SECOND DIVISION

[G.R. No. 159966. March 30, 2005]

IN

RE: PETITION FOR CHANGE OF NAME AND/OR

CORRECTION/CANCELLATION OF ENTRY IN CIVIL
REGISTRY OF JULIAN LIN CARULASAN WANG also
known
as
JULIAN
LIN
WANG,
to
be
amended/corrected as JULIAN LIN WANG, JULIAN LIN
WANG, duly represented by his mother ANNA LISA
WANG, petitioner, vs. CEBU CITY CIVIL REGISTRAR,
duly represented by the Registrar OSCAR B.
MOLO, respondent.
DECISION

TINGA, J.:
I will not blot out his name out of the book of life.
Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan Wang,
a minor, represented by his mother Anna Lisa Wang, filed a petition
dated 19 September 2002 for change of name and/or
correction/cancellation of entry in the Civil Registry of Julian Lin
Carulasan Wang. Petitioner sought to drop his middle name and
have his registered name changed from Julian Lin Carulasan Wang
to Julian Lin Wang.
The petition was docketed as Special Proceedings Case No.
11458 CEB and raffled to the Regional Trial Court (RTC) of Cebu
City, Branch 57.
The RTC established the following facts:
Julian Lin Carulasan Wang was born in Cebu City on February 20,
1998 to parents Anna Lisa Wang and Sing-Foe Wang who were then

not yet married to each other. When his parents subsequently got
married on September 22, 1998, ...they executed a deed of
legitimation of their son so that the childs name was changed from
Julian Lin Carulasan to Julian Lin Carulasan Wang.
The parents of Julian Lin Carulasan Wang plan to stay in Singapore
for a long time because they will let him study there together with
his sister named Wang Mei Jasmine who was born in Singapore.
Since in Singapore middle names or the maiden surname of the
mother are not carried in a persons name, they anticipate that
Julian Lin Carulasan Wang will be discriminated against because of
his current registered name which carries a middle name. Julian
and his sister might also be asking whether they are brother and
sister since they have different surnames. Carulasan sounds funny
in Singapores Mandarin language since they do not have the letter
R but if there is, they pronounce it as L. It is for these reasons
that the name of Julian Lin Carulasan Wang is requested to be
changed to Julian Lin Wang.[1]
On 30 April 2003, the RTC rendered a decision denying the
petition.[2] The trial court found that the reason given for the
change of name sought in the petitionthat is, that petitioner
Julian may be discriminated against when studies in Singapore
because of his middle namedid not fall within the grounds
recognized by law. The trial court ruled that the change sought is
merely for the convenience of the child. Since the State has an
interest in the name of a person, names cannot be changed to suit
the convenience of the bearers. Under Article 174 of the Family
Code, legitimate children have the right to bear the surnames of
the father and the mother, and there is no reason why this right
should now be taken from petitioner Julian, considering that he is
still a minor. The trial court added that when petitioner Julian
reaches the age of majority, he could then decide whether he will
change his name by dropping his middle name.[3]
Petitioner filed a motion for reconsideration of the decision but
this was denied in a resolution dated 20 May 2004. [4] The trial court
maintained that the Singaporean practice of not carrying a middle
name does not justify the dropping of the middle name of a
legitimate Filipino child who intends to study there. The dropping
of the middle name would be tantamount to giving due recognition
to or application of the laws of Singapore instead of Philippine law
which is controlling. That the change of name would not prejudice

public interest or would not be for a fraudulent purpose would not

suffice to grant the petition if the reason for the change of name is
itself not reasonable.[5]

Even assuming that it is customary in Singapore to drop the middle

name, it has also not been shown that the use of such middle
name is actually proscribed by Singaporean law.[13]

Petitioner then filed this Petition for Review on Certiorari

(Under Rule 45)[6] arguing that the trial court has decided a
question of substance not theretofore determined by the Court,
that is: whether or not dropping the middle name of a minor child
is contrary to Article 174 [7] of the Family Code. Petitioner contends
that [W]ith globalization and mixed marriages, there is a need for
the Supreme Court to rule on the matter of dropping of family
name for a child to adjust to his new environment, for consistency
and harmony among siblings, taking into consideration the best
interest of the child.[8] It is argued that convenience of the child is
a valid reason for changing the name as long as it will not
prejudice the State and others. Petitioner points out that the
middle name Carulasan will cause him undue embarrassment
and the difficulty in writing or pronouncing it will be an obstacle to
his social acceptance and integration in the Singaporean
community. Petitioner also alleges that it is error for the trial court
to have denied the petition for change of name until he had
reached the age of majority for him to decide the name to use,
contrary to previous cases[9] decided by this Court that allowed a
minor to petition for change of name.[10]

We affirm the decision of the trial court. The petition should

be denied.

The Court required the Office of the Solicitor General (OSG) to

comment on the petition. The OSG filed its Comment[11] positing
that the trial court correctly denied the petition for change of
name. The OSG argues that under Article 174 of the Family Code,
legitimate children have the right to bear the surnames of their
father and mother, and such right cannot be denied by the mere
expedient of dropping the same. According to the OSG, there is
also no showing that the dropping of the middle name Carulasan
is in the best interest of petitioner, since mere convenience is not
sufficient to support a petition for change of name and/or
cancellation of entry.[12] The OSG also adds that the petitioner has
not shown any compelling reason to justify the change of name or
the dropping of the middle name, for that matter. Petitioners
allegation that the continued use of the middle name may result in
confusion and difficulty is allegedly more imaginary than real. The
OSG reiterates its argument raised before the trial court that the
dropping of the childs middle name could only trigger much
deeper inquiries regarding the true parentage of petitioner. Hence,
while petitioner Julian has a sister named Jasmine Wei Wang, there
is no confusion since both use the surname of their father, Wang.

The Court has had occasion to express the view that the State
has an interest in the names borne by individuals and entities for
purposes of identification, and that a change of name is a privilege
and not a right, so that before a person can be authorized to
change his name given him either in his certificate of birth or civil
registry, he must show proper or reasonable cause, or any
compelling reason which may justify such change. Otherwise, the
request should be denied.[14]
The touchstone for the grant of a change of name is that there
be proper and reasonable cause for which the change is sought.
[15]
To justify a request for change of name, petitioner must show
not only some proper or compelling reason therefore but also that
he will be prejudiced by the use of his true and official name.
Among the grounds for change of name which have been held
valid are: (a) when the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b) when the change
results as a legal consequence, as in legitimation; (c) when the
change will avoid confusion; (d) when one has continuously used
and been known since childhood by a Filipino name, and was
unaware of alien parentage; (e) a sincere desire to adopt a Filipino
name to erase signs of former alienage, all in good faith and
without prejudicing anybody; and (f) when the surname causes
embarrassment and there is no showing that the desired change
of name was for a fraudulent purpose or that the change of name
would prejudice public interest.[16]
In granting or denying petitions for change of name, the
question of proper and reasonable cause is left to the sound
discretion of the court. The evidence presented need only be
satisfactory to the court and not all the best evidence available.
What is involved is not a mere matter of allowance or disallowance
of the request, but a judicious evaluation of the sufficiency and
propriety of the justifications advanced in support thereof, mindful
of the consequent results in the event of its grant and with the sole
prerogative for making such determination being lodged in the
courts.[17]

The petition before us is unlike other petitions for change of

name, as it does not simply seek to change the name of the minor
petitioner and adopt another, but instead seeks to drop the middle
name altogether. Decided cases in this jurisdiction involving
petitions for change of name usually deal with requests for change
of surname. There are only a handful of cases involving requests
for change of the given name [18] and none on requests for changing
or dropping of the middle name. Does the law allow one to drop
the middle name from his registered name? We have to answer in
the negative.
A discussion on the legal significance of a persons name is
relevant at this point. We quote, thus:
For all practical and legal purposes, a man's name is the
designation by which he is known 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, 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. Names are used merely as one
method of indicating the identity of persons; they are descriptive of
persons for identification, since, the identity is the essential thing
and it has frequently been held that, when identity is certain, a
variance in, or misspelling of, the name is immaterial.
The names of individuals usually have two parts: the given name
or proper name, and the surname or family name. The given or
proper name is that which is given to the individual at birth or
baptism, to distinguish him from other individuals. The name or
family 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 surname to
which the child is entitled is fixed by law.
A name is said to have the following characteristics: (1) It is
absolute, intended to protect the individual from being confused
with others. (2) It is obligatory in certain respects, for nobody can
be without a name. (3) It is fixed, unchangeable, or immutable, at
least at the start, and may be changed only for good cause and by
judicial proceedings. (4) It is outside the commerce of man, and,
therefore, inalienable and intransmissible by act inter vivos or
mortis causa. (5) It is imprescriptible.[19]

This citation does not make any reference to middle names,

but this does not mean that middle names have no practical or
legal significance. Middle names serve to identify the maternal
lineage or filiation of a person as well as further distinguish him
from others who may have the same given name and surname as
he has.
Our laws on the use of surnames state that legitimate and
legitimated children shall principally use the surname of the father.
[20]
The Family Code gives legitimate children the right to bear the
surnames of the father and the mother, [21] while illegitimate
children shall use the surname of their mother, unless their father
recognizes their filiation, in which case they may bear the fathers
surname.[22]
Applying these laws, an illegitimate child whose filiation is not
recognized by the father bears only a given name and his mothers
surname, and does not have a middle name. The name of the
unrecognized illegitimate child therefore identifies him as such. It
is only when the illegitimate child is legitimated by the subsequent
marriage of his parents or acknowledged by the father in a public
document or private handwritten instrument that he bears both his
mothers surname as his middle name and his fathers surname as
his surname, reflecting his status as a legitimated child or an
acknowledged illegitimate child.
Accordingly, the registration in the civil registry of the birth of
such individuals requires that the middle name be indicated in the
certificate. The registered name of a legitimate, legitimated and
recognized illegitimate child thus contains a given or proper name,
a middle name, and a surname.
Petitioner theorizes that it would be for his best interest to
drop his middle name as this would help him to adjust more easily
to and integrate himself into Singaporean society. In support, he
cites Oshita v. Republic[23] and Calderon v. Republic,[24] which,
however, are not apropos both.
In Oshita, the petitioner therein, a legitimate daughter of a
Filipino mother, Buena Bartolome, and a Japanese father,
Kishimatsu Oshita, sought to change her name from Antonina B.
Oshita to Antonina Bartolome. The Court granted her petition
based on the following considerations: she had elected Philippine
citizenship upon reaching the age of majority; her other siblings
who had also elected Philippine citizenship have been using their
mothers surname; she was embarrassed to bear a Japanese

surname there still being ill feeling against the Japanese due to the
last World War; and there was no showing that the change of name
was motivated by a fraudulent purpose or that it will prejudice
public interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina
del Prado, an illegitimate minor child acting through her mother
who filed the petition in her behalf, to change her name to
Gertudes Josefina Calderon, taking the surname of her stepfather,
Romeo C. Calderon, her mothers husband. The Court held that a
petition for change of name of an infant should be granted where
to do is clearly for the best interest of the child. The Court took
into consideration the opportunity provided for the minor petitioner
to eliminate the stigma of illegitimacy which she would carry if she
continued to use the surname of her illegitimate father. The Court
pronounced that justice dictates that every person be allowed to
avail of any opportunity to improve his social standing as long as
doing so he does not cause prejudice or injury to the interests of
the State or of other people.
Petitioner cites Alfon v. Republic,[25] in arguing that although
Article 174 of the Family Code gives the legitimate child the right
to use the surnames of the father and the mother, it is not
mandatory such that the child could use only one family name,
even the family name of the mother. In Alfon, the petitioner
therein, the legitimate daughter of Filomeno Duterte and Estrella
Alfon, sought to change her name from Maria Estrella Veronica
Primitiva Duterte (her name as registered in the Local Civil
Registry) to Estrella S. Alfon (the name she had been using since
childhood, in her school records and in her voters registration).
The trial court denied her petition but this Court overturned the
denial, ruling that while Article 364 of the Civil Code states that
she, as a legitimate child, should principally use the surname of
her father, there is no legal obstacle for her to choose to use the
surname of herm other to which she is entitled. In addition, the
Court found that there was ample justification to grant her
petition, i.e., to avoid confusion.
Weighing petitioners reason of convenience for the change of
his name against the standards set in the cases he cites to support
his contention would show that his justification is amorphous, to
say the least, and could not warrant favorable action on his
petition.

