SECOND DIVISION
G.R. No. 222095, August 07, 2017
IN THE MATTER OF PETITION FOR CANCELLATION OF CERTIFICATES OF LIVE BIRTH OF YUHARES JAN BARCELOTE TINITIGAN AND AVEE KYNNA NOELLE BARCELOTE TINITIGAN
JONNA KARLA BAGUIO BARCELOTE, Petitioner, v. REPUBLIC OF THE PHILIPPINES, RICKY O. TINITIGAN, AND LOCAL CIVIL REGISTRAR, DAVAO CITY, Respondents.
D E C I S I O N
CARPIO, J.:
The Case
This petition for review1 assails the 5 March 2015 Decision2 and the 3 December 2015 Resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 03223-MIN reversing the 28 February 2013 Decision4 of the Regional Trial Court of Davao City, Branch 15 (RTC) in SPC. PROC. No. 12,007-12.
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.
- 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.- Birth Certificate with Registry No. 2011-28329:
a. Name: Yuhares Jan Barcelote Tinitigan;
b. Date of Birth: August 14, 2011;6
c. Place of Birth: EUP Family Care Clinic, Holy Cross Agdao Davao City;
d. Informant: Ricky O. Tinitigan.
WHEREFORE, premises considered, the petition is hereby GRANTED. Accordingly, the registration of the Certificate of Live Birth of Yuhares Jan Barcelote Tinitigan and Avee Kynna Noelle Barcelote Tinitigan, respectively intended for Joshua Miguel Barcelote and Yohan Grace Barcelote, by their putative father Ricky Tinitigan at the Local Civil Registrar of Davao City without the con[s]ent or knowledge of their mother, herein petitioner, Jonna Karla Baguio Barcelote, is hereby ordered cancelled.The RTC ruled that the subject birth certificates are legally infirm, because they were registered unilaterally by Tinitigan without the knowledge and signature of Barcelote in violation of Section 5, Act No. 3753. The RTC also held that the subject birth certificates contain void and illegal entries, because the children use the surname of Tinitigan, contrary to the mandate of Article 176 of the Family Code stating that illegitimate children shall use the surname of their mother.
The Civil Registrar of the Office of the Local Civil Registry of Davao City is directed/ordered to cause the cancellation of:[i] the birth certificate of Avee Kynna Noelle Barcelote Tinitigan under Registry No. 2008-21709, andSO ORDERED.7
[ii] the certificate of live birth of Yuhares Jan Barcelote Tinitigan under Registry No. 2011-28329.
FOR THESE REASONS, the Decision dated 28 February 201[3] of the Regional Trial Court, Branch 15, Davao City is REVERSED and SET ASIDE. The Amended Petition docketed as Special Proceedings No. 12,007-12 for cancellation of certificates of live birth of her children, registered as Yuhares Jan Barcelote Tinitigan and Avee Kynna Noelle Barcelote Tinitigan in the records of the Local Civil Registrar of Davao City is DISMISSED for lack of merit.In a Resolution dated 3 December 2015, the CA denied the motion for reconsideration.9
SO ORDERED.8
I.
The CA erred in not cancelling the certificates of live birth for YUHARES JAN BARCELOTE TINITIGAN and AVEE KYNNA BARCELOTE TINITIGAN.
A. Under the Family Code, illegitimate children shall use the surname and shall be under the parental authority of their mother. Being the mother with parental authority, [Barcelote]'s choice of names for her children upon birth should prevail.
B. The CA gravely erred and abused its discretion when it ruled that the RTC did not have basis for its ruling that the certificates of birth registered by [Tinitigan] are not reflective of the true and correct personal circumstances of the [children].
C. The CA misinterpreted the provisions of Act No. 3753, otherwise known as the Law on Registry of Civil Status. It is clear under this law that in case of an illegitimate child, the birth certificate must be signed and sworn to by the mother. Since the certificates of live birth registered by [Tinitigan] were not signed by [Barcelote], the same are void.
D. The cancellation of the certificates of live birth, registered by a father who is married to another and who abandoned his illegitimate children, is for the interest and welfare of [the children.]II.
