My former boyfriend and I have a 5-year-old daughter.

He left me and my
daughter when she was just a month old. I did not bother to run after him because I
was determined to raise our daughter, with or without his help.

Recently, he messaged me through social media and told me that he wanted to

acknowledge our daughter. I just want to know whether it is necessary for my
daughter to use his surname especially in her birth certificate once she is
acknowledged by her father. She has been using my surname since birth and, quite
frankly, I want it to remain that way. Please advise me on this matter.
Pennie

Dear Pennie,
As a rule, illegitimate children shall use the surname of their mother. But, as an
exception, illegitimate children are given the option to use the surname of their
father if the latter recognizes them in the manner laid down by law.

This is in line with the provisions of Republic Act 9255, which amended Article
176 of the Family Code of the Philippines. As stated therein:

“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 the 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 and underlining
supplied)

Applying the foregoing in the situation that you have shared, we submit that it is
not necessary for your daughter to use the surname of her father even if the latter
acknowledges their filiation. As can be gleaned from the provisions of RA 9255,
the use of the term “may” manifestly denotes that what is given to illegitimate
children is a mere choice or opportunity to use their father’s surname, should they
desire to do so after the latter has recognized them in accordance with RA 9255.
To be clear, they are not in any way mandated by our law to use their father’s
surname.
In addition, it will be helpful to know the guidelines laid down under the
Implementing Rules and Regulations of R. A. No. 9255, particularly:

“Rule 2. Definition of Terms

xxx

2.3 Affidavit to Use the Surname of the Father (AUSF) is an instrument executed
in order to use the surname of the father. The AUSF is a registrable document.
xxx

Rule 8. Effects of Recognition

8.1 As a rule, an illegitimate child not acknowledged by the father shall use the
surname of the mother.

8.2 Illegitimate child acknowledged by the father shall use the surname of the
mother if no AUSF is executed.

8.3 An illegitimate child aged 0-6 years old acknowledged by the father shall use
the surname of the father, if the mother or the guardian, in the absence of the
mother, executes the AUSF.

8.4 An illegitimate child aged 7 to 17 years old acknowledged by the father shall
use the surname of the father if the child executes an AUSF fully aware of its
consequence as attested by the mother or guardian.

8.5 Upon reaching the age of majority, an illegitimate child acknowledged by the
father shall use the surname of his father provided that he executes an AUSF
without need of any attestation.”

Applying the foregoing and for your daughter to use the surname of her father, it
appears that you need to execute an Affidavit to Use the Surname of the Father
(AUSF) before the surname of your daughter’s father can be annotated in her birth
certificate given that she is only five years old at the moment. Once she reaches the
age of seven, and until she reaches 17 years of age, it will be necessary for your
daughter to execute said AUSF in order for the registration of said annotation,
provided that you attest to the fact that your daughter is aware of the consequences
of such use of surname. If the AUSF was not executed during the two given time
frames above, your daughter, upon reaching the age of majority, may opt to use her
father’s surname in her birth certificate by executing the said AUSF without need
of your attestation.