The factual antecedents and unique circumstances of the

cited cases are not at all analogous to the case at bar. The instant
case is clearly distinguishable from the cases of Oshita and Alfon,
where the petitioners were already of age when they filed their
petitions for change of name. Being of age, they are considered to
have exercised their discretion and judgment, fully knowing the
effects of their decision to change their surnames. It can also be
unmistakably observed that the reason for the grant of the
petitions for change of name in these two cases was the presence
of reasonable or compelling grounds therefore. The Court,
in Oshita, recognized the tangible animosity most Filipinos had
during that time against the Japanese as a result of World War II, in
addition to the fact of therein petitioners election of Philippine
citizenship. In Alfon, the Court granted the petition since the
petitioner had been known since childhood by a name different
from her registered name and she had not used her registered
name in her school records and voters registration records; thus,
denying the petition would only result to confusion.
Calderon, on the other hand, granted the petition for change
of name filed by a mother in behalf of her illegitimate minor child.
Petitioner cites this case to buttress his argument that he does not
have to reach the age of majority to petition for change of name.
However, it is manifest in Calderonthat the Court, in granting the
petition for change of name, gave paramount consideration to the
best interests of the minor petitioner therein.
In the case at bar, the only reason advanced by petitioner for
the dropping his middle name is convenience. However, how such
change of name would make his integration into Singaporean
society easier and convenient is not clearly established. That the
continued use of his middle name would cause confusion and
difficulty does not constitute proper and reasonable cause to drop
it from his registered complete name.
In addition, petitioner is only a minor. Considering the
nebulous foundation on which his petition for change of name is
based, it is best that the matter of change of his name be left to his
judgment and discretion when he reaches the age of majority. [26]
As he is of tender age, he may not yet understand and appreciate
the value of the change of his name and granting of the same at
this point may just prejudice him in his rights under our laws.
WHEREFORE, in view of the foregoing, the Petition for
Review on Certiorari is DENIED.

SO ORDERED.

[16]

Republic v. Court of Appeals, G.R. No. 97906, 21 May 1992, 209

SCRA 189.
See also Republic v. Hernandez, G.R. No.
117209, 9 February 1996, 253 SCRA 509.

[17]

Ibid.

[18]

Go v. Republic, No. L-20160, 29 November 1965; In re: Flaviano

C. Zapanta v. Local Civil Register, G.R. No. 55380, 26
September 1994; Republic v. Hernandez, G.R. No. 117209,
9 February 1996.

[19]

Republic v. Court of Appeals, supra at note 16.

[20]

Article 364, Civil Code.

[21]

Article 174, Family Code. Supra at note 7.

[22]

Article 176, Family Code, as amended by Republic Act No. 9255

(An Act Allowing Illegitimate Children to Use the Surname
of Their Father, Amending for the Purpose Article 176 of
Executive Order No. 209, Otherwise Known as the Family
Code of the Philippines), which took effect on 19 March
2004, by allowing illegitimate children to 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.

[23]

125 Phil. 1098 (1967).

[24]

Supra note 9.

[25]

No. L-51201, 29 May 1980, 97 SCRA 858.

[26]

In Republic v. Marcos, G.R. No. 31065, 15 February 1990, 182

SCRA 223, and Padilla v. Republic, 199 Phil. 226 (1982), the
Court denied the petitions for change of name filed by
mothers in behalf of their minor children for prematurity.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and ChicoNazario, JJ., concur.

[1]

RTC

Decision, penned by
Belarmino, Rollo, p. 21.

[2]

Id. at 20-23.

[3]

Ibid.

[4]

Id. at 24-25.

Judge

Enriqueta

Loquillano-

[5]

Ibid.

[6]

Id. at 3-58; with Annexes.

[7]

Art. 174. Legitimate children shall have the right: (1) To bear the
surnames of the father and mother, in conformity with the
provisions of the Civil Code on Surnames; .

[8]

Rollo, p. 5.

[9]

Petitioner cites the following cases: Tse v. Republic, No. L-20708,

31 August 1967, 20 SCRA 1261; Calderon v. Republic, 126
Phil. 1 (1967); and Republic v. Lee Wai Lam, No. L-22607,
30 July 1969, 28 SCRA 1043. In these three cases, the
Court allowed the minor to petition for change of
name. Ibid.

[10]

Ibid.

[11]

Rollo, pp. 63-80.

[12]

Ibid.

[13]

Id. at 71.

[14]

Republic v. Lee Wai Lam, No. L-22607, 30 July 1969, 28 SCRA

1040, 1047-48, citing Yu Chi Han v. Republic, No. L-22040,
29 November 1965 and Yap Ek Siu v. Republic, No. L25437, 28 April 1969.

[15]

Republic v. Court of Appeals, G.R. No. 88202, 14 December

1998, 300 SCRA 138.

THIRD DIVISION

[G.R. No. 123450. August 31, 2005]

GERARDO B. CONCEPCION, petitioner, vs. COURT OF

APPEALS and MA. THERESA ALMONTE, respondents.
DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity,
needs special safeguard and care, including appropriate legal
protection before as well as after birth. [1] In case of assault on his
rights by those who take advantage of his innocence and
vulnerability, the law will rise in his defense with the single-minded
purpose of upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and
private respondent Ma. Theresa Almonte, and a child named Jose
Gerardo. Gerardo and Ma. Theresa were married on December 29,
1989.[2] After their marriage, they lived with Ma. Theresas parents
in Fairview, Quezon City.[3] Almost a year later, on December 8,
1990, Ma. Theresa gave birth to Jose Gerardo.[4]
Gerardo and Ma. Theresas relationship turned out to be shortlived, however. On December 19, 1991, Gerardo filed a petition to
have his marriage to Ma. Theresa annulled on the ground of
bigamy.[5] He alleged that nine years before he married Ma.
Theresa on December 10, 1980, she had married one Mario
Gopiao, which marriage was never annulled. [6] Gerardo also found
out that Mario was still alive and was residing in Loyola Heights,
Quezon City.[7]
Ma. Theresa did not deny marrying Mario when she was
twenty years old. She, however, averred that the marriage was a
sham and that she never lived with Mario at all.[8]
The trial court ruled that Ma. Theresas marriage to Mario was
valid and subsisting when she married Gerardo and annulled her
marriage to the latter for being bigamous. It declared Jose Gerardo
to be an illegitimate child as a result. The custody of the child was
awarded to Ma. Theresa while Gerardo was granted visitation
rights.[9]
Ma. Theresa felt betrayed and humiliated when Gerardo had
their marriage annulled. She held him responsible for the
bastardization of Gerardo. She moved for the reconsideration of
the above decision INSOFAR ONLY as that portion of the

decision which grant(ed) to the petitioner so-called visitation

rights between the hours of 8 in the morning to 12:00 p.m. of
any Sunday.[10] She argued that there was nothing in the law
granting visitation rights in favor of the putative father of an
illegitimate child.[11] She further maintained that Jose Gerardos
surname should be changed from Concepcion to Almonte, her
maiden name, following the rule that an illegitimate child shall use
the mothers surname.
Gerardo opposed the motion. He insisted on his visitation
rights and the retention of Concepcion as Jose Gerardos
surname.
Applying the best interest of the child principle, the trial
court denied Ma. Theresas motion and made the following
observations:
It is a pity that the parties herein seem to be using their son to get
at or to hurt the other, something they should never do if they
want to assure the normal development and well-being of the boy.
The Court allowed visitorial rights to the father knowing that the
minor needs a father, especially as he is a boy, who must have a
father figure to recognize something that the mother alone
cannot give. Moreover, the Court believes that the emotional and
psychological well-being of the boy would be better served if he
were allowed to maintain relationships with his father.
There being no law which compels the Court to act one way or the
other on this matter, the Court invokes the provision of Art. 8, PD
603 as amended, otherwise known as the Child and Youth Welfare
Code, to wit:
In all questions regarding the care, custody, education and
property of the child, his welfare shall be the paramount
consideration.
WHEREFORE, the respondents Motion for Reconsideration has to
be, as it is hereby DENIED.[12]
Ma. Theresa elevated the case to the Court of Appeals,
assigning as error the ruling of the trial court granting visitation
rights to Gerardo. She likewise opposed the continued use of

Gerardos surname (Concepcion) despite the fact that Jose Gerardo

had already been declared illegitimate and should therefore use
her surname (Almonte). The appellate court denied the petition
and affirmed in toto the decision of the trial court.[13]
On the issue raised by Ma. Theresa that there was nothing in
the law that granted a putative father visitation rights over his
illegitimate child, the appellate court affirmed the best interest of
the child policy invoked by the court a quo. It ruled that [a]t
bottom, it (was) the childs welfare and not the convenience of the
parents which (was) the primary consideration in granting
visitation rights a few hours once a week.[14]
The appellate court likewise held that an illegitimate child
cannot use the mothers surname motu proprio. The child,
represented by the mother, should file a separate proceeding for a
change of name under Rule 103 of the Rules of Court to effect the
correction in the civil registry.[15]
Undaunted, Ma. Theresa moved for the reconsideration of the
adverse decision of the appellate court. She also filed a motion to
set the case for oral arguments so that she could better ventilate
the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of
the parties, the appellate court resolved the motion for
reconsideration. It reversed its earlier ruling and held that Jose
Gerardo was not the son of Ma. Theresa by Gerardo but by Mario
during her first marriage:
It is, therefore, undeniable established by the evidence in this
case that the appellant [Ma. Theresa] was married to Mario
Gopiao, and that she had never entered into a lawful marriage with
the appellee [Gerardo] since the so-called marriage with the
latter was void ab initio. It was [Gerardo] himself who had
established these facts. In other words, [Ma. Theresa] was
legitimately married to Mario Gopiao when the child Jose Gerardo
was born on December 8, 1990. Therefore, the child Jose Gerardo
under the law is the legitimate child of the legal and subsisting
marriage between [Ma. Theresa] and Mario Gopiao; he cannot be
deemed to be the illegitimate child of the void and non-existent
marriage between [Ma. Theresa] and [Gerardo], but is said by the
law to be the child of the legitimate and existing marriage between
[Ma. Theresa] and Mario Gopiao (Art. 164, Family Code).
Consequently, [she] is right in firmly saying that [Gerardo] can

claim neither custody nor visitorial rights over the child Jose
Gerardo. Further, [Gerardo] cannot impose his name upon the
child. Not only is it without legal basis (even supposing the child to
be his illegitimate child [Art. 146, The Family Code]); it would tend
to destroy the existing marriage between [Ma. Theresa] and
Gopiao, would prevent any possible rapproachment between the
married couple, and would mean a judicial seal upon an
illegitimate relationship.[16]
The appellate court brushed aside the common admission of
Gerardo and Ma. Theresa that Jose Gerardo was their son. It gave
little weight to Jose Gerardos birth certificate showing that he was
born a little less than a year after Gerardo and Ma. Theresa were
married:
We are not unaware of the movants argument that various
evidence exist that appellee and the appellant have judicially
admitted that the minor is their natural child. But, in the same
vein, We cannot overlook the fact that Article 167 of the Family
Code mandates:
The child shall be considered legitimate although the mother may
have declared against its legitimacy or may have been sentenced
as an adulteress. (underscoring ours)
Thus, implicit from the above provision is the fact that a minor
cannot be deprived of his/her legitimate status on the bare
declaration of the mother and/or even much less, the supposed
father. In fine, the law and only the law determines who are
the legitimate or illegitimate children for ones legitimacy
or illegitimacy cannot ever be compromised. Not even the
birth certificate of the minor can change his status for the
information contained therein are merely supplied by the mother
and/or the supposed father. It should be what the law says
and not what a parent says it is.[17] (Emphasis supplied)
Shocked and stunned, Gerardo moved for a reconsideration of
the above decision but the same was denied.[18] Hence, this appeal.
The status and filiation of a child cannot be compromised.
Article 164 of the Family Code is clear. A child who is conceived
or born during the marriage of his parents is legitimate. [20]
[19]

