The stepfather may adopt the legitimate child of his wife with the first husband
DearPAO,
Goodday!Ihavebeenmarried wasasoldier.Ourmarriagedid notlastlong.Afewmonthsafter DanicaMae,myhusbanddied inanencounterinSulu.Two yearsafter,Ireunitedwithmy ex-boyfriend,Clifford,who isapoliceofficer.Imarried Clifford,andwelivehappily. Wehavetwochildrennow.My problemisthatDanicaMaeis usingthefamilynameofmy firsthusband.
Toavoidthepossibilityofbeing canI fileapetition,onbehalf ofmydaughter,tochangeher familynametothatofClifford? Whatismyremedy?Please adviseme.
Danica
Dear Danica,
The use of a family name is fixed by law. Article 174 of the Family Code of the Philippines provides that legitimate children shall have the right to bear the surnames of the father and the mother in conformity with the provision of the Civil Code on Surnames. Similarly,
Article 364 of the Civil Code provides that “legitimate and legitimated children shall principally use the surname of the father.”
If you file a petition on behalf of your daughter to change her family name to that of your second husband, such petition would likely be denied by the court. Unlike in the case of illegitimate children where the court, in some instances, allowed the use of the family name of their stepfather, such privilege may not be enjoyed by a legitimate child, as in the case of your daughter. The reason is to avoid confusion with grave legal consequences as to the child’s parentage because of her new surname. In Republic vs Court of Appeals (GR 88202, Dec. 4, 1998), penned by Associate Justice Leonardo Quisumbing, the Supreme Court, quoting Padilla vs Republic ( 113 SCRA 789), explained the following:
“To allow said minors to adopt the surname of their mother’s second husband, who is not their father, could result in confusion in their paternity. It could also create the suspicion that said minors, who were borne during the coverture of their mother with her first husband, were in fact sired by Edward Padilla, thus bringing their legitimate status into discredit.”
A better option is for your husband Clifford to adopt your daughter, Danica Mae. Under the provisions of Republic Act (RA) 8552, or the” Domestic Adoption Act of 1998,” as amended by RA 9523, the legitimate son/ daughter of one spouse by the other spouse may be adopted. In this case, the adopter is the spouse of the parent of the legitimate son/ daughter. Hence, your husband Clifford may adopt your legitimate daughter Danica Mae.
Under Article 189 of the Family Code of the Philippines, the following are the effects of adoption:
“( 1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopter/s and both shall acquire the reciprocal rights and obligations arising from relationship of parent and child, including the right of the adopted to use the surname of adopter/s;
“(2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if adopter is the spouse of the parent by nature of the adopted, parental authority shall be exercised jointly by both spouses; and
“(3) The adopted shall remain an intestate heir of his parents and other blood relatives.” (Emphases supplied)
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.