BARCELOTE v REPUBLIC

SECOND DIVISION

August 7, 2017

G.R. No. 222095

IN THE MATTER OF PETITION FOR CANCELLATION OF CERTIFICATES OF LIVE BIRTH OFYUHARES JAN
BARCELOTE TINITIGAN AND AVEE KYNNA NOELLE BARCELOTE TINITIGAN JONNA KARLA BAGUIO
BARCELOTE, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, RICKY O. TINITIGAN, and LOCAL CIVIL REGISTRAR, DAVAO
CITY, Respondents,

DECISION

CARPIO, J.:

The Case

This petition for review1 assails the 5 March 2015 Decision2 and the3 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.

The Facts

In an Amended Petition5 dated 20 September 2012 filed before the RTC, petitioner Jonna Karla Baguio Barcelote
(Barcelote) stated the following facts:

On 24 June 2008, she bore a child out of wedlock with a married man named Ricky O. Tinitigan (Tinitigan) in her
relative's residence in Sibulan, Santa Cruz, Davao del Sur. She was not able to register the birth of their child, whom she
named Yohan Grace Barcelote, because she did not give birth in a hospital. To hide her relationship with Tinitigan, she
remained in Santa Cruz, Davao del Sur while Tinitigan lived with his legitimate family in Davao City and would only visit
her. On 24 August 2011, she bore another child with Tinitigan, whom she named as Joshua Miguel Barcelote. Again, she
did not register his birth to avoid humiliation, ridicule, and possible criminal charges. Thereafter, she lost contact with
Tinitigan and she returned to Davao City.

When her first child needed a certificate of live birth for school admission, Barcelote finally decided to register the births of
both children. She, then, returned to Santa Cruz, Davao del Sur to register their births. The Local Civil Registrar of Santa
Cruz approved the late registration of the births of Yohan Grace Barcelote and Joshua Miguel Barcelote, with Registry
Nos. 2012-1344 and 2012-1335, respectively, after submitting proof that the National Statistics Office (NSO) has no
record of both births on file.

However, upon submission of the copies of the late registration of the births to the NSO, Barcelote was informed that
there were two certificates of live birth (subject birth certificates) with the same name of the mother and the years of birth
of the children in their office. The subject birth certificates registered by the Local Civil Registrar of Davao City state the
following:

1. 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.

2. Birth Certificate with Registry No. 2011-28329:

a. Name: Yuhares Jan Barcelote Tinitigan;

b. Date of Birth: August 14, 20116

c. Place of Birth: EUP Family Care Clinic, Holy Cross Agdao Davao City;

d. Informant: Ricky O. Tinitigan.

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.

After complying with the jurisdictional requirements, Barcelote was allowed to present evidence ex parte. In her
testimony, Barcelote reiterated her allegations in the petition and emphasized that the subject birth certificates were
registered by her children's biological father, Tinitigan, without her knowledge. She also testified that the subject birth
certificates reflected wrong entries, but she did not present any other evidence.

The Ruling of the RTC

On 28 February 2013, the RTC ruled in favor of Barcelote and ordered the cancellation of the subject birth certificates, to
wit:

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 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, and

[ii] the certificate of live birth of Yuhares Jan Barcelote Tinitigan under Registry No. 2011-28329.

SO ORDERED.7

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.

Moreover, the RTC found that it is not for the best interest of the children to use the surname of their father, for there is
always a possibility that the legitimate children or wife may ask the illegitimate children to refrain from using the surname
of their father. The RTC further held that the subject birth certificates are not reflective of the correct personal
circumstances of the children because of the glaring differences in the names and other vital information entered in it.

The Ruling of the CA

On 5 March 2015, the CA reversed and set aside the decision of the RTC. The CA ruled that the registrations of the
children's births, caused by Tinitigan and certified by a registered midwife, Erlinda Padilla, were valid under Act No. 3753,
and such registrations did not require the consent of Barcelote. The CA further ruled that the children can legally and
validly use the surname of Tinitigan, since Republic Act No. (RA) 9255, amending Article 176 of the Family Code, allows
illegitimate children to use the surname of their father if the latter had expressly recognized them through the record of
birth appearing in the civil register,. such as in this case where Barcelote admitted that Tinitigan personally registered the
children's births and affixed his surname on the subject birth certificates.