As a guaranty in favor of the child[21] and to protect his status

of legitimacy, Article 167 of the Family Code provides:
Article 167. The child shall be considered legitimate although the
mother may have declared against its legitimacy or may have
been sentenced as an adulteress.
The law requires that every reasonable presumption be made
in favor of legitimacy.[22] We explained the rationale of this rule in
the recent case ofCabatania v. Court of Appeals[23]:
The presumption of legitimacy does not only flow out of a
declaration in the statute but is based on the broad principles of
natural justice and the supposed virtue of the mother. It is
grounded on the policy to protect the innocent offspring from the
odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He
cannot. He has no standing in law to dispute the status of Jose
Gerardo. Only Ma. Theresas husband Mario or, in a proper case,
[25]
his heirs, who can contest the legitimacy of the child Jose
Gerardo born to his wife. [26] Impugning the legitimacy of a child is a
strictly personal right of the husband or, in exceptional cases, his
heirs.[27] Since the marriage of Gerardo and Ma. Theresa was void
from the very beginning, he never became her husband and thus
never acquired any right to impugn the legitimacy of her child.
The presumption of legitimacy proceeds from the sexual union
in marriage, particularly during the period of conception. [28] To
overthrow this presumption on the basis of Article 166 (1)(b) of the
Family Code, it must be shown beyond reasonable doubt that there
was no access that could have enabled the husband to father the
child.[29] Sexual intercourse is to be presumed where personal
access is not disproved, unless such presumption is rebutted by
evidence to the contrary.[30]
The presumption is quasi-conclusive and may be refuted only
by the evidence of physical impossibility of coitus between
husband and wife within the first 120 days of the 300 days which
immediately preceded the birth of the child. [31]
To rebut the presumption, the separation between the spouses
must be such as to make marital intimacy impossible. [32] This may
take place, for instance, when they reside in different countries or

provinces and they were never together during the period of

conception.[33] Or, the husband was in prison during the period of
conception, unless it appears that sexual union took place through
the violation of prison regulations.[34]
Here, during the period that Gerardo and Ma. Theresa were
living together in Fairview, Quezon City, Mario was living in Loyola
Heights which is also in Quezon City. Fairview and Loyola Heights
are only a scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same
city but also that no evidence at all was presented to disprove
personal access between them. Considering these circumstances,
the separation between Ma. Theresa and her lawful husband,
Mario, was certainly not such as to make it physically impossible
for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence
sufficient to defeat the assumption should be presented by him
who asserts the contrary. There is no such evidence here. Thus,
the presumption of legitimacy in favor of Jose Gerardo, as the issue
of the marriage between Ma. Theresa and Mario, stands.
Gerardo relies on Ma. Theresas statement in her answer [35] to
the petition for annulment of marriage[36] that she never lived with
Mario. He claims this was an admission that there was never any
sexual relation between her and Mario, an admission that was
binding on her.
Gerardos argument is without merit.
First, the import of Ma. Theresas statement is that Jose
Gerardo is not her legitimate son with Mario but her illegitimate
son with Gerardo. This declaration an avowal by the mother
that her child is illegitimate is the very declaration that is
proscribed by Article 167 of the Family Code.
The language of the law is unmistakable. An assertion by the
mother against the legitimacy of her child cannot affect the
legitimacy of a child born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not
mean that there was never an instance where Ma. Theresa could
have been together with Mario or that there occurred absolutely no
intercourse between them. All she said was that she never lived
with Mario. She never claimed that nothing ever happened
between them.

Telling is the fact that both of them were living in Quezon City
during the time material to Jose Gerardos conception and birth.
Far from foreclosing the possibility of marital intimacy, their
proximity to each other only serves to reinforce such possibility.
Thus, the impossibility of physical access was never established
beyond reasonable doubt.
Third, to give credence to Ma. Theresas statement is to allow
her to arrogate unto herself a right exclusively lodged in the
husband, or in a proper case, his heirs. [37] A mother has no right to
disavow a child because maternity is never uncertain. [38] Hence,
Ma. Theresa is not permitted by law to question Jose Gerardos
legitimacy.
Finally, for reasons of public decency and morality, a married
woman cannot say that she had no intercourse with her husband
and that her offspring is illegitimate. [39] The proscription is in
consonance with the presumption in favor of family solidarity. It
also promotes the intention of the law to lean toward the
legitimacy of children.[40]
Gerardos insistence that the filiation of Jose Gerardo was
never an issue both in the trial court and in the appellate court
does not hold water. The fact that both Ma. Theresa and Gerardo
admitted and agreed that Jose Gerardo was born to them was
immaterial. That was, in effect, an agreement that the child was
illegitimate. If the Court were to validate that stipulation, then it
would be tantamount to allowing the mother to make a declaration
against the legitimacy of her child and consenting to the denial of
filiation of the child by persons other than her husband. These are
the very acts from which the law seeks to shield the child.
Public policy demands that there be no compromise on the
status and filiation of a child.[41] Otherwise, the child will be at the
mercy of those who may be so minded to exploit his
defenselessness.
The reliance of Gerardo on Jose Gerardos birth certificate is
misplaced. It has no evidentiary value in this case because it was
not offered in evidence before the trial court. The rule is that the
court shall not consider any evidence which has not been formally
offered.[42]
Moreover, the law itself establishes the status of a child from
the moment of his birth.[43] Although a record of birth or birth
certificate may be used as primary evidence of the filiation of a

child,[44] as the status of a child is determined by the law itself,

proof of filiation is necessary only when the legitimacy of the child
is being questioned, or when the status of a child born after 300
days following the termination of marriage is sought to be
established.[45]
Here, the status of Jose Gerardo as a legitimate child was not
under attack as it could not be contested collaterally and, even
then, only by the husband or, in extraordinary cases, his heirs.
Hence, the presentation of proof of legitimacy in this case was
improper and uncalled for.
In addition, a record of birth is merely prima facie evidence of
the facts contained therein. [46] As prima facie evidence, the
statements in the record of birth may be rebutted by more
preponderant evidence. It is not conclusive evidence with respect
to the truthfulness of the statements made therein by the
interested parties.[47] Between the certificate of birth which is prima
facie evidence of Jose Gerardos illegitimacy and the quasiconclusive presumption of law (rebuttable only by proof beyond
reasonable doubt) of his legitimacy, the latter shall prevail. Not
only does it bear more weight, it is also more conducive to the best
interests of the child and in consonance with the purpose of the
law.
It perplexes us why both Gerardo and Ma. Theresa would
doggedly press for Jose Gerardos illegitimacy while claiming that
they both had the childs interests at heart. The law, reason and
common sense dictate that a legitimate status is more favorable to
the child. In the eyes of the law, the legitimate child enjoys a
preferred and superior status. He is entitled to bear the surnames
of both his father and mother, full support and full inheritance.
[48]
On the other hand, an illegitimate child is bound to use the
surname and be under the parental authority only of his mother.
He can claim support only from a more limited group and his
legitime is only half of that of his legitimate counterpart.
[49]
Moreover (without unwittingly exacerbating the discrimination
against him), in the eyes of society, a bastard is usually regarded
as bearing a stigma or mark of dishonor. Needless to state, the
legitimacy presumptively vested by law upon Jose Gerardo favors
his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the
bitter squabble between the very persons who were passionately

declaring their concern for him. The paradox was that he was made
to suffer supposedly for his own sake. This madness should end.
This case has been pending for a very long time already. What
is specially tragic is that an innocent child is involved. Jose Gerardo
was barely a year old when these proceedings began. He is now
almost fifteen and all this time he has been a victim of incessant
bickering. The law now comes to his aid to write finis to the
controversy which has unfairly hounded him since his infancy.
Having only his best interests in mind, we uphold the
presumption of his legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear
the surnames of his father Mario and mother Ma. Theresa, in
conformity with the provisions of the Civil Code on surnames. [50] A
persons surname or family name identifies the family to which he
belongs and is passed on from parent to child. [51] Hence, Gerardo
cannot impose his surname on Jose Gerardo who is, in the eyes of
the law, not related to him in any way.
The matter of changing Jose Gerardos name and effecting the
corrections of the entries in the civil register regarding his paternity
and filiation should be threshed out in a separate proceeding.
In case of annulment or declaration of absolute nullity of
marriage, Article 49 of the Family Code grants visitation rights to a
parent who is deprived of custody of his children. Such visitation
rights flow from the natural right of both parent and child to each
others company. There being no such parent-child relationship
between them, Gerardo has no legally demandable right to visit
Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of
PD 603, otherwise known as the Child and Youth Welfare Code, is
clear and unequivocal:

1. In all actions concerning children, whether

undertaken by public or private social welfare
institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child
shall be a primary consideration.
The State as parens patriae affords special protection to
children from abuse, exploitation and other conditions prejudicial
to their development. It is mandated to provide protection to those
of tender years.[52] Through its laws, the State safeguards them
from every one, even their own parents, to the end that their
eventual development as responsible citizens and members of
society shall not be impeded, distracted or impaired by family
acrimony. This is especially significant where, as in this case, the
issue concerns their filiation as it strikes at their very identity and
lineage.
WHEREFORE, the petition is hereby DENIED. The September
14, 1995 and January 10, 1996 resolutions of the Court of Appeals
in CA-G.R. CV No. 40651 are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban,
(Chairman),
JJ., concur.
Carpio-Morales, J., no part.

Sandoval-Gutierrez, and Garcia,

[1]

Universal Declaration of the Rights of the Child.

[2]

Marriage Contract, Annex A, Rollo, p. 41.

[3]

Decision, Annex E, Rollo, pp. 46-48.

[4]

Certificate of Live Birth, Annex M, Rollo, p. 127.

[5]

Petition, Annex C, Rollo, pp. 38-40.

Article 3 (1) of the United Nations Convention on the Rights of

a Child of which the Philippines is a signatory is similarly emphatic:

[6]

Marriage Certificate, Annex B-1, Rollo, p. 43.

[7]

Supra at note 5.

Article 3

[8]

Answer, Annex D, Rollo, pp. 44-45.

Article 8. Childs Welfare Paramount. In all questions regarding

the care, custody, education and property of the child, his welfare
shall be the paramount consideration.

[9]

Penned by Judge (now Court of Appeals Justice) Delilah VidallonMagtolis, CC No. 91-10935, Regional Trial Court, National
Capital Judicial Region, Branch 107, Quezon City, Annex
E, Rollo, p. 46.

