon submission of a public document or a private handwritten instrument supported by the documents listed in Rule 7.1.2.xxx”Assuming that your child was already registered, the above provisions must be complied with for the child to be able to use his/her father’s surname. With regard to your second question, the possibility of being sued is not remote considering that you are cohabiting with a married man. The child’s recognition by his/her father, if ever, will only show evidence that you and the latter had an affair. Besides, whether or not the child was acknowledged, if the legal wife is determined on filing a criminal case against you and her husband, she has the right to do so. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.We hope that we were able to guide you with our opinion on the matter.Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net" - https://www.affordablecebu.com/