In the alternative, the CA was incorrect in dismissing the petition for cancellation on the procedural ground that [Barcelote] could have filed a petition for correction of entries under Rule 108 of the Rules of Court. In this case, the petition for cancellation was filed under Rule 108 of the Rules of Court, which governs both "Petition for Cancellation or Correction of Entries in the Civil Registry". Under this rule, even substantial errors in a civil register may be corrected and the true facts established, provided the party aggrieved by the error avail of the appropriate adversary proceeding, which [Barcelote] did. Instead of dismissing the petition outright, considering that the jurisdictional requirements for correction [have] also been complied with, at the very least, the CA should have treated the petition for cancellation as one for correction and ordered the necessary corrections, especially as to the names of [the children].10
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 legitirae of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force. (Emphasis supplied)This has been implemented in the National Statistics Office Administrative Order No. 1-93 or the Implementing Rules and Regulations of Act No. 3753 and Other Laws on Civil Registration (IRR of Act No. 3753),12 to wit:
RULE 23. Birth Registration of Illegitimate children. — (1) Children conceived or born during the marriage of the parents are legitimate. Children conceived and born outside a valid marriage unless otherwise provided in the Family Code are illegitimate.Upon the effectivity of RA 9255,13 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:
(2) An illegitimate child born before 3 August 1988 and acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, the illegitimate child shall carry the surname of the acknowledging parent. If no parent acknowledged the child, he shall carry the surname of the mother.
(3) The name/s of the acknowledging parent/s, shall be indicated in the Certificate of Live Birth.
(4) An illegitimate child born on or after 3 August 1988 shall bear the surname of the mother. (Emphasis supplied)
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,14 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."15 Thus, the Revised Implementing Rules and Regulations (IRR) of RA 9255, which apply to all illegitimate children born during the effectivity of RA 9255, state:
Rule 8. Effects of RecognitionThe 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.
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 [Affidavit to Use the Surname of the Father] (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.
Section 5. Registration and Certification of Birth. - The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from the documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician, or midwife in attendance at the birth or by either parent of the newly born child.In Calimag v. Heirs of Macapaz,17 we held that "under Section 5 of Act No. 3753, the declaration of either parent of the [newborn] legitimate child shall be sufficient for the registration of his birth in the civil register, and only in the registration of birth of an illegitimate child does the law require that the birth certificate be signed and sworn to jointly by the parents of the infant, or only by the mother if the father refuses to acknowledge the child."18
In such declaration, the persons above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship, and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; (f) and such other data may be required in the regulation to be issued.
In the case of an exposed child, the person who found the same shall report to the local civil registrar the place, date and hour of finding and other attendant circumstances.
In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only the mother if the father refuses.
In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified.
Any fetus having human features which dies after twenty four hours of existence completely disengaged from the maternal womb shall be entered in the proper registers as having been born and having died. (Emphasis supplied)
Endnotes:
1Rollo, pp. 10-32. Under Rule 45 of the 1997 Rules of Civil Procedure.
2 Id. at 36-53. Penned by Associate Justice Edgardo A. Camello, with Associate Justices Henri Jean Paul B. Inting and Pablito A. Perez concurring.
3 Id. at 54-55.
4 Id. at 56-59. Penned by Judge Ridgway M. Tanjili.
5 Id. at 69-72.
6 Omitted in the Amended Petition but stated in the Original Petition dated 23 May 2012.
7Rollo, p. 59.
8 Id. at 52.
9 Id. at 54-55.
10 Id. at 16-17.
11 Took effect on 3 August 1988.
12 Dated 18 December 1992.
13 Approved on 24 February 2004.
14 727 Phil. 448 (2014).
15 Id. at 455.
16 Took effect on 27 February 1931.
17 G.R. No. 191936, 1 June 2016, 791 SCRA 620. Emphasis supplied, italics in the original.
18 Id. at 634.
19 Civil Code, Art. 220 provides: "In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or facts leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, the community of property during marriage, the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression."
20Bayan v. Executive Secretary Zamora, 396 Phil. 623 (2000), citing Manila Railroad Co. v. Insular Collector of Customs, 52 Phil. 950 (1929).
21 See Dissenting Opinion of Justice Carpio in Tecson v. Commission on Elections, 468 Phil. 421, 624 (2004).
22Ara v. Pizarro, G.R. No. 187273, 15 February 2017.
23 483 Phil. 483 (2004).
24Santos, Sr. v. Court of Appeals, 312 Phil. 482 (1995).
25 Id., citing Reyes v. Alvarez, 8 Phil. 732; 2 Manresa 21, cited in I A. TOLENTINO, CIVIL CODE OF THE PHILIPPINES, COMMENTARIES AND JURISPRUDENCE 604 (1990 ed.).
26 IRR of Act No. 3753, Rule 9 (1).
27 IRR of Act No. 3753, Rule 9 (2).
28 Civil Code of the Philippines, Article 5 provides: "Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity."
29 389 Phil. 34 (2000).
30 §1 of Article 31 of the Convention on the Rights of the Child.