[10]

Motion for Reconsideration, Annex F, Rollo, p. 49.

[11]

Id., p. 61.

[12]

Order, Annex G, Rollo, pp. 53-54.

[13]

Penned by Associate Justice Ramon A. Barcelona and concurred

in by Associate Justices Arturo B. Buena (a retired Associate
Justice of the Supreme Court) and Serafin V.C. Guingona.
Decision dated September 29, 1994, CA-G.R. CV No.
40651, Court of Appeals, Third Division; CA Rollo, pp. 5564.

[14]

Id.

[15]

Id.

[16]

Penned by Associate Justice Ramon A. Barcelona and concurred

in by Associate Justices Arturo M. Buena and Conchita
Carpio Morales (now an Associate Justice of the Supreme
Court). Resolution dated September 14, 1995, CA-G.R. CV
No. 40651, Court of Appeals, Former Third Division; Rollo,
Annex A, pp. 29-32.

[17]

Id.

[18]

Resolution dated January 10, 1996, CA-G.R. CV No. 40651, Court

of Appeals, Former Third Division; Rollo, Annex B, pp. 3437.

[21]

Tolentino, Arturo, Civil Code of the Philippines with the Family

Code, Commentaries and Jurisprudence, vol. I, 1990
edition, p. 528.

[22]

Bowers v. Bailey, 237 Iowa 295, 21 N.W. 2d 773.

[23]

G.R. No. 124814, October 21, 2004.

[24]

In particular, Article 166 (1)(b) provides:

Article 166. Legitimacy of a child may be impugned only on
the following grounds:
(1) That it was physically impossible for the husband to
have sexual intercourse with his wife within the first 120
days of the 300 days which immediately preceded the birth
of the child because of:
xxx

xxx

xxx

(b) the fact that the husband and wife were living
separately in such a way that sexual intercourse
was not possible; or
xxx
[25]

xxx

xxx

Article 171 provides for the instances where the heirs of the
husband may impugn the filiation of the child. Thus:
Article 171. The heirs of the husband may impugn the
filiation of the child within the period prescribed in the
preceding article only in the following cases:
(1) If the husband should die before the expiration of the
period fixed for bringing his action;

[19]

Article 2035 (1), Civil Code; Baluyut v. Baluyut, G.R. No. 33659,
14 June 1990, 186 SCRA 506.

(2) If he should die after the filing of the complaint without

having desisted therefrom; or

[20]

Further, under Article 54 of the Family Code, a child who was

conceived or born before the judgment of annulment or of
absolute nullity of the marriage on the ground of
psychological incapacity has become final and executory
shall be considered legitimate. It also provides that a child
who was born from a subsequent void marriage as a result
of the failure of the contracting parties to comply with the
mandatory provisions of Articles 52 and 53 of the Family
Code shall likewise be considered legitimate.

(3) If the child was born after the death of the husband.
[26]

Macadangdang v. Court of Appeals, G.R. No. L-49542, 12

September 1980, 100 SCRA 73; Article 170, Family Code.

[27]

Liyao, Jr. v. Liyao, 428 Phil. 628 (2002).

[28]

Supra at note 21 citing People v. Giberson, 197 Phil. 509 (1982).

[29]

Supra at note 26.

[30]

Id. citing Tolentino supra.

[31]

Id.

[32]

Id.

[33]

Id. citing Estate of Benito Marcelo, 60 Phil. 442 (1934).

[34]

Id. citing 1 Manresa 492-500.

[35]

Supra at note 8.

[36]

Supra at note 5.

[37]

Supra at note 26. See also Articles 170 and 171, Family Code.

[38]

Id.

[39]

People ex rel. Gonzales v. Monroe, 43 Ill. App 2d 1, 192 N.E. 2d

691.

[40]

(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.
On the other hand, Article 175 provides:
Article 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate children.

Cf. Article 220 of the Civil Code. It provides:

Art. 220. In case of doubt, all presumptions favor the
solidarity of the family. Thus, every intendment of law or
fact leans toward the validity of marriage, the
indissolubility of the marriage bonds, the legitimacy of
children, the community of property during marriage, the
authority of parents over the children, and the validity of
defense for any member of family in case of unlawful
aggression.

xxx

xxx

xxx

[45]

Cf. Article 169, Family Code.

[46]

Article 410, Civil Code.

[47]

Dupilas v. Cabacungan, 36 Phil. 254 (1917).

[48]

Article 174, Family Code provides:

While this provision of the Civil Code may have been

omitted in the Family Code, the principles they contain are
valid norms in family relations and in cases involving family
members. They are even already embodied in
jurisprudence. (Tolentino, supra, p. 506)

Article 174. Legitimate children shall have the right:

(1) To bear the surnames of the father and the mother, in
conformity with the provisions of the Civil Code on
Surnames;

[41]

Supra at note 19.

[42]

Section 34, Rule 132, Rules of Court.

(2) To receive support from their parents, their ascendants,

and in proper cases, their brothers and sisters, in
conformity with the provisions of this Code on Support; and

[43]

Tolentino, supra, p. 539; Sempio-Diy, Alicia, Handbook on the

Family Code of the Philippines, 1995 edition, p. 275.

(3) To be entitled to the legitime and other successional

rights granted to them by the Civil Code.

[44]

Articles 172 and 175, Family Code. Article 172 states:

Article 172. The filiation of legitimate
established by any of the following:

children

[49]

is

Article 176, Family Code states:

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.

The legitime of each illegitimate child shall consist of onehalf of the legitime of a legitimate child. Except for this
modification, all other provisions in the Civil Code
governing successional rights shall remain in force.

CV No. 66128, which affirmed the decision of the Regional Trial

Court

(RTC),

Branch

23

of

San

Juan, Southern Leyte dated

September 14, 1999 granting a petition for change of name.

[50]

Id.

[51]

In the Matter of the Adoption of Stephanie Nathy Astorga

Garcia, G.R. No. 148311, 31 March 2005.

of

[52]

People v. Dolores, G.R. No. 76468, 20 August 1990, 188 SCRA

660.

Special

Respondent Trinidad R. A. Capote filed a petition for change

name

of

Proceeding

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA and
GARCIA, JJ.

TRINIDAD R.A. CAPOTE,

Respondent.

as

1998. In
Giovannis

xxx

[Respondent] was appointed guardian [ad litem]

of minor Giovanni N. Gallamaso by virtue of a court
order in Special [Proc.] No. R-459, dated [August
18, 1998] xxx xxx authorizing her to file in court a
petition for change of name of said minor in
accordance with the desire of his mother [who is
residing and working abroad];

3.

Both [respondent] and minor have permanently

resided in San Juan, Southern Leyte, Philippines for
more than fifteen (15) years prior to the filing of
this instant petition, the former since 1970 while
the latter since his birth [in 1982];

4.

The minor was left under the care of

[respondent] since he was yet nine (9) years old up
to the present;

5.

Minor GIOVANNI N. GALLAMASO is the

illegitimate
natural
child
of
Corazon
P. Nadores and Diosdado Gallamaso. [He] was born
on July 9, 1982 [,] prior to the effectivity of the

DECISION
CORONA, J.:

Court of Appeals (CA) decision [2] dated January 13, 2003 in CA-G.R.

Capote

9,

2.

x --------------------------------------------- - - - - -x

This petition for review on certiorari [1] seeks to set aside the

xxx

September
[3]

[Respondent] is a Filipino citizen, of legal age,

married, while minor GIOVANNI N. GALLAMASO, is
also a Filipino citizen, sixteen (16) years old and
both
are
residents
of
San
Juan,
Southern Leyte where they can be served with
summons and other court processes;

Promulgated:
February 2, 2007

No. R-481,

from Giovanni

1.

REPUBLIC OF THE PHILIPPINES,

G.R. No. 157043
Petitioner,
Present:
- versus-

ward

N. Gallamaso to Giovanni Nadoreson

guardian ad litem averred:
xxx

FIRST DIVISION

her

New Family Code and as such, his mother used the

surname of the natural father despite the absence
of marriage between them; and [Giovanni] has
been known by that name since birth [as per his
birth certificate registered at the Local Civil
Register of San Juan, SouthernLeyte];
6.

directed that the local civil registrar be notified and that the Office
of the Solicitor General (OSG) be sent a copy of the petition and
order.[7]
Since there was no opposition to the petition, respondent

The father, Diosdado Gallamaso, from the time

[Giovanni] was born and up to the present, failed to
take up his responsibilities [to him] on matters of
financial,
physical,
emotional
and
spiritual
concerns. [Giovannis pleas] for attention along
that line [fell] on deaf ears xxx xxx xxx;

7.

moved for leave of court to present her evidence ex parte before a

court-appointed commissioner. The OSG, acting through the
Provincial Prosecutor, did not object; hence, the lower court
granted the motion.

[Giovanni] is now fully aware of how he stands

with his father and he desires to have his surname
changed to that of his mothers surname;
[Giovannis] mother might eventually petition
[him] to join her in the United States and [his]
continued use of the surname Gallamaso, the
surname of his natural father, may complicate [his]
status as natural child; and

8.

After the reception of evidence, the trial court rendered a

decision

ordering

the

change

N. Gallamaso to Giovanni Nadores.

of

name

from

Giovanni

[8]

From this decision, petitioner Republic of the Philippines,

through the OSG, filed an appeal with a lone assignment of error:
the court a quo erred in granting the petition in a summary
proceeding.

9.

The change of name [from] GIOVANNI N.

GALLAMASO to GIOVANNI NADORES will be for the
benefit of the minor.
xxx

xxx

Ruling that the proceedings were sufficiently adversarial in

nature as required, the CA affirmed the RTC decision ordering the

xxx[4]

change of name.[9]

Respondent prayed for an order directing the local civil

registrar to effect the change of name on Giovannis birth
certificate. Having found respondents petition sufficient in form
and substance, the trial court gave due course to the petition.
[5]

in

Publication of the petition in a newspaper of general circulation

the

province

of

Southern Leyte once

week

for

three

consecutive weeks was likewise ordered. [6] The trial court also

In this petition, the Republic contends that the CA erred in

affirming the trial courts decision which granted the petition for
change of name despite the non-joinder of indispensable parties.
[10]

Petitioner cites Republic of the Philippines v. Labrador [11] and

claims that the purported parents and all other persons who may
be adversely affected by the childs change of name should have
been made respondents to make the proceeding adversarial. [12]

We deny the petition.

When Giovanni was born in 1982 (prior to the enactment

and effectivity of

The subject of rights must have a fixed symbol for

individualization which serves to distinguish him from all others;

the

Family

Code

of

the

Philippines),[19] the

pertinent provision of the Civil Code then as regards his use of a

surname, read:

this symbol is his name.[13] Understandably, therefore, no person

can change his name or surname without judicial authority. [14] This
is a reasonable requirement for those seeking such change
because a persons name necessarily affects his identity, interests

Art. 366. A natural child acknowledged by both

parents shall principally use the surname of the
father. If recognized by only one of the parents, a
natural child shall employ the surname of the
recognizing parent. (emphasis ours)

and interactions. The State must be involved in the process and

decision to change the name of any of its citizens.

Based on this provision, Giovanni should have carried his

The Rules of Court provides the requirements and procedure

mothers surname from birth. The records do not reveal any act or

for change of name. Here, the appropriate remedy is covered by

intention on the part of Giovannis putative father to actually

Rule 103,

recognize him. Meanwhile, according to the Family Code which

[15]

a separate and distinct proceeding from Rule 108 on

mere cancellation and correction of entries in the civil registry

(usually dealing only with innocuous or clerical errors thereon).

