Case Digest: Article 175-176 of Family Code (Leonardo et al. vs. CA et al.)

ANN BRIGITT LEONARDO as represented by her parents GLORIA LEONARDO and EDDIE FERNANDEZ, petitioners,

vs.

COURT OF APPEALS, HON. TOMAS AFRICA, et al., respondents.

G. R. No. 125329 September 10, 2003

CARPIO-MORALES, J.:

Facts: Ann Brigitt Leonardo is an illegitimate child of common-law-spouses Eddie B. Fernandez and Gloria C. Leonardo. The petitioner’s parents wanted her to carry the surname of her father; the latter executed an affidavit and was submitted to the Local Civil Registrar asking for the change of her surname.

The Local Civil Registrar of Manila denied the request of petitioner’s parents on the ground that petitioner, being illegitimate, should carry her mother’s surname as provided under Article 176 of the Family Code.

Petitioner’s parents appealed the denial of their request for change of petitioners surname to the Civil Registrar General but was also denied the appeal on the ground that neither the Office of the Civil Registrar General nor any of the Civil Registry Offices in the country is given the power or discretion to effect an administrative change of entry in the civil register.

Petitioner's parents filed a petition for review upon the Court of Appeals. The CA declared that an illegitimate child born after the effectivity of the Family Code can use the surname of the father but the power to effect the change lies in the Court and not with Local and Civil Registrar.

ISSUE: Whether or not an illegitimate child born after the effectivity of the Family Code can use the surname of the father

HELD: No. The illegitimate child born after the effectivity of Family Code cannot use the surname of the father. Article 176 of the Family Code provides that 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. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. The rule applies even if petitioner‘s father admits paternity. In the case at bar, since Brigitt was born an illegitimate child after the Family Code took effect, she has no right to use her father’s surname.