CIVIL LAW PERSONS & FAMILY RELATIONS
Action to Claim Legitimacy (Art. 173)
Who may claim:
1. Child – exclusive and personal right of child which may be brought anytime during his lifetime, regardless of the proof presented to support his claim
2. Transmitted to heirs of the child within a period of 5 years in case
a. Child dies during minority b. Child dies in a state of insanity
c. Child dies after action has already been instituted Action to Claim Illegitimacy
Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children (Art. 175).
1. If illegitimate filiation is established by a record of birth in the civil register or a final judgment, or an admission of filiation in a public document or a private handwritten instrument signed by the parent concerned, the action for recognition may be brought by the child during his lifetime (Guy, vs. CA, G.R. No. 163707, September 15, 2006).
2. If the action is based upon open and continuous possession of the status of an illegitimate child, or any other means allowed by the rules or special laws, it may be only brought during the lifetime of the alleged parent (Guy vs. CA, ibid).
3. Unlike an action for legitimacy, the right to claim for status is NOT transmissible to the heirs.
“Continuous” does not mean that the concession of status shall continue forever but only that it shall not be of an intermittent character while it is continuous. The possession of such status means that, the father has treated the child as his own, directly and not through others, spontaneously, and without concealment, though without publicity. There must be a showing of permanent intention of the supposed father to consider the child as his own by continuous and clear manifestation of paternal affection and care (Mendoza vs. CA, G.R. No. 86302 September 24, 1991).
The paternal affection and care must not be attributed to pure charity. “Such acts must be of such a nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously” (Jison vs. CA, GR. No. 8454, April 13, 1956).
If the unsigned record of birth can be a proof of filiation of the child, it would be easy for a woman to vest legitimate status to an illegitimate child. Hence, an unsigned record of birth cannot be used as proof of filiation (Reyes v. Court of Appeals, GR. 39537, March 19, 1985).
RIGHTS OF CHILDREN
Legitimate Illegitimate Use of father & mother’s
surname Use of mother‘s surname
Note: However, R.A.
9255 amended Art. 176, FC
Receive support from
ascendants or
descendants of the same line.
Receive support only up to
grandparent and
grandchildren Entitled to the legitime in
succession Legitime is ½ of the
legitime of a legitimate child
Right to inherit ab intestato from legitimate children and relatives of his father and mother
No right to inherit as such
R.A. No. 9255
An Act Allowing Illegitimate Children to use the surname of their Father, amending for the purpose Article 176 of EO No. 209, otherwise known as the "FAMILY CODE OF THE PHILIPPINES" (approved February 24, 2004).
Illegitimate children may use the surname of their father if:
1. Their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or
2. When an admission in a public document or private handwritten instrument is made by the father; Provided, that the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime.
LEGITIMATED CHILDREN Legitimation
It is a remedy by means of which those who in fact were conceived and born outside of wedlock and should therefore be considered illegitimate are by legal fiction considered legitimate. It shall take place only by the subsequent valid marriage between the biological parents.
PERSONS & FAMILY RELATIONS CIVIL LAW
Requisites: (NIM) 1. The child is illegitimate.
2. The parents at the time of the child’s conception are not disqualified by any impediment from marrying each other or were so disqualified only because either or both of them were below eighteen (18) years of age (Art.
177, as amended by R.A. 9858).
3. There is a valid marriage subsequent to the child’s birth (Art. 178).
Note: Children born out of wedlock to parents who were not allowed by law to marry for being minors are now qualified for legitimation. This has been made possible by RA 9858, approved on December 20, 2009 and has amended Article 177 of the Family Code of the Philippines. Before RA 9858, Article 177 stated that only children born out of wedlock to parents who were not disqualified from getting married at the time of conception could be legitimized.Under the present law, legitimation would automatically take place upon marriage of the parents. Moreover, couples who had children when they were below the marrying age would not need to go through the process of having to adopt their own offspring just so their kids could enjoy the rights of legitimate children.
