Sunday, January 21, 2007

Family Code of the Philippines: Primer on paternity, filiation and legitimate children

Articles 163 up to 174 of the Family Code deal with the issues of paternity, filiation, and legitimate children. (We will discuss in the next primer the Family Code provisions on illegitimate children.) At the latter portion of this primer are the higlights of the Supreme Court rulings in Locsin vs. Locsin (on the importance of a birth certificate in proving filiation, and the lack of value of an alleged child’s picture taken at the funeral of the alleged father) and De Jesus vs. Dizon (on the presumption that children born in wedlock are legitimate).

What are the kinds of filiation of children?

The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate.

What is the status of a child born during the marriage of its parents?

Children conceived or born during the marriage of the parents are legitimate.

What about children conceived by artificial insemination?

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.

Who are illegitimate children?

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Family Code.

How can the legitimacy of a child be impugned or questioned?

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:

[a] the physical incapacity of the husband to have sexual intercourse with his wife;

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

[c] serious illness of the husband, which absolutely prevented sexual intercourse;

[2] That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

[3] That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.

What if the mother states that her child is in fact illegitimate? What if the mother was sentenced by a court as being an adulteress?

The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

What rules govern when the marriage is terminated and the mother marries within 3oo days after the former marriage is terminated?

If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:

[1] A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage;

[2] A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.

Who has the burden of proof in proving or disproving the filiation of a child born after 300 days following the termination of the former marriage?

The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy.

When should the action to impugn or question the legitimacy of a child be filed in court?

[1] The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

[2] If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the paragraph above or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier.

In what instances can the heirs of a husband impugn or question the filiation of an alleged child?

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;

[2] If he should die after the filing of the complaint without having desisted therefrom; or

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

How can the filiation of legitimate children be proved?

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.

Within what periods should the claim for legitimacy be pursued?

The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

What are the rights of legitimate children?

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;

[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

[3] To be entitled to the legitime and other successional rights granted to them by the Civil Code.

Locsin vs. Locsin, G.R. No. 146737, December 10, 2001

A birth certificate is a formidable piece of evidence prescribed by both the Civil Code and Article 172 of the Family Code for purposes of recognition and filiation. However, birth certificate offers only prima facie evidence of filiation and may be refuted by contrary evidence. Its evidentiary worth cannot be sustained where there exists strong, complete and conclusive proof of its falsity or nullity. In this case, respondent's Certificate of Live Birth No. 477 entered in the records of the Local Civil Registry [from which Exhibit "D" was machine copied] has all the badges of nullity. Without doubt, the authentic copy on file in that office was removed and substituted with a falsified Certificate of Live Birth.

Incidentally, respondent's photograph with his mother near the coffin of the late Juan C. Locsin cannot and will not constitute proof of filiation, lest we recklessly set a very dangerous precedent that would encourage and sanction fraudulent claims. Anybody can have a picture taken while standing before a coffin with others and thereafter utilize it in claiming the estate of the deceased.


De Jesus vs. Dizon, G.R. No. 142877, October 2, 2001

The petition involves the case of two illegitimate children who, having been born in lawful wedlock, claim to be the illegitimate scions of the decedent in order to enforce their respective shares in the latter’s estate under the rules on succession.

The filiation of illegitimate children, like legitimate children, is established by (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 thereof, 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 due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. Where, instead, a claim for recognition is predicated on other evidence merely tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record or an authentic writing, judicial action within the applicable statute of limitations is essential in order to establish the child’s acknowledgment.

A scrutiny of the records would show that petitioners were born during the marriage of their parents. The certificates of live birth would also identify Danilo de Jesus as being their father.
There is perhaps no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate. This presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of access between the spouses during the first 120 days of the 300 days which immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such a way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual intercourse.


Succinctly, in an attempt to establish their illegitimate filiation to the late Juan G. Dizon, petitioners, in effect, would impugn their legitimate status as being children of Danilo de Jesus and Carolina Aves de Jesus. This step cannot be aptly done because the law itself establishes the legitimacy of children conceived or born during the marriage of the parents. The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the father, or in exceptional instances the latter’s heirs, can contest in an appropriate action the legitimacy of a child born to his wife. Thus, it is only when the legitimacy of a child has been successfully impugned that the paternity of the husband can be rejected.

13 comments :

Anonymous said...

What is the status of a child after the declaration of absolute nullity of marriage? after declaration of nullity of marriage? Assuming that a child is illegitimate after the declaration of absolute nullity, wouldn't that affect a right vested in him already as a legitimate child (legitime)if he is subsequently considered as an illegitimate child?

Atty. Gerry T. Galacio said...

Children of parents whose marriage was declared null and void under Article 36 of the Family Code are considered LEGITIMATE even after the declaration of nullity.

This is provided for by Article 54 which states, “Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate”

gloryshel1986 said...

are the childrens born from 1986-2003 can be considered as legitimate even if the parents are not married because the father was legally married to the former wife during the birth of the child. in their birth certificate ,fathers surname was there but their father wasnt annuled until now. are they legitimate or not? are they can be legitimized or not?

Anonymous said...

a 17yr old mother gave birth to a child here in the phils. the father is also 17yrs old. they agreed not to get married yet. at the time of birth, the father of the child is un the u.s. he is willing to give his name to their child however he is not here to physically sign the birth certificate. is it possible to put the father's name at the child's birth certificate even if he is not here to sign the document?

