GRACE M. GRANDE vs. PATRICIO T. ANTONIO G.R. No. 206248 February 18, 2014

Petitioner Grace and respondent Patricio lived together as husband and wife, although Antonio was already married to someone else. Out of this illicit relationship, two sons were born: Andre and Jerard. The children were not expressly recognized by respondent as his own in the Record of Births of the children in the Civil Registry. The parties’ relationship, however, eventually turned sour, and Grace left for the United States with her two minor children. This prompted respondent Patricio to file a Petition for Judicial Approval of Recognition with Prayer to take Parental Authority, Parental Physical Custody, Correction/Change of Surname of Minors and for the Issuance of Writ of Preliminary Injunction before the RTC.

          Q1: Who among Grace and Patricio shall have the sole parental authority and                  physical custody over their two minor children? Explain with legal basis.

 

A: Grace shall have the parental authority and physical custody over their two minor children. The law provides under Art. 176 of the Family Code as amended that illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. Since parental authority is given to the mother, then custody over the minor children also goes to the mother, unless she is shown to be unfit. Here, respondent Patricio failed to prove that petitioner Grace committed any act that adversely affected the welfare of the children or rendered her unsuitable. Hence, respondent’s prayer has no legal mooring.

Q2: Does the father, Patricio, have the right to compel the use of his surname by his illegitimate children upon his recognition of their filiation? Explain with legal basis.

 

A: No, the father, Patricio, has no right to compel the use of his surname by his illegitimate children upon his recognition of their filiation. The amended Art. 176 of the Family Code provides that illegitimate children may use the surname of their father if their filiation has been expressly recognized by their 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. However, Art. 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is not the father (herein respondent) or the mother (herein petitioner) who is granted by law the right to dictate the surname of their illegitimate children. The use of the word "may" in the provision readily shows that an acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate father. The word "may" is permissive and operates to confer discretion upon the illegitimate children. Therefore, Patricio cannot compel the use of his surname by his illegitimate children upon recognition of their filiation.