In re: Yuhares Jan Barcelote Tinitigan

DOCTRINE: In Grande v. Antonio, we held that "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. 

FACTS: Jonna Karla Baguio Barcelote bore children out of wedlock with a married man named Ricky O. Tinitigan in Santa Cruz, Davao del Sur. She did not register the birth of her children to avoid humiliation, ridicule, and possible criminal charges. Thereafter, she lost contact with Tinitigan and she returned to Davao City.

When her first child needed a certificate of live birth for school admission, Barcelote finally decided to register the births of both children. The Local Civil Registrar of Santa Cruz approved the late registration of the births of Yohan Grace Barcelote and Joshua Miguel Barcelote after submitting proof that the NSO has no record of both births on file.

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. The subject birth certificates registered by the Local Civil Registrar of Davao City state the following:

1. Birth Certificate with Registry No. 2008-21709:

a. Name: Avee Kyna Noelle Barcelote Tinitigan;

b. Date of Birth: June 4, 2008;

c. Place of Birth: EUP Family Care Clinic, Holy Cross Agdao Davao City;

d. Informant: Ricky O. Tinitigan.

2. Birth Certificate with Registry No. 2011-28329:

a. Name: Yuhares Jan Barcelote Tinitigan;

b. Date of Birth: August 14, 2011

c. Place of Birth: EUP Family Care Clinic, Holy Cross Agdao Davao City;

d. Informant: Ricky O. Tinitigan.

Thus, Barcelote filed a petition with the RTC for the cancellation of the subject birth certificates registered by Tinitigan without her knowledge and participation, and for containing erroneous entries. RTC ruled in favor of Barcelote. CA reversed and set aside the decision of the RTC.

ISSUE: Whether or not the CA erred in not cancelling the certificates of live birth of Barcelote’s children

HELD: We grant the petition. Upon the effectivity of RA 9255, the provision that illegitimate children shall use the surname and shall be under the parental authority of their mother was retained, with an added provision that they may use the surname of their father if their filiation has been expressly recognized by their father. Thus, 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)

In Grande v. Antonio, we held that "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 and its IRR.