[16]

The issue of non-joinder of alleged indispensable parties in

the action before the court a quo is intertwined with the nature of

repealed, among others, Article 366 of the Civil Code:

Art. 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. xxx xxx xxx (emphasis ours)

the proceedings there. The point is whether the proceedings were

sufficiently adversarial.
Summary proceedings do not extensively address the
issues of a case since the reason for their conduct is expediency.
This, according to petitioner, is not sufficient to deal with
substantial or contentious issues allegedly resulting from a change
of name, meaning, legitimacy as well as successional rights.
[17]

Such issues are ventilated only in adversarial proceedings

wherein all interested parties are impleaded and due process is

observed.[18]

Our ruling in the recent case of In Re: Petition for Change

of Name and/or Correction/Cancellation of Entry in Civil Registry of
Julian Lin Carulasan Wang[20] is enlightening:
Our laws on the use of surnames state that
legitimate and legitimated children shall principally
use the surname of the father. The Family Code
gives legitimate children the right to bear the
surnames of the father and the mother, while
illegitimate children shall use the surname of their
mother,
unless
their
father
recognizes
their filiation, in which case they may bear the
fathers surname.

Applying these laws, an illegitimate child

whose filiation is not recognized by the
father bears only a given name and his
mother surname, and does not have a
middle name. The name of the unrecognized
illegitimate child therefore identifies him as
such. It is only when the illegitimate child is
legitimated by the subsequent marriage of his
parents or acknowledged by the father in a public
document or private handwritten instrument that
he bears both his mothers surname as his middle
name and his fathers surname as his surname,
reflecting his status as a legitimated child or an
acknowledged child.[21]

intended petition to have him join her in the United States. This
Court will not stand in the way of the reunification of mother and
son.
Moreover,
petitioner

[22]

it

is

noteworthy

that

the

cases

cited

by

in support of its position deal with cancellation or

correction of entries in the civil registry, a proceeding separate and

distinct from the special proceedings for change of name. Those
cases deal with the application and interpretation of Rule 108 of
the Rules of Court while this case was correctly filed under Rule
103. Thus, the cases cited by petitioner are irrelevant and have no

significant

bearing on respondents case. While the OSG is correct in its

connection of a persons name to his identity, his status in relation

stance that the proceedings for change of name should be

to his parents and his successional rights as a legitimate or

adversarial, the OSG cannot void the proceedings in the trial court

illegitimate child. For sure, these matters should not be taken

on account of its own failure to participate therein. As the CA

lightly as to deprive those who may, in any way, be affected by the

correctly ruled:

The

foregoing

discussion

establishes

the

right to present evidence in favor of or against such change.

The law and facts obtaining here favor Giovannis petition.
Giovanni availed of the proper remedy, a petition for change of
name under Rule 103 of the Rules of Court, and complied with all
the procedural requirements. After hearing, the trial court found
(and the appellate court affirmed) that the evidence presented
during the hearing of Giovannis petition sufficiently established
that, under Art. 176 of the Civil Code, Giovanni is entitled to
change 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 by his
father. It is also to his best interest as it will facilitate his mothers

The OSG is correct in stating that a petition

for change of name must be heard in an
adversarial proceeding. Unlike petitions for the
cancellation or correction of clerical errors in
entries in the civil registry under Rule 108 of the
Rules of Court, a petition for change of name under
Rule 103 cannot be decided through a summary
proceeding. There is no doubt that this petition
does not fall under Rule 108 for it is not alleged
that the entry in the civil registry suffers from
clerical or typographical errors. The relief sought
clearly goes beyond correcting erroneous entries in
the civil registry, although by granting the petition,
the result is the same in that a corresponding
change in the entry is also required to reflect the
change in name. In this regard, [appellee]
Capote complied with the requirement for an
adversarial proceeding by posting in a
newspaper of general circulation notice of

the filing of the petition. The lower court also

furnished the OSG a copy thereof. Despite
the notice, no one came forward to oppose
the petition including the OSG. The fact that
no one opposed the petition did not deprive
the court of its jurisdiction to hear the same
nor does it make the proceeding less
adversarial in nature. The lower court is still
expected to exercise its judgment to determine
whether the petition is meritorious or not and not
merely accept as true the arguments propounded.
Considering that the OSG neither opposed the
petition
nor
the
motion
to
present
its
evidence exparte when it had the opportunity to do
so, it cannot now complain that the proceedings in
the lower court were not adversarial enough.
[23]
(emphasissupplied)

RENATO C. CORONA
Associate Justice

WE

REYNATO S. PUNO
Chief Justice
Chairperson
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

has given legal warning to the other party and afforded the latter

CERTIFICATION

an opportunity to contest it. [24] Respondent gave notice of the

all interested parties were deemed notified and the whole world
considered bound by the judgment therein. In addition, the trial

ADOLFO S. AZCUNA
Associate Justice

CANCIO C. GARCIA
Associate Justice

A proceeding is adversarial where the party seeking relief

petition through publication as required by the rules. [25] With this,

CONCUR:

Pursuant to Section 13, Article VIII of the Constitution, I

certify that the conclusions in the above decision had been
reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.

court gave due notice to the OSG by serving a copy of the petition
REYNATO S. PUNO
Chief Justice

on it. Thus, all the requirements to make a proceeding adversarial

were satisfied when all interested parties, including petitioner as
represented by the OSG, were afforded the opportunity to contest
the petition.
WHEREFORE, the petition is hereby DENIED and the
January 13, 2003 decision of the Court of Appeals in CA-G.R. CV No.
66128AFFIRMED.
SO ORDERED.

This is a petition filed under Rule 45 of the 1997 Rules

of Civil Procedure.
[2]
Penned by Associate Justice Remedios A. SalazarFernando and concurred in by Associate Justices Ruben T.
Reyes and Edgardo F. Sundiam of the Seventh Division of
the Court of Appeals; rollo, pp. 18-23.
[3]
In the matter of the petition for change of name from
Giovanni N. Gallamaso to Giovanni Nadores, Trinidad R.A.
[1]

Capote v. The Local Civil Registrar of San Juan,

SouthernLeyte.
[4]
Annex B, rollo, pp. 24-26.
[5]
Annex C, rollo, p. 28.
[6]
Id.
[7]
Id.
[8]
Annex D, rollo, pp. 30-32.
[9]
Annex A, rollo, pp. 18-23.
[10]
Petition, rollo, p. 9.
[11]
364 Phil. 934 (1999).
[12]
Id.
[13]
Tolentino, COMMENTARIES AND JURISPRUDENCE ON THE
CIVIL CODE OF THE PHILIPPINES 1 (1990), Central
Professional Books, Inc., Quezon City, Philippines, p. 672.
[14]
CIVIL CODE, Art. 376. There is now a new law allowing
change
of
name
through
administrative
proceedings. Please see RA 9048 and AO No. 1 S. 2001.
With the amendment by RA 9048, a person desiring to
change his first name does not need to file the petition
with the RTC. The petition shall now be filed with the local
civil registry office of the city or municipality where the
record sought to be corrected or charged is kept.
[15]
Regalado, REMEDIAL LAW COMPENDIUM 2 (2001), N
ational Book Store, Manila, Philippines,
p. 167.
[16]
Id., at 189 citing Ansaldo v. Republic, 102 Phil. 1046
(1958).
[17]
Petition, rollo, p. 10.
[18]
Republic of the Philippines v. Labrador, 364 Phil. 934
(1999):
What is meant by appropriate adversary proceeding?
[A]dversary proceedings [may be defined] as follows:

[19]

[20]

One having opposing parties,

contested, as distinguished from
an ex parte application, one [in]
which the party seeking relief has
given legal warning to the other
party, and afforded the latter an
opportunity
to
contest
it. xxx xxx.(citations omitted)
Executive Order No. 209, known as the Family Code of
the Philippines, took effect on August 3, 1988.
G.R. No. 159966, 30 March 2005, 454 SCRA 155.

[21]

Id., at 163 citing CIVIL CODE, Arts. 174, 176 and 364;
and Republic Act No. 9255, An Act Allowing Illegitimate
Children to Use the Surname of Their Father, Amending for
the Purpose Art. 176 of the Family Code. See Leonardo v.
Court of Appeals, et al., G.R. No. 125329, 10 September
2003, 410 SCRA 446 and Mossesgeld v. Court of Appeals,
360 Phil. 646 (1998).
Article 176 of the Family Code, as amended by RA 9255,
reads:
Art. 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. Provided, the father has the right to institute
an action before the regular courts to prove nonfiliation during
lifetime. The legitime of
each
illegitimate child shall consist of one-half of
the legitime of a legitimate child. (emphasis ours)

Leonor v. Court of Appeals, 326 Phil. 74 (1996)

and Republic v. Labrador, supra.
[23]
Supra note 2.
[24]
Cf. Republic v. Labrador, supra.
[25]
Cf. Sec. 3, Rule 103, Rules of Court.
[22]

SECOND DIVISION
WILSON SY,

G.R. No. 124518

Petitioner,
Present:

- versus ,

QUISUMBING, J.,
Chairperson

COURT OF APPEALS,
Regional Trial Court of Manila,
Branch 48, and MERCEDES
TAN UY-SY,
Respondents.

CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
Promulgated:
December

the following reasons: firstly, respondent abandoned her family in

1992; secondly, she is mentally unstable; and thirdly, she cannot
provide proper care to the children.[5]
After trial, the trial court caused the issuance of a writ of
habeas corpus and awarded custody of the children to respondent,
to wit:

27, 2007
x
-----------------------------------------------------------------------------------x
DECISION
TINGA, J.:

In this Petition for Review on Certiorari[1] under Rule 45 of the

1997 Rules of Civil Procedure, petitioner Wilson Sy assails the
Decision[2] dated 29 February 1996 of the Court of Appeals in C.A.
G.R. SP No. 38936 and its Resolution [3] dated 15 April 1996 denying
his motion for reconsideration.
The following are the antecedents:
On 19 January 1994, respondent Mercedes Tan Uy-Sy filed a
petition for habeas corpus against petitioner Wilson Sy before the
Regional Trial Court of Manila, Branch 48, docketed as Special
Proceeding No. 94-69002. Respondent prayed that said writ be
issued ordering petitioner to produce their minor children Vanessa
and Jeremiah before the court and that after hearing, their care
and custody be awarded to her as their mother.[4]
In his answer, petitioner prayed that the custody of the
minors be awarded to him instead. Petitioner maintained that
respondent was unfit to take custody of the minors. He adduced

WHEREFORE, judgment is hereby rendered

maintaining to the petitioner the custody of the
minors Vanessa and Jeremiah, all surnamed Uy-Sy,
without, however, prejudice to the visitorial rights
of the father, herein respondent, and the
temporary arrangement of the custody made by
the parties during pendency of this proceeding is
hereby revoked, and without any further effect. The
Court further orders the respondent to pay by way
of monthly support for the minors, the amount
of P50,000.00 payable to petitioner from [the] date
of judgment for failure on the part of respondent to
show by preponderance of evidence that the
petitioner is unfit to the custody of the minor
children who are only 6 and 4 years old.[6]
Petitioner appealed the order of the trial court to the Court of
Appeals. Before the appellate court, he alleged that the trial court
erred: (1) in awarding the custody of the minor children solely to
respondent; and (2) in ordering him to provide respondent support
in the amount ofP50,000.00 per month.[7]
The Court of Appeals found no merit in the appeal and
affirmed the decision of the trial court. The Court of Appeals did
not find any reason to disturb the conclusions of the trial court,
particularly petitioners failure to prove by preponderance of
evidence that respondent was unfit to take custody over the minor
children.

