Rights of Illegitimate Children

FC Art. 176. 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
one-half of the legitimate child. (As amended by RA 9255 in 2004)
IN CC: recognition of the father was required before illegitimate child can use his
surname
IN FC: regardless of recognition, illegitimate child shall use mothers surname.
RA 9255: reverts to the CC rule which allows illegitimate children to use fathers
surname subject to the fathers recognition.
A guardian may be appointed by the court if there are valid reasons for not placing the
child under the mothers parental authority (e.g., H living with the mother maltreats
the child; Art 329 CC even if left out by FC can still be applicable minor illegits mother
marries a man other than the father)
RA 9255 was authored by Sen. Ramon Revilla who is known for having at least 85
children of legal age.
(Read: the number does not include minor children.)
The problem with this law is that it takes out of the picture the role of women.

C. Legitimated children
FC Art. 177. Children conceived and born outside of wedlock of parents who, at the time of
conception of the former, were not disqualified by any impediment to marry each other, or
were so disqualified only because either or both of them were below eighteen (18) years of
age, may be legitimated. (as amended by RA 9858)
Example: daughter was conceived when the father was married to another. When she
was born, the wife died. Thereafter, her parents got married. The child cannot be
legitimated; she can only be adopted.
LEGITIMATION - remedy by means of which illegitimate children are considered
legitimate, it being supposed that they were born in lawful wedlock.
LEGITIMATED CHILDREN - illegitimate children who are considered legitimate because
of the subsequent marriage of their parents
In legitimation, the law makes legal what exists by nature, while in adoption, the law
creates by fiction a relation that did not in fact exist by nature.
Legitimation vs. Adoption
o Adoption law merely creates by fiction a relation which did not in fact exist
o Legitimation law merely makes legal what exists by nature
Letitimation takes place without judicial approval
Children born in a void marriage under Art. 36 are legitimate

REQUISITES FOR LEGITIMATION
1. child was conceived AND born out of wedlock
2. the parents were not disqualified by any impediment to marry each other at the time of
conception, OR were so disqualified only because either or both of them were below eighteen
(18) years of age


CHILDREN WHO CANNOT BE LEGITIMATED
1. adulterous
2. incestuous
3. of marriages against public policy
4. of bigamous marriages - but can be ADOPTED to elevate their status

Why cant children of adulterous relationships be legitimated?
1. rational of legitimation would be destroyed
2. unfair to legitimate children in terms of successional rights
3. problem of public scandal
4. will destroy the sanctity of marriage
5. very scandalous, especially if the parents marry years after the birth of the child
6. it is tantamount to tolerating what would have been a wrong act, it would seem to be more
beneficial to the erring spouse

FC Art. 178. Legitimation shall take place by subsequent valid marriage between parents. The
annulment of a voidable marriage shall not affect the legitimation.
CC: legitimation takes place through subsequent marriage (Art 270) provided that the
parents have acknowledge the child before or after the marriage
o FC: Acknowledgement no longer required but filiation must be established if
the parties who contracted the marriage do not accept the child as theirs.
FC: legitimation takes place through subsequent marriage as long as the requisites of
Art 177 are met. The length of time between childs birth and the parents marriage
does not matter.
o The status of legitimated children in void ab initio marriages is likewise affected
because no marriage exists at all.

FC Art. 179. Legitimated children shall enjoy the same rights as legitimate children.
In addition to 3S in Art 174, the child may inherit from her fathers brother as a
legitimate niece.

FC Art. 180. The effects of legitimation shall retroact to the time of the childs birth.
To protect not only the child but also the childs descendants because it can happen
that at the time of the marriage of the childs parents, the child already had married
and died is survived by children who should benefit from the legitimation of their
deceased parent.

FC Art. 181. The legitimation of children who died before the celebration of the marriage
shall benefit their descendants.

FC Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights,
within five years from the time their cause of action accrues.
Testamentary and intestate heirs
Those who have moral interest








Custody

a. Determining the best interest of the child
i. Gender and tender years presumption

FC Art. 213. In case of separation of parents, parental authority shall be exercised by the
parent designated by the Court. The Court shall take into account all relevant considerations,
especially the choice of the child over seven years of age, unless the parent is unfit.
No child under seven years of age shall be separated from the mother unless the court finds
compelling reasons to order otherwise.