Moreover, the CA found that Barcelote failed to discharge the burden of proving the falsity of the entries in the subject
birth certificates and to adduce evidence that the information she provided in the late registration are the true personal
circumstances of her children.

The dispositive portion of the decision states:

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.

SO ORDERED.8

In a Resolution dated 3 December 2015, the CA denied the motion for reconsideration.9

Hence, this present petition.

 The Issues

Barcelote raises the following issues for resolution:

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
ubstantial 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
ofdismissing 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 thenames of [the children].10

We grant the petition.

Prior to its amendment, Article 176 of the Family Code11 reads:

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. 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.

(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)

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:
 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 Recognition.

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.1âwphi1

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.

The 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.

Since the undisputed facts show that the children were born outside a valid marriage after 3 August 1988, specifically in
June 2008 and August 2011, respectively, then they are the illegitimate children of Tinitigan and Barcelote. The children
shall use the surname of their mother, Barcelote. The entry in the subject birth certificates as to the surname of the
children is therefore incorrect; their surname should have been "Barcelote" and not "Tinitigan."

We do not agree with the CA that the subject birth certificates are the express recognition of the children's filiation by
Tinitigan, because they were not duly registered in accordance with the law.

Act No. 3753, otherwise known as the Civil Registry Law,16 states:

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 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)
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

The first paragraph of Section 5 of Act No. 3753 assumes that the newborn child is legitimate since our law accords a
strong presumption in favor of legitimacy of children.19 On the other hand, the fourth paragraph of Section 5 specifically
provides that 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. The fourth paragraph of Section 5 specifically applies to an illegitimate child
and likewise underscores its mandatory character with the use of the word "shall." Lex special is derogat generali. Where
there is in the same statute a particular enactment and also a general one which, in its most comprehensive sense, would
include what is embraced in the former, the particular enactment must be operative, and the general enactment must be
taken to affect only such cases within its general language which are not within the provision of the particular
enactment.20

Thus, it is mandatory that the mother of an illegitimate child signs the birth certificate of her child in all cases, irrespective
of whether the father recognizes the child as his or not. The only legally known parent of an illegitimate child, by the fact
of illegitimacy, is the mother of the child who conclusively carries the blood of the mother.21 Thus, this provision ensures
that individuals are not falsely named as parents.22

The mother must sign and agree to the information entered in the birth certificate because she has the parental authority
and custody of the illegitimate child. In Briones v. Miguel, 23 we held that an illegitimate child is under the sole parental
authority of the mother, and the mother is entitled to have custody of the child. The right of custody springs from the
exercise of parental authority.24 Parental authority is a mass of rights and obligations which the law grants to parents for
the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the
education of their heart and senses.25

Since it appears on the face of the subject birth certificates that the mother did not sign the documents, the local civil
registrar had no authority to register the subject birth certificates. Under the IRR of Act No. 3753, the civil registrar shall
see to it that the Certificate of Live Birth presented for registration is properly and completely filled up, and the entries are
correct.26 In case the entries are found incomplete or incorrect, the civil registrar shall require the person concerned to fill
up the document completely or to correct the entries, as the case may be.27

Clearly, the subject birth certificates were not executed consistent with the provisions of the law respecting the
registration of birth of illegitimate children.1âwphi1 Aside from the fact that the entry in the subject birth certificates as to
the surname of the children is incorrect since it should have been that of the mother, the subject birth certificates are also
incomplete as they lacked the signature of the mother.

Acts executed against the provisions of mandatory or prohibitory laws shall be void.28 In Babiera v. Catotal, 29 we declared
as void and cancelled a birth certificate, which showed that the mother was already 54 years old at the time of the child's
birth and which was not signed either by the civil registrar or by the supposed mother.

Accordingly, we declare the subject birth certificates void and order their cancellation for being registered against the
mandatory provisions of the Family Code requiring the use of the mother's surname for her illegitimate children and Act
No. 3753 requiring the signature of the mother in her children's birth certificates.