Atty. Gerry T. Galacio said...

Under RA 9255, the guy can issue what is called an AUSF (Affidavit To Use Surname of the Father). There are samples of the AUSF available on the Internet. He can copy this sample, print it out and then have it notarized or sworn before Philippine embassy or consulate officials in the US. He can then mail this sworn AUSF to the girl who can then submit it to the Local Civil Registrar.

Anonymous said...

As per the previous post....

If the birth certificate is already issued by the hospital/civil registry but there are no mention of a fathers name and the baby is carrying the mothers last name, would it be possible to change the birth certificate as to mentin the fathers name and use the fathers last name?

What are the procedures in doing this since the father is willing to give the child his last name but he is not in the Phils. and not a Filipino citizen.

Atty. Gerry T. Galacio said...

Please read my post “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines” (look for the link in the sidebar).

Go to the Local Civil Registrar of the town or city which issued the birth certificate and ask for a sample format for an AUSF (Affidavit to Use the Surname of the Father). You can ask the father to sign this affidavit, have it notarized in that country where he is and then you can file the AUSF with the LCR.

The LCR will not issue a new birth certificate but will annotate it, indicating the new surname that the child will now be using.

Anonymous said...

For follow up Atty., when annotation is done and they want to make a passport for the child since BC from NSO is required, will the BC frm NSO same as on the LCR that have the annotation or a new BC will be issued by the NSO with complete details as to indicate the fathers name & last name?

Atty. Gerry T. Galacio said...

The birth certificate from the NSO will be the same as that from the LCR. A new birth certificate will not be issued, only the annotated birth certificate.

Anonymous said...

Hi. I'm single and I have a 10-year old son. We are in the process of obtaining visas to stay in Switzerland with my boyfriend. I just found out that the Swiss embassy will require the consent of my son's father. Unfortunately, he and I have not been in the best of terms for several years now. He has never given support and has not communicated with my son for the past 2 - 3 years. Is there a legal document that I can apply for or have done to state paternal abandonment or to at least clearly say that it is not necessary for me to get the father's consent for ANYTHING that concerns my son?

Atty. Gerry T. Galacio said...

Numerous women and/or their foreign fianc├ęs or husbands) have e-mailed me about problems similar to your situation.

Your son is illegitimate and so under Article 176 of the Family Code, sole parental authority belongs to you. Even if, for example, your son is using the biological father’s surname in the birth certificate, he is still illegitimate. Full custody belongs to you. What the father has is visitation rights.

The problem is that foreign embassies are not aware of the provision of Article 176 of the Family Code. Several people have e-mailed me because their embassies (US, Canadian, Australian, etc) have been asking for consent from the biological fathers for their children to immigrate with them.

Filing a case in court (like a petition for declaratory relief) is practically useless since the courts will not declare that you have sole parental authority and full custody over your illegitimate son. This is because Article 176 already expressly provides for these authority and custody in your favor.

Perhaps you can ask the following to issue a letter or certification addressed to you and your future husband, with copy furnished to the Swiss embassy, (or directly addressed to the embassy) as to what Article 176 provides:

[1] The PAO or the Public Attorney’s Office located at the DOJ compound in Padre Faura St. Manila; the PAO is headed by Atty. Persida Acosta who is very accommodating. She’s got an online column for the Manila Times.

[2] The UP Law Center in Diliman, Quezon City is the official repository of Philippine laws. You can ask for a certified copy of Article 176 or of the whole Family Code. At the same time you can try to ask the OLA (Office of Legal Aid) of the UP College of Law, also in Diliman, to issue this letter or certification.

[3] Makati City-based law firms (especially those with international practice or clientele) which can issue this letter or certification directly to the Swiss embassy.

Please also try to contact Atty. Mike Templo at http://crossingborderstv.multiply.com/ (he is an immigration lawyer). He might be able to help you with your concerns. I do not know him personally but I have watched portions of his television program.

Donabele said...

atty. please help me, i want to have my child's full custody. her father has signed in her birth certificate which means that he acknowledged her but after a few months he left us with. we only communicate in emails and he is willing to give me the custody or even give up his paternal rights so that my child can use my surname again. by the way we are not married. what are the steps or the process for this. thank you in advance please help me.

Atty. Gerry T. Galacio said...

Donabele,

[1] Your child is illegitimate even if he/she is using the biological father’s surname in the birth certificate. Under Article 176 of the Family Code, you have sole parental authority over your child. This means that custody and all decisions over your child belong to you.

What the father has is visitation right, not “paternal right”. Please read my Legal Updates “Visitation rights over illegitimate children”. If you and the father cannot agree on the terms and conditions of the visitation, then either he or you should file a petition in court to set these terms and conditions.

[2] “he is willing to give me the custody or even give up his paternal rights so that my child can use my surname again”

Please read my post “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines”. As I discussed in that post, you will find it difficult if not impossible to have your child’s surname changed from that of the father to yours.

[3] If your ex refuses to give you custody of your child or harasses you, you can regain custody through a Protection Order under RA 9262 (please read my RA 9262 posts; look for the links in the sidebar). You can ask the help of government agencies (DSWD, PNP, NBI, etc) whose contact information I listed in the sidebar.