Concepcion vs CA

GR 138961 | March 7 2002

Facts:

Petitioner Gerardo Concepcion and private respondent Theresa are married. A year later,
Theresa gave birth to their son Jose Gerardo. However, Gerardo discovered that nine years prior their
marriage, she had a subsisting marriage with Mario which resulted to the annulment of their marriage
and Jose Gerardo becoming an illegitimate child. The child’s custody was awarded to the mother
Theresa while the father was granted visitation rights.

Theresa argued that there was nothing in the law granting visitation rights in favor of the
putative father of an illegitimate child and should follow the rule that an illegitimate child shall use the
mother’s surname. Gerardo opposed the motion. He insisted on his visitation rights and the retention
of ‘Concepcion’ as Jose Gerardo’s surname.

Issue:

Is Jose Gerardo an illegitimate child?

Held:

No, applying Article 167 of the Family Code in the case at bar, Jose Gerardo cannot be impugned
as an illegitimate child on account of his mother being an adulteress. A minor cannot be deprived of
his/her legitimate status on the bare declaration of the mother and/or even much less, the supposed
father. In fine, the law and only the law determines who are the legitimate or illegitimate children for
one’s legitimacy or illegitimacy cannot ever be compromised.