The Court of Appeals held that petitioner was not able to

to respondent; (2) the Court of Appeals had no jurisdiction to award

substantiate his contention that respondent was unfit to have

support in a habeas corpus case as: (a) support was neither

custody of the children. On respondents supposed abandonment

alleged nor prayed for in the petition; (b) there was no express or

of the family, the appellate court found instead that respondent

implied consent on the part of the parties to litigate the issue; and

had been driven away by petitioners family because of religious

(c) Section 6, Rule 99 of the Rules of Court does not apply because

differences. Respondents stay in Taiwan likewise could hardly be

the trial court failed to consider the Civil Code provisions on

called abandonment as she had gone there to earn enough money

support; and (3) the award of P50,000.00 as support is arbitrary,

to reclaim her children. Neither could respondents act of praying

unjust, unreasonable and tantamount to a clear deprivation of

outdoors in the rain be considered as evidence of insanity as it

property without due process of law.[11]

may simply be an expression of ones faith. Regarding the

allegation that respondent was unable to provide for a decent

For her part, respondent claims that petitioner had lost his

dwelling for the minors, to the contrary, the appellate court was

privilege to raise the first issue, having failed to raise it before the

satisfied with respondents proof of her financial ability to provide

appellate court. Anent the second issue, respondent takes refuge

her children with the necessities of life.

in the appellate courts statement that the questions regarding the

[8]

care and custody of children may properly be adjudicated in a

As to the second assignment of error, the Court of Appeals

habeas corpus case. Regarding the third issue, respondent

held that questions as to care and custody of children may be

maintains that the amount of support awarded is correct and

properly raised in a petition for writ of habeas corpus. Moreover,

proper.[12]

petitioner was properly heard on the matter relative to the issue of

support. He was questioned about his sources of income for the
purpose of determining his ability to give support. As to the

There is no merit in the petition regarding the question of

care and custody of the children.

propriety of the amount awarded, the appellate court was unwilling

to alter the trial courts conclusion for petitioner did not forthrightly
testify on his actual income. Neither did he produce income tax
returns or other competent evidence, although within his power to
do so, to provide a fair indication of his resources. At any rate, the
appellate court declared that a judgment of support is never final
and petitioner is not precluded at any time from seeking a
modification of the same and produce evidence of his claim. [9]
Petitioner filed a motion for reconsideration of the Court of
Appeals decision but the same was denied.

[10]

Hence, this appeal

by certiorari wherein petitioner asserts that: (1) the Court of

Appeals erred in awarding the custody of the minor children solely

The applicable provision is Section 213 of the Family Code

which states that:
Section 213. In case of separation of the
parents, parental authority shall be exercised by
the parent designated by the Court. The Court shall
take into account all relevant considerations,
especially the choice of the child over seven years
of age, unless the parent is unfit.
No child under seven years of age shall be
separated from the mother, unless the court finds
compelling reasons to order otherwise.

to be unduly hurt. If she has erred, as in cases of

adultery, the penalty of imprisonment and the
(relative) divorce decree will ordinarily be
sufficient punishment for her. Moreover, her moral
dereliction will not have any effect upon the baby
who is as yet unable to understand the situation.

In case of legal separation of the parents, the custody of the

minor children shall be awarded to the innocent spouse, unless
otherwise directed by the court in the interest of the minor
children.[13] But when the husband and wife are living separately

[18]

and apart from each other, without decree of the court, the court
shall award the care, custody, and control of each child as will be
for his best interest, permitting the child to choose which parent he
prefers to live with if he is over seven (7) years of age unless the
parent so chosen be unfit to take charge of the child by reason of
moral depravity, habitual drunkenness or poverty.[14]
In all controversies regarding the custody of minors, the sole
and foremost consideration is the physical, educational, social and
moral welfare of the child concerned, taking into account the
respective resources and social and moral situations of the
contending parents.[15]
However, the law favors the mother if she is a fit and proper
person to have custody of her children so that they may not only
receive her attention, care, supervision but also have the
advantage and benefit of a mothers love and devotion for which
there is no substitute.[16]Generally, the love, solicitude and devotion
of a mother cannot be replaced by another and are worth more to
a child of tender years than all other things combined. [17] The Civil
Code Commission, in recommending the preference for the mother,
explained, thus:
The general rule is recommended in order
to avoid many a tragedy where a mother has
seen her baby torn away from her. No man can
sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception
allowed by the rule has to be for compelling
reasons for the good of the child: those cases
must indeed be rare, if the mothers heart is not

This preference favoring the mother over the father is even

reiterated in Section 6, Rule 99 of the Rules of Court (the Rule on
Adoption and Custody of Minors) underscoring its significance, to
wit:
SEC. 6. Proceedings as to child whose
parents are separated. Appeal. When husband
and wife are divorced or living separately and apart
from each other, and the question as to the care,
custody and control of a child or children of their
marriage is brought before a Regional Trial
Court by petition or as an incident to any
other proceeding, the court, upon hearing the
testimony as may be pertinent, shall award the
care, custody and control of each such child as will
be for its best interest, permitting the child to
choose which parent it prefers to live with if it be
over ten years of age, unless the parent so chosen
be unfit to take charge of the child by reason of
moral depravity, habitual drunkenness, incapacity,
or poverty. If upon such hearing, it appears that
both parents are improper persons to have the
care, custody, and control of the child, the court
may either designate the paternal or maternal
grandparent of the child, or his oldest brother or
sister, or some reputable and discreet person to
take charge of such child, or commit it to any
suitable asylum, childrens home, or benevolent
society. The court may in conformity with the
provisions of the Civil Code order either or both
parents to support or help support said child,
irrespective of who may be its custodian, and may
make any order that is just and reasonable
permitting the parent who is deprived of its care

and custody to visit the child or have temporary

custody thereof. Either parent may appeal from an
order made in accordance with the provisions of
this section. No child under seven years of age
shall be separated from its mother, unless
the court finds there are compelling
reasons therefor. (Emphasis supplied)

The above-quoted provision expressly acknowledges and

authorizes that the matter of care and custody of the children may
be raised and adjudicated as an incident to any proceeding, such
as a case for habeas corpus.
Evidently, absent any compelling reason to the contrary, the
trial court was correct in restoring the custody of the children to
the mother, herein respondent, the children being less than seven
years of age, at least at the time the case was decided. Moreover,
petitioners contention that respondent is unfit to have custody
over the minor children has not been substantiated as found by
both courts below. Thus, it is already too late for petitioner to
reiterate the assertion for only questions of law may be raised
before this Court. Furthermore, the determination of whether the

be paid except from the date of judicial or extrajudicial demand.

The

case

of Jocsonv.

The

Empire

Ins.

Co.

and Jocson Lagniton[20] explains the rationale for this rule:

x x x Support does
include
what
is
necessary for the education and clothing of the
person entitled thereto (Art. 290, New Civil
Code). But support must be demanded and the
right to it established before it becomes payable
(Art. 298, New Civil Code; Marcelo v. Estacio, 70
Phil. 215). For the right to support does not arise
from the mere fact of relationship, even from the
relationship of parents and children, but from
imperative necessity without which it cannot be
demanded, and the law presumes that such
necessity does not exist unless support is
demanded
(Civil
Code
of
the Philippines,
Annotated, Tolentino, Vol. 1, p. 181, citing
8 Manresa 685). In the present case, it does not
appear that support for the minors, be it only for
their education and clothing, was ever demanded
from their father and the need for it duly
established. The need for support, as already
stated, cannot be presumed, and especially must
this be true in the present case where it appears
that the minors had means of their own.[21]

mother is fit or unfit to have custody over the children is a matter

well within the sound discretion of the trial court, and unless it is

As intimated earlier, the Court agrees with the courts below

shown that said discretion has been abused the selection will not

that Section 6, Rule 99[22] of the Rules of Court permits the

be interfered with.[19]

ventilation of the question regarding the care and custody of the

children as an incident to any proceeding, even a habeas corpus

Consequently, the Court affirms the award of custody in

respondents favor.

proceeding. Petitioner would have us believe, however, that since

respondents petition did not include a prayer [23] for support of the
children in accordance with the above-quoted Family Code

Now, the issue of support.

provision, the trial court was not justified in awarding support in

respondents favor. In addition, petitioner claims that he did not

Article 203 of the Family Code states that the obligation to

give consent to the trial and the threshing out of the issue as it was

give support is demandable from the time the person who has a

not raised in the pleadings.[24] He claims that in fact, he testified

right to receive the same needs it for maintenance, but it shall not

on his financial status only to prove that he is financially able to

provide for his children and not for the purpose of determining the
amount of support.

[25]

Besides, he contends that the trial court did

not order the amendment of the pleadings to conform to the

evidencepresented pursuant to Section 5

[26]

Q:
A:

Which the respondent should furnish?

Yes, sir.

ATTY. CORTEZ

Rule 10 of the 1997

That is all for the witness, Your Honor.[28]

Rules of Civil Procedure, an aspect that supports his contention

that the parties never consented, expressly or impliedly, to try the
issue of support.[27]

Moreover, based on the transcript of stenographic notes,

petitioner was clearly made aware that the issue of support was

The

Court

is

not

convinced.

Contrary

to

petitioners

being deliberated upon, to wit:

assertions, respondent testified during trial, without any objection

on petitioners part, regarding the need for support for the

WITNESS:

childrens education and other necessities, viz:

WILSON SY: will be testifying under the
ADDL DIRECT EXAMINATION OF THE

same oath.[29]

WITNESS

xxxx
MERCEDES TAN UY-SY

Q:
Q:

A:
Q:
A:

With

the

kind

permission

of

this

Honorable Court.
Ms. Sy, the custody of the two minors[,]
of course[,] require some expenses on
your part notwithstanding that you said
you have savings intended for them, is
it not?
Yes, sir.
And what is the nature of these
expenses that you expect to disburse
for the children?
For the medicine or health care.

Q:
A:

What else?
For education, for emergency expenses,
for basically for food.

Q:

In your estimate, how much would these

expenses be per month?
Well, I think, perhaps P50,000.00, sir.

A:

ATTY. ALBON:
Q:
In the hearing of July 23, 1994 as
appearing
on
page
3,
Mercedes Sy testified that she would be
needing P50,000.00 a month expenses
for her children, what can you say about
that?
A:

The

That is a dillusion [sic] on her part.[30]

trial

court

judge

even

propounded

questions

to

petitioner regarding his sources of income for the purpose of

determining the amount of support to be given to the children:

COURT:
I want to find out how much his income
now for the purposes of giving support

to the children. Please answer the

question.

Q:
A:

WITNESS:

COURT

A:

Q:

Shares of stocks.

ATTY. CORTEZ:
Q:

A:

A shares [sic] of stock is the evidence of

your investment in the corporation. My
question is: What investment did you
put in to enable you to get a share, was
it money or property?
There is no money but it was given by
my father.

A:

Q:

A:
COURT:
Q:
A:
Q:
A:
Q:
A:

What is the value of that [sic] shares?

I [do not] give any importance.

For purposes of this case, the Court is

asking you how much is your share?
I [do not ] how to appraise.

More or less, how much? Use the word

more or less, is that one million more or
less, 2 million, more or less, 10 million,
more or less? Anyway, this is not a BIR
proceeding, this is a Court proceeding?
I want to speak the truth but I [do not]
know. I did not even see the account.

Upon the death of your father you just

inherited it?
Before.

COURT:

After the death, did you not acquire

some of the shares of your father?
No, your Honor.

