Changing a Child’s Surname After Marriage

Written By Harold Respicio

Below is a comprehensive discussion of the key considerations, legal bases, and procedures for changing a child’s surname in the Philippines after marriage. It covers situations where the parents marry each other after the child’s birth (legitimation) as well as scenarios where the mother marries someone else (stepfather adoption), among other considerations. Please note that this is for general informational purposes and not a substitute for professional legal advice.

1. General Rules on a Child’s Surname in the Philippines

  1. Legitimate Children

    • Under the Family Code of the Philippines (Executive Order No. 209, as amended), legitimate children (i.e., those conceived or born during a valid marriage of the parents) customarily bear the father’s surname.
    • If the child’s parents were already married at the time of the child’s birth, the child automatically takes the father’s surname.

  2. Illegitimate Children

    • An illegitimate child (i.e., a child born to parents who are not married to each other at the time of birth) customarily uses the mother’s surname, unless certain legal actions are taken to allow the use of the father’s surname.
    • Republic Act No. 9255 (An Act Allowing Illegitimate Children to Use the Surname of Their Father) provides the procedure for an illegitimate child to use the father’s surname, provided paternity has been recognized or acknowledged in accordance with law.

2. Changing the Child’s Surname When the Biological Parents Marry Each Other After the Child’s Birth (Legitimation)

A. Concept of Legitimation

  • Legitimation is a legal process under the Family Code (Articles 177-182) that “legitimizes” a child who was illegitimate at the time of birth (because the parents were not yet married) once the parents subsequently contract a valid marriage.
  • Through legitimation, the legal status of the child changes from illegitimate to legitimate as of the time of the child’s birth (as if the child were born legitimately).
  • Once legitimated, the child is entitled to the same rights as if they were born in wedlock, including inheritance rights, legal custody, and using the father’s surname.

B. Requirements for Legitimation

  1. The child must have been conceived and born out of wedlock to parents who, at the time of conception, had no legal impediment to marry each other (e.g., neither was married to another person).
  2. Subsequent valid marriage of the biological parents.
  3. No legal impediment existed at the time of the child’s conception that would permanently bar their marriage (e.g., consanguinity issues, existing valid marriage to another person).

C. Procedure for Legitimation

  1. Register the marriage certificate: Ensure the parents’ marriage is properly registered with the Local Civil Registrar (LCR).
  2. File the documents for legitimation: The child’s parents or authorized representative must file the Application for Legitimation, along with necessary supporting documents (e.g., certified copies of the child’s birth certificate, marriage certificate of the parents, proof of no legal impediment).
  3. Annotation on the child’s birth certificate: Upon approval, the Local Civil Registrar will annotate the birth certificate to reflect that the child has been legitimated and, correspondingly, the child’s surname will change to the father’s surname if it was not already indicated.

D. Effect of Legitimation on the Child’s Surname

  • After legitimation is approved and annotated, the child legally bears the father’s surname going forward, and the records should reflect the child’s status as legitimate.

3. Changing the Child’s Surname When the Mother Marries Someone Other Than the Child’s Father

If the mother marries a man who is not the child’s biological father, simply contracting marriage does not automatically change the child’s surname to that of the new husband. There are two main legal avenues if the new husband wishes to share his surname with the child:

A. Adoption (Under R.A. 8552, Domestic Adoption Act)

  • Adoption is the legal process whereby a person assumes the rights and responsibilities of parenthood over a child who is not biologically his/hers.
  • Once the adoption decree is granted, the child is considered the legitimate child of the adopter for all intents and purposes, including the use of surname.

Key Points of Adoption:

  1. Petition for Adoption: The stepfather (the mother’s husband who wishes to adopt) must file a petition for adoption in the proper court.
  2. Consent Requirements:
    • If the child is 10 years of age or older, the child’s consent is required.
    • The biological mother’s consent is also required.
    • If the biological father has recognized or acknowledged the child, his consent or notice is typically needed, subject to specific legal contexts.
  3. Supervised Trial Custody and Home Study: Usually, the family undergoes a period of supervised trial custody (which may be dispensed with if the child has been living with the adopting parent for an extended period). A home study by a social worker is also involved.
  4. Decree of Adoption: Once the court issues the decree of adoption, the child’s birth certificate is amended so that the child’s new legal surname reflects that of the adoptive father.

B. Judicial Change of Name (If Adoption is Not Pursued)

If the stepfather does not adopt the child, but there is some compelling reason to request a change of the child’s surname (e.g., protection, best interests of the child, etc.), a judicial petition for change of name under Rule 103 of the Rules of Court may be filed. However, courts generally require strong, valid grounds to permit a change of surname without adoption or legitimation. Simply wanting the child to match the mother’s new marital surname is rarely sufficient without the adoptive process or the biological father’s consent.