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.30

WHEREFORE, we GRANT the petition. We REVERSE and SET ASIDE the 5 March 2015 Decision and the 3 December
2015 Resolution of the Court of Appeals in CA-G.R. CV No. 03223-MIN. We REINSTATE the 28 February 2013 Decision
of the Regional Trial Court of Davao City, Branch 15, in SPC. PROC. No. 12,007-12. The Civil Registrar of the Office of
the Local Civil Registry of Davao City is ordered to CANCEL: (1) the Certificate of Live Birth of Avee Kynna Noelle
Barcelote Tinitigan under Registry No. 2008-21709 and (2) the Certificate of Live Birth of Yuhares Jan Barcelote Tinitigan
under Registry No. 2011-28329.

SO ORDERED.
GAN v REPUBLIC

THIRD DIVISION

G.R. No. 207147, September 14, 2016

EMELITA BASILIO GAN, Petitioner, v. REPUBLIC OF THE PHILIPPINES, Respondent.

RESOLUTION

REYES, J.:

This is a petition for review on certiorari1 under Rule 45 of the Rules of Court seeking to annul and set aside the
Decision2 dated April 26, 2013 issued by the Court of Appeals (CA) in CA-G.R. CV No. 98112.

Facts

Emelita Basilio Gan (petitioner) was born on December 21, 1956 out of wedlock to Pia Gan, her father who is a Chinese
national, and Consolacion Basilio, her mother who is a Filipino citizen.3 The petitioner's birth certificate,4 which was
registered in the Office of the Local Civil Registrar (LCR) of Libmanan, Camarines Sur, indicates that her full name is
Emelita Basilio.

On June 29, 2010, the petitioner filed a Petition5 for correction of name with the Regional Trial Court (RTC) of Libmanan,
Camarines Sur. The petitioner sought to change the full name indicated in her birth certificate from "Emelita Basilio" to
"Emelita Basilio Gan." She claimed that she had been using the name "Emelita Basilio Gan" in her school records from
elementary until college, employment records, marriage contract, and other government records.6chanrobleslaw

Ruling of the RTC

On July 15, 2010, the RTC issued an Order, which noted that the petition filed sought not merely a correction of entry in
the birth certificate, but a change of name. Accordingly, the RTC ordered the petitioner to make the necessary
amendment to her petition to conform to the requirements of Rule 103 of the Rules of Court.7chanrobleslaw

The petitioner filed with the RTC an Amended Petition8 dated August 3, 2010 for change of name. The amended petition
contained substantially the same allegations as in the petition for correction of entry in the birth certificate. On August 10,
2010, the RTC set the initial hearing of the petition in a newspaper of general circulation. The Office of the Solicitor
General (OSG), as counsel of the Republic of the Philippines (respondent), filed its notice of appearance. The OSG
authorized the Office of the Provincial Prosecutor of Libmanan, Camarines Sur to appear and assist the OSG in the
proceedings before the RTC.9chanrobleslaw

On July 19, 2011, after due proceedings; the RTC of Libmanan, Camarines Sur, Branch 29, issued an Order10 granting
the petition for change of name. The RTC, thus, directed the LCR of Libmanan, Camarines Sur to change the petitioner's
name in her birth certificate from "Emelita Basilio" to "Emelita Basilio Gan." The RTC opined that, from the evidence
presented, the said petition was filed solely to put into order the records of the petitioner and that changing her name in
her birth certificate into Emelita Basilio Gan would avoid confusion in her personal records.11chanrobleslaw

The respondent sought a reconsideration12 of the RTC Order dated July 19, 2011, alleging that the petitioner, who is an
illegitimate child, failed to adduce evidence that she was duly recognized by her father, which would have allowed her to
use the surname of her father.13 On October 17, 2011, the RTC issued an Order14 denying the respondent's motion for
reconsideration.

Ruling of the CA

On appeal, the CA, in its Decision15 dated April 26, 2013, reversed and set aside the RTC Orders dated July 19, 2011 and
October 17, 2011. The CA opined that pursuant to Article 176 of the Family Code, as amended by Republic Act No.
9255,16 the petitioner, as an illegitimate child, may only use the surname of her mother; she may only use the surname of
her father if their filiation has been expressly recognized by her father.17 The CA pointed out that the petitioner has not
adduced any evidence showing that her father had recognized her as his illegitimate child and, thus, she may not use the
surname of her father.18chanrobleslaw

In this petition for review, the petitioner maintains that the RTC correctly granted her petition since she only sought to
have her name indicated in her birth certificate changed to avoid confusion as regards to her personal records.19 She
insists that her failure to present evidence that her father recognized her as his illegitimate child is immaterial; a change of
name is reasonable and warranted, if it is necessary to avoid confusion.20chanrobleslaw

Ruling of the Court

The petition is denied.