Notes: Laws providing for the process of legitimation are remedial in character intended for the benefit and protection of the innocent offspring and, therefore, may be applied retrospectively (Lund’s Estate, 162 ALR 606) and must be liberally construed (Cardenas vs. Cardenas, 12 Ill. App 2d 497, 63 Alr2rd 1001 as cited in Sta. Maria, p.
659).
Effects of legitimation:
1. Legitimated children shall enjoy the same rights as legitimate children (Art. 179)
Note: Legitimation creates for the legitimated child the total and full extent of the blood-relationship existing within the family to include all descendants, ascendants and collateral relative, unlike in adoption where only a parent-child relationship is created. (Sta. Maria, M., Persons and Family Relations, 2010, p. 661)
2. The effects of legitimation shall retroact to the time of the child’s birth (Art. 180)
3. The legitimation of children who died before the celebration of the marriage shall benefit their ascendants (Art. 181)
4. Legitimation may be impugned only by those who are prejudiced in their rights.
Generally refers to those who would suffer economic or material injury by legitimation such as testamentary or intestate heirs (Sta. Maria, M., Persons and Family
Relations, 2010, p. 663).
Legitimation may be impugned within 5 years from the time their cause of action accrues, that is, from the death of the putative parent.
Legitimation may be impugned on grounds like:
a. The subsequent marriage of the child’s parents is void;
b. The child allegedly legitimated is not natural; or c. The child is not really the child of the alleged parents.
The process of making a child, whether related or not to the adopter, possess in general, rights accorded to a legitimate child (Paras, E. Civil Code of the Philippines Annotated, 2002 ed., p. 685).
Adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts.
Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law (In re: Petition for adoption of Michelle P. Lim, G.R. No. 168992-93 May 21, 2009).
Nature of adoption proceedings
1. Adoption is a juridical act. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity (Lazatin vs. Hon. Judge Campos, G.R. No. L-42955-56 July 30, 1979).
2. Adoption proceedings are IN REM and publication serves as constructive notice to the whole world (Santos vs. Aranzanso, L-23828, February 28, 1966).
DOMESTIC ADOPTION ACT OF 1998 (R.A. No. 8552) Pre–adoption services (Sec. 4-6)
The DSWD shall provide for the following services:
A
DOPTION
CIVIL LAW PERSONS & FAMILY RELATIONS
1. Counseling services for –
a. biological parents [Sec. 4(a)],
Note: No binding commitment for and adoption plan shall be permitted before the birth of his or her child.
A period of 6 months shall be allowed for the biological parent(s) so reconsider any decision to relinquish his/her child for adoption before the decision becomes irrevocable.
b. prospective adoptive parents [Sec. 4 (b)] and c. prospective adoptee [Sec. 4(c)]
2. Exhaust all efforts to locate the unknown biological parents
Note: If efforts fail, child shall be listed as a foundling and shall be judicially declared as abandoned [Sec. 5]
Who may adopt: (LPG-CONE) 1. Filipino citizen [Sec. 7 (a)]:
a. Of legal age
b. In a position to support and care for his/her children in keeping with the means of the family
c. Good moral character
d. In possession of full civil capacity or legal rights e. At least 16 years older than the adoptee, except
when:
i. Adopter is the biological parent of the adoptee ii. Adopter is the spouse of the adoptee’s parent f. Has not been convicted of any crime involving moral
turpitude
g. Emotionally and psychologically capable of caring for children
2. Alien (S-DELL)
a. Same qualifications as a Filipino
b. Country has diplomatic relations with the Philippines.
c. Certified by said office that his government allows the adoptee to enter his country as his adopted child d. Has been living in the Philippines for at least three (3)
continuous years prior to the application for adoption and maintains such residence until the adoption decree is entered,
e. Certified to have legal capacity to adopt by his/her diplomatic or consular office but certification may be waived in the same instances for waiver of residency requirement in (c)
Note: Requirements listed under (c), (d) and (e) may be waived if the alien is:
i.A former Filipino citizen seeks to adopt a relative
within the 4th degree of consanguinity or affinity ii.One who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse
iii.One who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse
If a Filipino adopts an alien, the adopted alien does not acquire Philippine citizenship because such acquisition of citizenship acquires the character of naturalization which is regulated, not by the Civil Code or the Family Code, but by special law (Ching Leng vs. Galang, G.R. No. L-11931, October 27, 1958).