ATTY. CORTEZ

What happened to the shares of your

father?
It is with my mother.

Q:

Proceed.

xxxx

A:

At that time of your fathers death[,] you

were [sic]already holding ten (10)
shares or was it less?
More.

Q:
A:

More than ten (10) shares?

Yes, sir.

xxxx
COURT:
Never mind the share of the mother.
What is material is his share.

COURT
Q:

ATTY. CORTEZ:
A:
Q:
A:

How many shares do you have in the

corporation?
Right now I have only ten (10) shares.

What is the par value of that one (1)

share?
I [do not] know, your Honor.

xxxx
COURT:

Let it remain that he owns ten (10)

shares.
ATTY. CORTEZ:
xxxx
A:

Yes, 10 shares. The other shares I

already sold it.

Q:
A:

How many shares did you sell?

I only have 10 shares now. I dont know
how many shares that I have left. I only
know the 20 shares.[31]

not amended. Amendment is also unnecessary

when only clerical error or non substantial
matters are involved, as we held in Bank of the
Philippine Islands vs. Laguna (48 Phil. 5).
InCo Tiamco v. Diaz (75 Phil. 672), we stressed
that the rule on amendment need not be
applied rigidly, particularly where no surprise or
prejudice is caused the objecting party. And in
the recent case of National Power Corporation v.
Court of Appeals (113 SCRA 556), we held that
where there is a variance in the defendants
pleadings and the evidence adduced by it at the
trial, the Court may treat the pleading as
amended to conform with the evidence.[35]

The Court likewise affirms the award of P50,000.00 as

support for the minor children. As found by both courts, petitioners
representations regarding his familys wealth and his capability to
Rule 10 of the 1997 Rules of Civil

provide for his family more than provided a fair indication of his

Procedure, since the issue of support was tried with the implied

financial standing even though he proved to be less than forthright

consent of the parties, it should be treated in all respects as if it

on the matter.[36] In any event, this award of support is merely

had been raised in the pleadings. And since there was implied

provisional as the amount may be modified or altered in

consent, even if no motion had been filed and no amendment had

accordance with the increased or decreased needs of the needy

been ordered, the Court holds that the trial court validly rendered a

party and with the means of the giver.[37]

Applying Section 5,

judgment on the issue.

[32]

[33]

Significantly, in the case of Bank of

America v. American Realty Corporation,[34] the Court stated:

WHEREFORE, the Decision dated 29 February 1996 of the

Eleventh Division of the Court of Appeals in C.A. G.R. SP No. 38936

There have been instances where the

Court has held that even without the necessary
amendment, the amount proved at the trial may
be validly awarded, as in Tuazon v. Bolanos (95
Phil. 106), where we said that if the facts shown
entitled plaintiff to relief other than that asked
for, no amendment to the complaint was
necessary, especially where defendant had
himself raised the point on which recovery was
based. The appellate court could treat the
pleading as amended to conform to the
evidence although the pleadings were actually

and its Resolution[38] dated 15 April 1996 are AFFIRMED. Costs

against petitioner.
SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:
REYNATO
PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO
Associate Justice

S.

CONCHITA CARPIO MORALES

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
[1]

ATTESTATION
I attest that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and
the Division Chairpersons Attestation, it is hereby certified that the
conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the
Courts Division.

Rollo, pp. 27-52; dated 24 May 1996.

Id. at 7-20; penned by Associate Justice Minerva

P. Gonzaga-Reyes with the concurrence of Associate Justices
Buenaventura J. Guerrero and Romeo A. Brawner.
[2]

[3]

Id. at 70-72.

[4]

Id. at 8.

[5]

Id. at 9-10, 31.

Id. at 7; dispositive portion of the Decision dated 14

December 1994 penned by Hon. Demetrio M. Batario, Jr.
[6]

[7]

Id. at 8

[8]

Id. at 15-16.

[9]

Id. at 17-19.

[10]

Id. at 21-23; in a Resolution dated 15 April 1996.

[11]

Id. at 37.

[12]

Id. at 88-90; Comment dated 7 October 1996.

FAMILY CODE, Art. 63; TOLENTINO, CIVIL CODE OF

THE PHILIPPINES, Vol. 1, p. 609.
[13]

[14]

Id. at 610.

Unson III v. Navarro, No. 52242, 17 November 1980,

101 SCRA 183, 189.

of the Civil Code order either or both parents to support or help

support said child, irrespective of who may be its custodian, and
may make any order that is just and reasonable permitting the
parent who is deprived of its care and custody to visit the child or
have temporary custody thereof. Either parent may appeal from an
order made in accordance with the provisions of this section. No
child under seven years of age shall be separated from its mother,
unless the court finds there are compelling reasons therefor.
(Emphasis supplied)

[15]

STA. MARIA, JR., PERSONS AND FAMILY RELATIONS, p.

697, citing Peavey v. Peavey, 85 Nev. 571, 460 P2d 110.
[16]

[17]

Id. at 698, citing Horst v. Mclain, 466 Sw2d 187.

[18]

Lacson v. San Jose-Lacson, 133 Phil. 884, 894-895

[19]

Pelayo v. Lavin Aedo, 40 Phil. 501, 504 (1919).

[20]

103 Phil. 580 (1958).

(1968).

[21]

[23]

Records, Vol. 1, p. 3.

WHEREFORE, it is most respectfully prayed that a [W]rit of

Habeas Corpus be issued by this Honorable Court, commanding
Wilson
L. Sy to
produce
the
bodies
of
Vanessa
and
JeremiahUy Sy before this court at the time and place specified, and
to summon the respondent then and there to appear and to show
cause for their detention; and that, after hearing, said minors be
turned over to the care and custody of their mother
Mercedes Uy Sy.
[24]

CA rollo, pp. 16-17.

[25]

Id. at 19 of Petitioners Memorandum.

Id. at 582-583.
SEC. 5. Amendment to conform to or authorize
presentation of evidence. When issues not raised by the
pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects, as if they had been
raised in the pleadings. Such amendment of the pleadings as may
be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any
time, even after judgment; but failure to amend does not affect
the result of the trial of these issues. If evidence is objected to at
the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and
shall do so with liberality if the presentation of the merits of the
action
and
the
ends
of
substantial
justice
will
be subserved thereby. The court may grant a continuance to
enable the amendment to be made.
[26]

SEC. 6. Proceedings as to child whose parents are

separated. Appeal. When husband and wife are divorced or living
separately and apart from each other, and the question as to the
care, custody and control of a child or children of their marriage is
brought before a Regional Trial Court by petition or as an
incident to any other proceeding, the court, upon hearing the
testimony as may be pertinent, shall award the care, custody and
control of each such child as will be for its best interest, permitting
the child to choose which parent it prefers to live with if it be over
ten years of age, unless the parent so chosen be unfit to take
charge of the child by reason of moral depravity, habitual
drunkenness, incapacity, or poverty. If upon such hearing, it
appears that both parents are improper persons to have the care,
custody, and control of the child, the court may either designate the
paternal or maternal grandparent of the child, or his oldest brother
or sister, or some reputable and discreet person to take charge of
such child, or commit it to any suitable asylum, childrens home, or
benevolent society. The court may in conformity with the provisions
[22]

[27]

Rollo, p. 17.

[28]

Records, Vol. 1; TSN, dated 25 July 1994, p. 3.

[29]

Id. at 547; TSN, dated 4 November 1994, p. 6.

[30]

Id. at 552; TSN, 4 November 1994, p. 11.

[31]

Id. at 563-566, TSN, 4 November 1994, pp. 22-25.

SEC. 5. Amendment to conform to or authorize

presentation of evidence. When issues not raised by the
pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the pleadings as may
be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any
time, even after judgment; but failure to amend does not affect
the result of the trial of these issues. If evidence is objected to at
the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and
shall do so with liberality if the presentation of the merits of the
action
and
the
ends
of
substantial
justice
will
be subserved thereby. The court may grant a continuance to
enable the amendment to be made.

JENIE SAN JUAN DELA CRUZ and

minor CHRISTIAN DELA CRUZ
AQUINO, represented by JENIE
SAN JUAN DELA CRUZ,

G.R. No. 177728

[32]

[33]

HERRERA, REMEDIAL LAW, Vol.1, p. 598.

[34]

378 Phil. 1279 (1999).

[35]

Id. at 1301-1302.

[36]

Rollo, pp. 18-19.

[37]

Advincula v. Advincula, 119 Phil. 448, 451 (1964).

[38]

Supra note 3.

Petitioners,

versus

Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,
CHICO-NAZARIO,
LEONARDO-DE CASTRO, and

RONALD PAUL S. GRACIA, in his

capacity as City Civil Registrar of
Antipolo City,

PERALTA,* JJ.

Respondent.

Promulgated:

July 31, 2009

SECOND DIVISION

x-----------------------------------------------x

Jenie applied for registration of the childs birth, using

Dominiques surname Aquino, with the Office of the City Civil
Registrar, Antipolo City, in support of which she submitted the
childs Certificate of Live Birth,2[2] Affidavit to Use the Surname of

DECISION

the Father3[3] (AUSF) which she had executed and signed, and
Affidavit of Acknowledgment executed by Dominiques father
Domingo Butch Aquino.4[4] Both affidavits attested, inter alia, that
during

CARPIO MORALES, J.:

For several months in 2005, then 21-year old petitioner

Jenie San Juan Dela Cruz (Jenie) and then 19-year old Christian

the

lifetime

of

Dominique,

he

had

continuously

acknowledged his yet unborn child, and that his paternity had
never been questioned. Jenie attached to the AUSF a document
entitled AUTOBIOGRAPHY which Dominique, during his lifetime,
wrote in his own handwriting, the pertinent portions of which read:

Dominique Sto. Tomas Aquino (Dominique) lived together as

husband and wife without the benefit of marriage. They resided in
AQUINO, CHRISTIAN DOMINIQUE S.T.

the house of Dominiques parents Domingo B. Aquino and Raquel

Sto. Tomas Aquino at Pulang-lupa, Dulumbayan, Teresa, Rizal.

AUTOBIOGRAPHY

On September 4, 2005, Dominique died. 1[1] After almost

IM CHRISTIAN DOMINIQUE STO. TOMAS

AQUINO, 19 YEARS OF AGE TURNING 20 THIS
COMING OCTOBER 31, 2005.5[5]
I RESIDE AT
PULANG-LUPA
STREET
BRGY.
DULUMBAYAN,
TERESA, RIZAL. I AM THE YOUNGEST IN OUR

two months, or on November 2, 2005, Jenie, who continued to live

with Dominiques parents, gave birth to her herein co-petitioner
minor child Christian Dela Cruz Aquino at the Antipolo Doctors
Hospital, Antipolo City.

2
3

FAMILY. I HAVE ONE BROTHER NAMED JOSEPH

BUTCH STO. TOMAS AQUINO. MY FATHERS NAME IS
DOMINGO BUTCH AQUINO AND MY MOTHERS
NAME IS RAQUEL STO. TOMAS AQUINO. x x x.

176 of Executive Order No. 209, otherwise

Known
as
the
Family
Code
of
the
Philippines]) provides that:

xxxx
Rule 7. Requirements for the Child to Use the
Surname of the Father

AS OF NOW I HAVE MY WIFE NAMED JENIE

DELA CRUZ. WE MET EACH OTHER IN OUR
HOMETOWN, TEREZA RIZAL. AT FIRST WE BECAME
GOOD FRIENDS, THEN WE FELL IN LOVE WITH
EACH OTHER, THEN WE BECAME GOOD COUPLES.
AND AS OF NOW SHE IS PREGNANT AND FOR
THAT WE LIVE TOGETHER IN OUR HOUSE NOW.
THATS ALL.6[6] (Emphasis and underscoring
supplied)

7.1 For Births Not Yet Registered

7.1.1 The illegitimate child shall use

the surname of the father if a
public document is executed by
the father, either at the back of
the Certificate of Live Birth or
in a separate document.