A change of name is a privilege and not a matter of right; a proper and reasonable cause must exist before a person may
be authorized to change his name.21 "In granting or denying petitions for change of name, the question of proper and
reasonable cause is left to the sound discretion of the court. x x x What is involved is not a mere matter of allowance or
disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in
support thereof, mindful of the consequent results in the event of its grant and with the sole prerogative for making such
determination being lodged in the courts."22chanrobleslaw

After a judicious review of the records of this case, the Court agrees with the CA that the reason cited by the petitioner in
support of her petition for change of name, i.e. that she has been using the name "Emelita Basilio Gan" in all of her
records, is not a sufficient or proper justification to allow her petition. When the petitioner was born in 1956, prior to the
enactment and effectivity of the Family Code, the pertinent provisions of the Civil Code then regarding the petitioner's use
of surname provide:ChanRoblesVirtualawlibrary
Article 366. A natural child acknowledged by both parents shall principally use the surname of the father.
If recognized by only one of the parents, a natural child shall employ the surname of the recognizing
parent.

Article 368. Illegitimate children referred to in Article 287 shall bear the surname of the mother.
In her amended petition for change of name, the petitioner merely stated that she was born out of wedlock;23 she did not
state whether her parents, at the time of her birth, were not disqualified by any impediment to marry each other, which
would make her a natural child pursuant to Article 269 of the Civil Code. If, at the time of the petitioner's·birth, either of
her parents had an impediment to marry the other, she may only bear the surname of her mother pursuant to Article 368
of the Civil Code. Otherwise, she may use the surname of her father provided that she was acknowledged by her father.

However, the petitioner failed to adduce any evidence that would show that she indeed was duly acknowledged by his
father. The petitioner's evidence consisted only of her birth certificate signed by her mother, school records, employment
records, marriage contract, certificate of baptism, and other government records. Thus, assuming that she is a natural
child pursuant to Article 269 of the Civil Code, she could still not insist on using her father's surname. It was, thus, a
blatant error on the part of the RTC to have allowed the petitioner to change her name from "Emelita Basilio" to "Emelita
Basilio Gan."

The petitioner's reliance on the cases of Alfon v. Republic of the Philippines,24Republic of the Philippines v. Coseteng-
Magpayo,25cralawred and Republic of the Philippines v. Lim26 to support her position is misplaced.

In Alfon, the name of the petitioner therein which appeared in her birth certificate was Maria Estrella Veronica Primitiva
Duterte; she was a legitimate child of her father and mother. She filed a petition for change of name, seeking that she be
allowed to use the surname "Alfon," her mother's surname, instead of "Duterte." The trial court denied the petition,
ratiocinating that under Article 364 of the Civil Code, legitimate children shall principally use the surname of the father.
The Court allowed the petitioner therein to use the surname of her mother since Article 364 of the Civil Code used the
word "principally" and not "exclusively" and, hence, there is no legal obstacle if a legitimate child should choose to use the
mother's surname to which he or she is legally entitled.27chanrobleslaw

In contrast, Articles 366 and 368 of the Civil Code do not give to an illegitimate child or a natural child not acknowledged
by the father the option to use the surname of the father. Thus, the petitioner cannot insist that she is allowed to use the
surname of her father.

In Coseteng-Magpayo, the issue was the proper procedure to be followed when the change sought to be effected in the
birth certificate affects the civil status of the respondent therein from legitimate to illegitimate. The respondent therein
claimed that his parents were never legally married; he filed a petition to change his name from "Julian Edward Emerson
Coseteng Magpayo," the name appearing in his birth certificate, to "Julian Edward Emerson Marquez-Lim Coseteng." The
notice setting the petition for hearing was published and, since there was no opposition thereto, the trial court; issued an
order of general default and eventually granted the petition of the respondent therein by, inter alia, deleting the entry on
the date and place of marriage of his parents and correcting his surname from "Magpayo" to "Coseteng."28 The Court
reversed the trial court's decision since the proper remedy would have been to file a petition under Rule 108 of the Rules
of Court. The Court ruled that the change sought by the respondent therein involves his civil status as a legitimate child; it
may only be given due course through an adversarial proceedings under Rule 108 of the Rules of Court. The Court's
pronouncement in Coseteng-Magpayo finds no application in this case.