4. Changing the Child’s Surname if the Biological Father Recognizes the Child (R.A. 9255)

A. Using the Father’s Surname Under R.A. 9255

  • Republic Act No. 9255 (the “Revilla Law”) allows illegitimate children to use the surname of their biological father if the father recognizes paternity through the appropriate public documents (e.g., Affidavit of Acknowledgment, Affidavit of Admission of Paternity).
  • The process typically involves filing an Affidavit to Use the Surname of the Father (AUSF) with the Local Civil Registrar, along with proof of paternity.
  • This is only relevant if the father named on the birth certificate was not previously indicated or if the child initially bore the mother’s surname.

B. Marriage of the Father to the Mother

  • If the parents eventually marry, the child may also be legitimated (discussed above), which automatically changes the child’s surname to the father’s.
  • If the child was already using the father’s surname under R.A. 9255, subsequent legitimation will reinforce that status.

5. Practical Considerations and Steps

  1. Identify the Legal Relationship:

    • Are the child’s biological parents the ones getting married, and there was no legal impediment at the child’s conception? Then legitimation by subsequent marriage applies.
    • Is the mother marrying a man who is not the child’s father? Adoption is typically required to effect a surname change to the stepfather’s name.

  2. Gather Necessary Documents:

    • Child’s original birth certificate.
    • Parents’ (or mother’s and new spouse’s) marriage certificate.
    • Any acknowledgment of paternity documents if needed (for R.A. 9255).
    • If filing for adoption, all documents required under R.A. 8552 (home study, petition for adoption, birth certificate, marriage certificate of the adopters, clearances, proofs of financial capability, etc.).

  3. File the Correct Petition or Application:

    • Legitimation application with the Local Civil Registrar if parents marry each other.
    • Petition for Adoption in the Regional Trial Court (Family Court) if a stepfather is adopting.
    • AUSF or correction with the Local Civil Registrar if it is merely a matter of acknowledging paternity and using the father’s surname (for illegitimate children).
    • Judicial petition for change of name (Rule 103) if there is a compelling reason to change the surname without adoption.

  4. Expect a Waiting Period:

    • Administrative processes (legitimation, AUSF) are typically more straightforward and handled by the Local Civil Registrar.
    • Adoption proceedings require court involvement and can take several months to more than a year.
    • Judicial name change petitions also require court hearings and publication notices, taking time and expense.

  5. Update All Records After the Change:

    • Once the change is approved, secure an amended or new birth certificate from the Philippine Statistics Authority (PSA).
    • Update school records, passports, and any other government-issued documents to avoid inconsistencies.

6. Common Misconceptions

  1. Simply marrying the child’s mother does not automatically change the child’s surname when the husband is not the child’s biological father. A legal process (adoption) is required.
  2. No new affidavit or local civil registrar process alone can legitimize a child if there was a legal impediment at conception or if the biological parents do not marry each other.
  3. Consent or notice of the biological father often matters in adoption cases if his parental rights have been recognized; due process requires his knowledge (and sometimes consent) before another man can adopt his child.
  4. Legitimation cannot be done if the parents were under a legal impediment to marry at the time of the child’s conception or birth (for instance, if one parent was still lawfully married to another person).

7. Summary and Key Takeaways

  1. If the Biological Parents Get Married (and no legal impediment existed):

    • The child can be legitimated. This is an administrative procedure done at the Local Civil Registrar, allowing the child to use the father’s surname and enjoy all rights of a legitimate child.

  2. If the Mother Marries a Different Man (Stepfather Scenario):

    • A stepfather who wishes to give his surname to his spouse’s child must generally go through the adoption process under R.A. 8552.
    • Merely updating the birth certificate or filing a change of name petition without adoption usually will not suffice.

  3. If the Child’s Biological Father Acknowledges the Child (but parents remain unmarried):

    • The father’s surname can be used upon compliance with R.A. 9255 (filing the AUSF). The child, however, remains illegitimate unless legitimated through subsequent marriage of the same biological parents or adopted under the appropriate law.

  4. If There is a Need for a Judicial Proceeding (Name Change):

    • Courts require compelling reasons and typically follow formal procedures (e.g., publication, hearing) before granting a change of surname not based on legitimation or adoption.

In all cases, those seeking to change a child’s surname in the Philippines should consider consulting a lawyer or a legal aid office to ensure the proper procedure is followed and to verify compliance with existing laws and regulations.

Disclaimer

This discussion provides general information on Philippine law regarding changing a child’s surname after marriage and does not constitute legal advice. Laws and regulations may be interpreted differently depending on unique circumstances, and procedures may be updated. For specific issues or concerns, consult a qualified attorney or the Local Civil Registrar in your area.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

Harold Respicio
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