I have previously written about what surname illegitimate children can use and the problems and issues with RA 9255. As you may recall, RA 9255 amended Article 176 of the Family Code, giving illegitimate children the right to use the surname of their biological father:
 if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, orThe first instance takes place when the father signs the affidavit of acknowledgment (or admission of paternity) of the illegitimate child’s birth certificate.
 if the father makes an admission of his paternity either in a public document or private handwritten instrument.
In the second instance, the Implementing Rules and Regulations (IRR) seem to be confused as to what RA 9255 requires. Please take note that the father can execute a public document admitting his paternity of the child. What is a “public document”? When a document is notarized, it becomes a public document. Thus when a father executes a document admitting his paternity and the document is notarized, it becomes a public document. The public document may be titled simply as “Affidavit”, “Affidavit of acknowledgment” or “Affidavit admitting paternity” or some other terms. In fact, the public document may be titled “Affidavit to use the surname of the father” and it will comply with the requirements of RA 9255 on public documents. One woman e-mailed asking me what the difference was between a public document and an AUSF since she was being required by a Local Civil Registrar to submit both.
The IRR of RA 9255 however differentiates between a “public document” and an AUSF (“Affidavit to use the surname of the father)”. The IRR states that the AUSF is used in cases where recognition is made through a private handwritten instrument, or when the birth has already been registered under the mother's surname with or without father's recognition.” Who executes the AUSF? From the IRR, person or persons who can issue the AUSF are the illegitimate child himself/herself or the mother (or anyone else) applying for the use of the father’s surname in behalf of the child. But the IRR also uses the expression “public instrument or AUSF” which seems to indicate that “public document” and “AUSF” refer to the same thing.
IRR of RA 9255: the private handwritten instrument must be signed by the father
Anyway, the point I wish to discuss here is that of the private handwritten instrument executed by the father in admitting his paternity. The IRR requires that the private handwritten instrument must be in the handwriting of the father and signed by him. Further, two of the following documents must be submitted:
For private handwritten instruments, other documents are required to be submitted to support the claim made. In particular, submission of any two of the following documents is required:Please take note again that the IRR of RA 9255 says that the private handwritten instrument must be signed by the father.
1. Employment records
2. SSS/ GSIS records
4. Certification of membership in any organization
5. Statement of Assets and Liabilities
6. Income Tax Return (ITR)
2009 Supreme Court ruling: Private handwritten instrument need not be signed by the father if ...
In the case of “Jenie San Juan Dela Cruz and minor Christian Dela Cruz “Aquino,” represented by Jenie San Juan Dela Cruz, Petitioners, versus Ronald Paul S. Gracia, in his capacity as City Civil Registrar of Antipolo City” (G.R. No. 177728, promulgated on July 31, 2009), the Supreme Court ruled that contrary to the IRR of RA 9255, the private handwritten instrument need not be signed by the father.
The facts of the case
Jenie San Juan Dela Cruz (Jenie for brevity) applied with the City Civil Registrar of Antipolo City for registration of her son Christian using the surname of the biological father Dominique. She submitted the following:
 Christian’s Certificate of Live BirthBoth affidavits attested among other things that during the lifetime of Dominique, he had continuously acknowledged his yet unborn child, and that his paternity had never been questioned.
 Affidavit to Use the Surname of the Father (AUSF) which she had executed and signed
 Affidavit of Acknowledgment executed by Dominique’s father Domingo Butch Aquino
 “AUTOBIOGRAPHY” which Dominique, during his lifetime, wrote in his own handwriting (Note: this document was not signed however by Dominique)
City Civil Registrar of Antipolo City denies Jenie’s petition because the Autobiography was not signed
The City Civil Registrar of Antipolo City however denied Jenie’s petition on the ground Christian was born out of wedlock and the father unfortunately died prior to his birth and has no more capacity to acknowledge his paternity either through the “Affidavit of Acknowledgment or Admission of Paternity” in the birth certificate or the “Authority to Use the Surname of the Father” (AUSF).
Regional Trial Court of Antipolo City dismisses Jenie’s petition
Jenie then filed a complaint for injunction/registration of name against the City Civil Registry before the Regional Trial Court of Antipolo City. Jenie claimed that the Autobiography executed by Dominique constitutes an admission of paternity in a “private handwritten instrument” within the contemplation of Article 176 of the Family Code as amended by RA 9255. During the ex-parte hearings, Jenie and Dominique’s brother testified.
The Antipolo City RTC however dismissed the complaint stating that under the IRR of RA 9255 that the private handwritten instrument must be signed by the father. The trial court held that even if Dominique was the author of the handwritten Autobiography, it did not contain any express recognition of paternity.
Supreme Court rules in favor of Jenie and her son
The Supreme Court ruled in favor of Jenie and Christian. The Court ruled that special circumstances existed to hold that Dominique’s Autobiography, though unsigned by him, substantially satisfies the requirement of the law.
The Court adopted the following rules respecting the requirement of affixing the signature of the acknowledging parent in any private 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; andThe Supreme Court justified its ruling in this way:
2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it is sufficient that the claim of filiation is shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.
Our laws instruct that the welfare of the child shall be the “paramount consideration” in resolving questions affecting him. Article 3(1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is similarly emphatic:The Supreme Court thus ordered the City Civil Registry of Antipolo City to enter the surname of the late Christian Dominique Sto. Tomas Aquino as the surname of Christian in his Certificate of Live Birth and record it in the Register of Births.
Article 3, 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.
It is thus “the policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children. Too, “the State as parens patriae affords special protection to children from abuse, exploitation and other conditions prejudicial to their development.”
In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to petitioner minor child’s best interests to allow him to bear the surname of the now deceased Dominique and enter it in his birth certificate.