Finally, Lim likewise finds no application in this case. In Lim, the petition that was filed was for correction of entries under
Rule 108 of the Rules of Court; the petition sought, among others, is the correction of the surname of the respondent
therein from "Yo" to "Yu." Further, the respondent therein, although an illegitimate child, had long been using the surname
of her father. It bears stressing that the birth certificate of the respondent therein indicated that her surname was the
same as her father albeit misspelled. Thus, a correction of entry in her birth certificate is appropriate.29chanrobleslaw

Here, the petitioner filed a petition for change of name under Rule 103 and not a petition for correction of entries under
Rule 108. Unlike in Lim, herein petitioner's birth certificate indicated that she bears the surname of her mother and not of
her father.

WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED.

SO ORDERED.
GRANDE v ANTONIO

EN BANC

G.R. No. 206248               February 18, 2014

GRACE M. GRANDE, Petitioner,
vs.
PATRICIO T. ANTONIO, Respondent.

DECISION

VELASCO, JR., J.:

Before this Court is a Petition for Review on Certiorari under Rule 45, assailing the July 24, 2012 Decision  and 1

March 5, 2013 Resolution  of the Court of Appeals (CA) in CA-G.R. CV No. 96406.
2

As culled from the records, the facts of this case are:

Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio) for a period of time lived together as
husband and wife, although Antonio was at that time already married to someone else.  Out of this illicit relationship,
3

two sons were born: Andre Lewis (on February 8, 1998) and Jerard Patrick (on October 13, 1999).  The children
4

were not expressly recognized by respondent as his own in the Record of Births of the children in the Civil Registry.
The parties’ relationship, however, eventually turned sour, and Grande left for the United States with her two
children in May 2007. This prompted respondent Antonio to file a Petition for Judicial Approval of Recognition with
Prayer to take Parental Authority, Parental Physical Custody, Correction/Change of Surname of Minors and for the
Issuance of Writ of Preliminary Injunction before the Regional Trial Court, Branch 8 of Aparri, Cagayan (RTC),
appending a notarized Deed of Voluntary Recognition of Paternity of the children. 5

On September 28, 2010, the RTC rendered a Decision in favor of herein respondent Antonio, ruling that "[t]he
evidence at hand is overwhelming that the best interest of the children can be promoted if they are under the sole
parental authority and physical custody of [respondent Antonio]."  Thus, the court a quo decreed the following:
6

WHEREFORE, foregoing premises considered, the Court hereby grants [Antonio’s] prayer for recognition and the
same is hereby judicially approved. x x x Consequently, the Court forthwith issues the following Order granting the
other reliefs sought in the Petition, to wit:

a. Ordering the Office of the City Registrar of the City of Makati to cause the entry of the name of [Antonio] as the
father of the aforementioned minors in their respective Certificate of Live Birth and causing the correction/change
and/or annotation of the surnames of said minors in their Certificate of Live Birth from Grande to Antonio;

b. Granting [Antonio] the right to jointly exercise Parental Authority with [Grande] over the persons of their minor
children, Andre Lewis Grande and Jerard Patrick Grande;

c. Granting [Antonio] primary right and immediate custody over the parties’ minor children Andre Lewis Grandre and
Jerard Patrick Grande who shall stay with [Antonio’s] residence in the Philippines from Monday until Friday evening
and to [Grande’s] custody from Saturday to Sunday evening;

d. Ordering [Grande] to immediately surrender the persons and custody of minors Andre Lewis Grande and Jerard
Patrick Grande unto [Antonio] for the days covered by the Order;

e. Ordering parties to cease and desist from bringing the aforenamed minors outside of the country, without the
written consent of the other and permission from the court.

f. Ordering parties to give and share the support of the minor children Andre Lewis Grande and Jerard Patrick
Grande in the amount of ₱30,000 per month at the rate of 70% for [Antonio] and 30% for [Grande].  (Emphasis 7

supplied.)

