CASE BrieF NO. 2017-0607
CASE: In the Matter of Petition for Cancellation of Certificates of Live Birth of Yuhares Jan Barcelote Tinitigan and Avee Kynna Noelle Barcelite Tinitigan (G.R. No. 222095 August 7, 2017)
PONENCIA: Carpio, J.:
FACTS:In 2008, Jonna Barcelote bore a child out of wedlock with a married man named Ricky Tinitigan (Tinitigan). She was not able to register the birth of their child, whom she named Yohan Grace Barcelote, because she did not give birth in a hospital. In 2011, she bore another child with Tinitigan, whom she named as Joshua Miguel Barcelote. Again, she did not register his birth to avoid humiliation, ridicule, and possible criminal charges. Thereafter, she lost contact with Tinitigan.
When the children’s certificate of live birth are needed for school admission, Barcelote finally decided to register the births of both children. She went to the Local Civil Registrar to register their birth. LCR approved the late registration of the births of Yohan Grace Barcelote and Joshua Miguel Barcelote.
However, upon submission of the copies of the late registration of the births to the NSO, Barcelote was informed that there were two certificates of live birth with the same name of the mother and the years of birth of the children in their office. It appears that Tinitigan had earlier registered their two children with “Tinitigan” as the children’s surname.
Thus, Barcelote filed a petition with the RTC for the cancellation of the subject birth certificates registered by Tinitigan without her knowledge and participation.
ISSUES:
a) Whether the children is under compulsion to use the surname of Tinitigan, since Republic Act No. (RA) 9255, amending Article 176 of the Family Code, allows illegitimate children to use the surname of their father if the latter had expressly recognized them through the record of birth appearing in the civil register.
b) Whether the registrations of the children’s births, caused by Tinitigan under Act No. 3753 require the consent of Barcelote.
c) Whether the certificates registered by Tinitigan are valid.
RULING:
a) NO.
Article 176 of the Family Code, as amended by RA 9255, provides:
“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 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. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.” (Emphasis supplied)
The use of the word ‘may’ in Article 176 of the Family Code, as amended by RA 9255, 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.”
The law is clear that illegitimate children shall use the surname and shall be under the parental authority of their mother. The use of the word “shall” underscores its mandatory character. The discretion on the part of the illegitimate child to use the surname of the father is conditional upon proof of compliance with RA 9255.
b) The registration caused by Tinitigan is not valid.
Act No. 3753, otherwise known as the Civil Registry Law, states:
“Section 5. Registration and Certification of Birth. -xxx
In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only the mother if the father refuses.
In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified.
Xxx”
Thus, it is mandatory that the mother of an illegitimate child signs the birth certificate of her child, irrespective of whether the father recognizes the child as his or not. The only legally known parent of an illegitimate child, by the fact of illegitimacy, is the mother of the child who conclusively carries the blood of the mother. Thus, this provision ensures that individuals are not falsely named as parents.
The mother must sign and agree to the information entered in the birth certificate because she has the parental authority and custody of the illegitimate child.
Since it appears on the face of the subject birth certificates that the mother did not sign the documents, the local civil registrar had no authority to register the subject birth certificates. Under the IRR of Act No. 3753, the civil registrar shall see to it that the Certificate of Live Birth presented for registration is properly and completely filled up, and the entries are correct. In case the entries are found incomplete or incorrect, the civil registrar shall require the person concerned to fill up the document completely or to correct the entries, as the case may be.
Clearly, the subject birth certificates were not executed consistent with the provisions of the law respecting the registration of birth of illegitimate children. Aside from the fact that the entry in the subject birth certificates as to the surname of the children is incorrect since it should have been that of the mother, the subject birth certificates are also incomplete as they lacked the signature of the mother.
c) The birth certificates registered by Tinitigan are void.
Acts executed against the provisions of mandatory or prohibitory laws shall be void. Accordingly, the Court declare the subject birth certificates void and order their cancellation for being registered against the mandatory provisions of the Family Code requiring the use of the mother’s surname for her illegitimate children and Act No. 3753 requiring the signature of the mother in her children’s birth certificates.
THINGS DECIDED:
a) Illegitimate children shall use the surname and shall be under the parental authority of their mother. However, 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.
b) It is mandatory that the mother of an illegitimate child signs the birth certificate of her child, irrespective of whether the father recognizes the child as his or not. Without the signature of the mother, the registration by the father shall be void.
c) Under Act No. 3753, the local civil registry has no authority to register birth certificates if the mother of the child did not sign the same.
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