3. Guardian (TC) [Sec. 7(c)]
a. After termination of the guardianship, with respect to the ward, and
b. Clearance of his/her financial accountabilities Rule on adoption by spouses
General rule: The husband and the wife shall JOINTLY adopt.
Exceptions: (LIS)
1. One spouse seeks to adopt the legitimate child of the other spouse
2. One spouse seeks to adopt his/her own illegitimate child with the consent of the other spouse
3. The spouses are legally separated
Other factors to be considered in evaluating prospective parents:
1. Total personality of the applicants 2. Emotional maturity
3. Quality of marital relationship 4. Feeling about children
5. Feeling about childlessness and readiness to adopt 6. Motivation (Sta. Maria, M., Persons and Family
Relations, 2010, p. 681).
Who may be adopted: (Sec. 8) (DARILL)
1. Child whose biological or adoptive parents have died, provided that no proceedings shall be initiated within 6 months from the time of death of said parents
2. Any person below 18 years of age who has been voluntarily committed to the DSWD under P.D. 603 or judicially declared available for adoption
3. Child whose adoption has been previously rescinded 4. Illegitimate child of a qualified adopter to improve the
child’s status
5. Legitimate child of the other spouse
6. A person of legal age, who, prior to the adoption, has been consistently considered by the adopter as his/her
PERSONS & FAMILY RELATIONS CIVIL LAW
own child since minority
Consent in adoption (Sec. 9) (A-BALIS) The written consent of the following is required:
1. The adoptee, if he is 10 years of age or older;
2. Known biological parents or legal guardians or proper government instrumentality which has legal custody of the child;
3. Legitimate/adopted children, 10 years old or over, of the adopter and adoptee;
4. The illegitimate children, 10 years old or over, of the adopter if living with the adopter and the latter's spouse;
5. Spouse of the adopter and adoptee
Note: An alleged capability to support an adoptee through the help of other persons is not enough to support a petition for adoption. According to the SC, adoption is personal between the adopter and adoptee; the adopter should be in a position to support the would-be adopted child in keeping with the means of the family (Landingin v.
Republic, GR No 164948, June 27, 2006).
Sec.9 of R.A. 8552 provides that if the written consent of the biological parents cannot be obtained, the consent of the legal guardian must be sought. To dispense with the requirement of written consent, the abandonment must be shown to have existed at the time of adoption and evinces a settled purpose to forego all parental duties. The written consent of the biological parents is indispensable for the validity of a decree of adoption. The natural right of parent to child requires that consent be obtained before parental rights and duties may be terminated and re-established in adoptive parents. (Landingin vs. Republic,ibid).
Effectivity of decree of adoption (Sec. 13)
A decree of adoption shall be effective as of the date the original petition was filed. This applies also in case petitioner dies before the issuance of the adoption decree, to protect the interest of the adoptee.
In Tamargo vs. CA (209 SCRA 518, G.R. No. 85044 June 3, 1992), where the petition for adoption was granted after the child had shot and killed a girl, the SC did not consider the retroactive effect of the decree of adoption so as to impose a liability upon the adopting parents accruing at the time when they had no actual or physical custody over the adopted child. It held that retroactive effect may be given where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child.
To hold that parental authority had been retroactively lodged in the adopting parents so as to burden them with liability for a tortuous act that they could neither have foreseen nor prevented would be unfair and unconscionable.