By letter dated November 11, 2005,7[7] the City Civil

Registrar of Antipolo City, Ronald Paul S. Gracia (respondent),

7.1.2 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:

denied Jenies application for registration of the childs name in this

wise:

7.

Rule 7 of Administrative Order No. 1, Series of

2004 (Implementing Rules and Regulations of
Republic Act No. 9255 [An Act Allowing
Illegitimate Children to Use the Surname of
their Father, Amending for the Purpose, Article

a. AUSF8[8]
b. 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:

5
6
7

1. Employment records
2. SSS/GSIS records
3. Insurance
4.
Certification of
membership in any organization
5. Statement of Assets and
Liability
6. Income Tax Return (ITR)

In summary, the child cannot use the surname of

his father because he was born out of wedlock and
the father unfortunately died prior to his birth and
has no more capacity to acknowledge his paternity
to the child (either through the back of Municipal
Form
No.
102

Affidavit
of
Acknowledgment/Admission of Paternity or the
Authority to Use the Surname of the Father).
(Underscoring supplied)

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.
Provided, the father has the right to institute an
action before the regular courts to prove nonfiliation during his lifetime. The legitime of each
illegitimate child shall consist of one-half of the
legitime of a legitimate child. (Emphasis and
underscoring supplied)

They maintained that the Autobiography executed by Dominique

constitutes an admission of paternity in a private handwritten
instrument

Jenie and the child promptly filed a complaint 9[9] for

within

the

contemplation

of

the

above-quoted

provision of law.

injunction/registration of name against respondent before the

Regional Trial Court of Antipolo City, docketed as SCA Case No. 06539, which was raffled to Branch 73 thereof. The complaint alleged
that, inter alia, the denial of registration of the childs name is a
violation of his right to use the surname of his deceased father

For failure to file a responsive pleading or answer despite

service of summons, respondent was declared in default.

under Article 176 of the Family Code, as amended by

Republic Act (R.A.) No. 9255,10[10] which provides:

Jenie thereupon presented evidence ex-parte. She testified

on the circumstances of her common-law relationship with

10

Dominique and affirmed her declarations in her AUSF that during

his lifetime, he had acknowledged his yet unborn child. 11[11] She

recognizes paternity to the child. (Underscoring

supplied)

offered Dominiques handwritten Autobiography (Exhibit A) as her

documentary evidence-in-chief.12[12] Dominiques lone brother,
Joseph Butch S.T. Aquino, also testified, corroborating Jenies
declarations.13[13]

The trial court held that even if Dominique was the author of the
handwritten Autobiography, the same does not contain any
express recognition of paternity.

By Decision14[14] of April 25, 2007, the trial court

dismissed the complaint for lack of cause of action as the
Autobiography

was

unsigned,

citing

paragraph

2.2,

Rule

(Definition of Terms) of Administrative Order (A.O.) No. 1,

Series of 2004 (the Rules and Regulations Governing the
Implementation

of

R.A.

9255)

which

defines

Hence, this direct resort to the Court via Petition for Review
on Certiorari raising this purely legal issue of:

private

handwritten document through which a father may acknowledge

WHETHER OR NOT THE UNSIGNED
HANDWRITTEN STATEMENT OF THE DECEASED
FATHER OF MINOR CHRISTIAN DELA CRUZ CAN BE
CONSIDERED AS A RECOGNITION OF PATERNITY IN
A PRIVATE HANDWRITTEN INSTRUMENT WITHIN
THE CONTEMPLATION OF ARTICLE 176 OF THE
FAMILY CODE, AS AMENDED BY R.A. 9255, WHICH
ENTITLES THE SAID MINOR TO USE HIS FATHERS
SURNAME.15[15] (Underscoring supplied)

an illegitimate child as follows:

2.2 Private handwritten instrument an

instrument executed in the handwriting of the
father and duly signed by him where he expressly

11
12

Petitioners contend that Article 176 of the Family Code, as

amended, does not expressly require that the private handwritten

13

instrument containing the putative fathers admission of paternity

must be signed by him. They add that the deceaseds handwritten

14

15

Autobiography, though unsigned by him, is sufficient, for the

requirement

in

the

above-quoted

paragraph

2.2

of

Article 176 of the Family Code, as amended by R.A. 9255,

the

permits an illegitimate child to use the surname of his/her father if

Administrative Order that the admission/recognition must be duly

the latter had expressly recognized him/her as his offspring

signed by the father is void as it unduly expanded the earlier-

through the record of birth appearing in the civil register, or

quoted provision of Article 176 of the Family Code. [16]

through an admission made in a public or private handwritten

16

instrument. The recognition made in any of these documents is, in

itself, a consummated act of acknowledgment of the childs
paternity; hence, no separate action for judicial approval is
Petitioners further contend that the trial court erred in not

necessary.19[19]

finding that Dominiques handwritten Autobiography contains a

clear and unmistakable recognition of the childs paternity. 17[17]
Article 176 of the Family Code, as amended, does not,
indeed, explicitly state that the private handwritten instrument
In its Comment, the Office of the Solicitor General (OSG)

acknowledging the childs paternity must be signed by the putative

submits that respondents position, as affirmed by the trial court, is

father. This provision must, however, be read in conjunction with

in consonance with the law and thus prays for the dismissal of the

related provisions of the Family Code which require that recognition

petition.

by the father must bear his signature, thus:

It further submits that Dominiques Autobiography

merely acknowledged Jenies pregnancy but not [his] paternity of

the child she was carrying in her womb.18[18]
Art. 175. Illegitimate children may establish
their illegitimate filiation in the same way and on
the same evidence as legitimate children.
xxxx

16

Art. 172. The filiation of legitimate children

is established by any of the following:

17

(1) The record of birth appearing in

the civil register or a final judgment; or

18

19

(2) An admission of legitimate

filiation in a public document or a private
handwritten instrument and signed by the
parent concerned.
x x x x (Emphasis
supplied)

and underscoring

Jenies

testimony

is

corroborated

by

the

Affidavit

of

Acknowledgment of Dominiques father Domingo Aquino and

testimony of his brother Joseph Butch Aquino whose hereditary
rights could be affected by the registration of the questioned
recognition

of

the

child.

These

circumstances

indicating

Dominiques paternity of the child give life to his statements in his

Autobiography that JENIE DELA CRUZ is MY WIFE as WE FELL
IN LOVE WITH EACH OTHER and NOW SHE IS PREGNANT AND
FOR THAT WE LIVE TOGETHER.
That a father who acknowledges paternity of a child
through a written instrument must affix his signature thereon is
clearly implied in Article 176 of the Family Code. Paragraph 2.2,
Rule 2 of A.O. No. 1, Series of 2004, merely articulated such

In Herrera v. Alba,21[21] the Court summarized the laws,

requirement; it did not unduly expand the import of Article 176

rules, and jurisprudence on establishing filiation, discoursing in

as claimed by petitioners.

relevant part:

In the present case, however, special circumstances exist

to hold that Dominiques Autobiography, though unsigned by him,

Laws, Rules, and Jurisprudence

Establishing Filiation

substantially satisfies the requirement of the law.

The relevant provisions of the Family Code

provide as follows:
ART. 175.Illegitimate children may establish
their illegitimate filiation in the same way and on
the same evidence as legitimate children.

First, Dominique died about two months prior to the childs

birth.

Second, the relevant matters in the Autobiography,

xxxx

unquestionably handwritten by Dominique, correspond to the facts

culled from the testimonial evidence Jenie proffered. [20] Third,
20

20

ART. 172.

21

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.
The Rules on Evidence include provisions on
pedigree. The relevant sections of Rule 130
provide:
SEC. 39. Act or declaration about pedigree.
The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of
another person related to him by birth or marriage,
may be received in evidence where it occurred
before the controversy, and the relationship
between the two persons is shown by evidence
other than such act or declaration. The word
"pedigree" includes relationship, family genealogy,
birth, marriage, death, the dates when and the
places where these facts occurred, and the names
of the relatives. It embraces also facts of family
history intimately connected with pedigree.
SEC. 40.
Family
reputation
or
tradition regarding pedigree. The reputation or
tradition existing in a family previous to the
controversy, in respect to the pedigree of any one
of its members, may be received in evidence if the
witness testifying thereon be also a member of the

family, either by consanguinity or affinity. Entries in

family bibles or other family books or charts,
engraving on rings, family portraits and the like,
may be received as evidence of pedigree.
This Court's rulings further specify what
incriminating acts are acceptable as evidence to
establish filiation. In Pe Lim v. CA, a case petitioner
often cites, we stated that the issue of paternity
still has to be resolved by such conventional
evidence as the relevant incriminating verbal
and written acts by the putative father. Under
Article 278 of the New Civil Code, voluntary
recognition by a parent shall be made in the record
of birth, a will, a statement before a court of
record, or in any authentic writing. To be
effective, the claim of filiation must be made
by the putative father himself and the writing
must be the writing of the putative father. A
notarial agreement to support a child whose
filiation is admitted by the putative father was
considered acceptable evidence. Letters to the
mother vowing to be a good father to the child and
pictures of the putative father cuddling the child on
various occasions, together with the certificate of
live birth, proved filiation. However, a student
permanent record, a written consent to a father's
operation, or a marriage contract where the
putative father gave consent, cannot be taken as
authentic writing. Standing alone, neither a
certificate of baptism nor family pictures are
sufficient to establish filiation. (Emphasis and
underscoring supplied.)

In the case at bar, there is no dispute that the earlier

quoted statements in Dominiques Autobiography have been made
and written by him. Taken together with the other relevant facts
extant herein that Dominique, during his lifetime, and Jenie were

living together as common-law spouses for several months in 2005

Our laws instruct that the welfare of the child shall be the

at his parents house in Pulang-lupa, Dulumbayan, Teresa, Rizal;

paramount consideration in resolving questions affecting him. 22

she was pregnant when Dominique died on September 4, 2005;

[22] Article 3(1) of the United Nations Convention on the Rights of

and about two months after his death, Jenie gave birth to the child

a Child of which the Philippines is a signatory is similarly emphatic:

they sufficiently establish that the child of Jenie is Dominiques.

Article 3
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

1.
In all actions concerning children, whether
undertaken by public or private social welfare
institutions,
courts
of
law,
administrative
authorities or legislative bodies, the best interests
of the child shall be a primary consideration.23[23]
(Underscoring supplied)

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

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.24[24] Too, (t)he State as
parens patriae affords special protection to children from abuse,

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

corroborative of such other evidence.

parent

as

it

is

22

merely

23
24

exploitation

and

other

conditions

prejudicial

to

their

development. [25]
25

CONCHITA
CARPIO MORALES
Associ
ate Justice

WE CONCUR:
In the eyes of society, a child with an unknown father bears
the stigma of dishonor.

It is to petitioner minor childs best

interests to allow him to bear the surname of the now deceased

Dominique and enter it in his birth certificate.

WHEREFORE, the petition is GRANTED. The City Civil

Registrar of Antipolo City is DIRECTED to immediately enter the
surname of the late Christian Dominique Sto. Tomas Aquino as the
surname of petitioner minor Christian dela Cruz in his Certificate of
Live Birth, and record the same in the Register of Births.

SO ORDERED.

25

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO