G.R. No. 206248 ; February 18, 2014
GRACE M. GRANDE, Petitioner, vs. PATRICIO T. ANTONIO, Respondent.

FACTS

Petitioner Grace Grande and respondent Patricio Antonio lived together as husband and wife, although Antonio was already married to another. Two sons, Andre Lewis (born February 8, 1998) and Jerard Patrick (born October 13, 1999), were born out of this relationship. The children were not expressly recognized by Antonio in their Records of Birth. The relationship soured, and Grande left for the United States with the children in May 2007. Antonio filed a Petition for Judicial Approval of Recognition with Prayer to take Parental Authority, Parental Physical Custody, Correction/Change of Surname of Minors and for the Issuance of Writ of Preliminary Injunction before the Regional Trial Court (RTC), appending a notarized Deed of Voluntary Recognition of Paternity. The RTC ruled in favor of Antonio, granting his recognition, ordering the change of the minors’ surnames from Grande to Antonio, granting him joint parental authority and a primary right to physical custody (with a specific weekly schedule), and ordering shared support. The Court of Appeals (CA) modified the RTC decision, awarding Grande full or sole custody of the children, granting Antonio visitorial rights, maintaining the order for shared support, but upholding the directive to change the minors’ surname to Antonio. Grande filed a partial motion for reconsideration, specifically assailing the order to change the surname, which was denied, prompting the present petition.

ISSUE

Whether the father of illegitimate children, upon recognition of their filiation, has the right to compel the use of his surname by said children without the mother’s consent.

RULING

No. The Supreme Court granted the petition. The general rule under Article 176 of the Family Code, as amended by Republic Act No. 9255 , is that an illegitimate child shall use the surname of the mother. The exception is that 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 by an admission in a public document or private handwritten instrument. The Court held that the use of the word “may” in the provision indicates that the use of the father’s surname is permissive and not mandatory. The law does not grant the father the right to compel the use of his surname; it merely grants the illegitimate child the privilege to choose to use it. In this case, since the children were already using their mother’s surname “Grande” and there was no showing that such use caused any prejudice to them, the Court found no compelling reason to order a change. Consequently, the Court reversed the CA’s directive to change the minors’ surname to “Antonio.” The other modifications made by the CA, including the award of sole custody to the mother, visitorial rights for the father, and the order for shared support, were affirmed.