Middle name of adopted child
The illegitimate child subsequently adopted by his/her natural father is permitted to use as her middle name the surname of her natural mother for the following reasons:
1. It is necessary to preserve and maintain the child’s filiation with her natural mother because under Art. 189 of the Family Code, she remains to be an intestate heir of the latter. To prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained;
2. There is no law expressly prohibiting the adopted to use the surname of her natural mother as her middle name.
What the law does not prohibit, it allows; and
3. It is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005).
Effects of Adoption: (SAL)
1. Severance of legal ties between the biological parents and the adoptee, which shall be vested in the adopters.
Exception: if the biological parent is the spouse of the adopter (Sec. 16).
2. Adoptee shall be considered as a legitimate child of the adopter(s) for all intents and purposes (Sec. 17).
3. In legal or intestate succession, the adoptee and the adopter(s) shall have reciprocal rights of succession without distinction from legitimate filiation. However, if there is a will, the rules on testamentary succession shall be followed (Sec. 18).
Note: Once an adoption decree is issued, it cannot be attacked collaterally as in their action for partition, but in a direct proceeding frontally addressing the issue (Sayson vs. CA, G.R. Nos. 89224-25 January 23, 1992).
Rescission of adoption (Sec. 19) - by ADOPTEE ONLY Grounds: (ASAR)
1. Attempt on the life of the adoptee 2. Sexual assault or violence
3. Abandonment and failure to comply with parental obligations
4. Repeated physical or verbal maltreatment by the adopter despite having undergone counseling
Note: Adoption shall not be subject to rescission by the adopters. However, the adopters may disinherit the adoptee for causes provided under Art 919 of the Civil
CIVIL LAW PERSONS & FAMILY RELATIONS
Code (Sec. 19).
An adoptee refused to use the surname of the adopter though already adopted. The adopter sought to rescind/revoke the Decree of Adoption (DOA), but the Domestic Adoption Act (R.A. 8552) which removes the right of adopter to challenge the validity of the DOA became effective. SC held that the adopter may disinherit the adoptee, and that the latter has the sole right to challenge the DOA (Lahom v. Sibulo, G.R. No 143989, July 14, 2003).
Disinheritance of adoptee by adopter Grounds: (Art. 919, NCC) (GAMM-CARD)
1. Groundless accusation against the testator of a crime punishable by six (6) years or more imprisonment 2. Found guilty of an attempt against the life of the
testator, his/her spouse, descendants or ascendants 3. Causes the testator to make or changes a testator’s will
through violence, intimidation, fraud or undue influence 4. Maltreatment of the testator by word or deed
5. Conviction of a crime which carries the penalty of civil interdiction
6. Adultery or concubinage with testator’s spouse
7. Refusal without justifiable cause to support the parent or ascendant
8. Leads a dishonorable or disgraceful life.
Effects of rescission: (Sec. 20) (PRAS)
1. Parental authority of adoptee’s biological parents or legal custody of DSWD shall be restored if adoptee is still a minor or incapacitated.
2. Reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished.
3. Amended certificate of birth of the adoptee shall be cancelled and its original shall be restored.
4. Succession rights shall revert to their status prior to the adoption, but vested rights shall be respected.
Being a legitimate child by virtue of adoption, it follows that the child is entitled to all the rights provided by law to a legitimate child. The adopted child remains an intestate heir of his/her biological parents. Hence, she can well assert her hereditary rights from her natural mother in the future (In the matter of adoption of Stephanie Nathy Astorga Garcia, GR No 148311 March 31, 2005).
Simulation of Birth
Is the tampering of the civil registry making it appear in the birth records that a certain child was born to a person who is not his/her biological mother, causing such child to lose his/her true identity and status [R.A.8552 Art. 1 Sec. 3 (J)].
Punished by prision mayor in its medium and a fine not exceeding P50, 000 under Sec. 21 (b) of the same law.
A crime defined and punished by Sec. 21 (b) of RA 8552 committed by any person who shall cause the fictitious registration of the birth of a child under the names of persons who are not his/her biological parents.
INTER-COUNTRY ADOPTION ACT OF 1995 (R.A. 8043) The socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines [Sec. 3 (a)].
Who may be adopted (Sec. 8)
Who may be adopted (Sec. 8)