Aggrieved, petitioner Grande moved for reconsideration. However, her motion was denied by the trial court in its
Resolution dated November 22, 2010  for being pro forma and for lack of merit.
8

Petitioner Grande then filed an appeal with the CA attributing grave error on the part of the RTC for allegedly ruling
contrary to the law and jurisprudence respecting the grant of sole custody to the mother over her illegitimate
children.  In resolving the appeal, the appellate court modified in part the Decision of the RTC. The dispositive
9

portion of the CA Decision reads:

WHEREFORE, the appeal is partly GRANTED. Accordingly, the appealed Decision of the Regional Trial Court
Branch 8, Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in part and shall hereinafter read as follows:

a. The Offices of the Civil Registrar General and the City Civil Registrar of Makati City are DIRECTED to enter the
surname Antonio as the surname of Jerard Patrick and Andre Lewis, in their respective certificates of live birth, and
record the same in the Register of Births;

b. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre Lewis to the custody of their
mother herein appellant, Grace Grande who by virtue hereof is hereby awarded the full or sole custody of these
minor children;

c. [Antonio] shall have visitorial rights at least twice a week, and may only take the children out upon the written
consent of [Grande]; and

d. The parties are DIRECTED to give and share in support of the minor children Jerard Patrick and Andre Lewis in
the amount of ₱30,000.00 per month at the rate of 70% for [Antonio] and 30% for [Grande]. (Emphasis supplied.)

In ruling thus, the appellate court ratiocinated that notwithstanding the father’s recognition of his children, the
mother cannot be deprived of her sole parental custody over them absent the most compelling of reasons.  Since 10

respondent Antonio failed to prove that petitioner Grande committed any act that adversely affected the welfare of
the children or rendered her unsuitable to raise the minors, she cannot be deprived of her sole parental custody
over their children.

The appellate court, however, maintained that the legal consequence of the recognition made by respondent
Antonio that he is the father of the minors, taken in conjunction with the universally protected "best-interest-of-the-
child" clause, compels the use by the children of the surname "ANTONIO." 11

As to the issue of support, the CA held that the grant is legally in order considering that not only did Antonio express
his willingness to give support, it is also a consequence of his acknowledging the paternity of the minor
children.  Lastly, the CA ruled that there is no reason to deprive respondent Antonio of his visitorial right especially
12

in view of the constitutionally inherent and natural right of parents over their children.
13

Not satisfied with the CA’s Decision, petitioner Grande interposed a partial motion for reconsideration, particularly
assailing the order of the CA insofar as it decreed the change of the minors’ surname to "Antonio." When her
motion was denied, petitioner came to this Court via the present petition. In it, she posits that Article 176 of the
Family Code––as amended by Republic Act No. (RA) 9255, couched as it is in permissive language––may not be
invoked by a father to compel the use by his illegitimate children of his surname without the consent of their mother.

We find the present petition impressed with merit.

The sole issue at hand is the right of a father to compel the use of his surname by his illegitimate children upon his
recognition of their filiation. Central to the core issue is the application of Art. 176 of the Family Code, originally
phrased as follows:

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. Except for this modification, all other provisions in the Civil Code governing
successional rights shall remain in force.

This provision was later amended on March 19, 2004 by RA 9255  which now reads:
14

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 of one-half of the legitime of a legitimate child.
(Emphasis supplied.)

From the foregoing provisions, it is clear that the general rule is that an illegitimate child shall use the surname of
his or her mother. The exception provided by RA 9255 is, in case his or her filiation is expressly recognized by the
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. In such a situation, the illegitimate child may use the surname
of the father.

In the case at bar, respondent filed a petition for judicial approval of recognition of the filiation of the two children
with the prayer for the correction or change of the surname of the minors from Grande to Antonio when a public
document acknowledged before a notary public under Sec. 19, Rule 132 of the Rules of Court  is enough to 15
establish the paternity of his children. But he wanted more: a judicial conferment of parental authority, parental
custody, and an official declaration of his children’s surname as Antonio.

Parental authority over minor children is lodged by Art. 176 on the mother; hence, respondent’s prayer has no legal
mooring. Since parental authority is given to the mother, then custody over the minor children also goes to the
mother, unless she is shown to be unfit.

Now comes the matter of the change of surname of the illegitimate children. Is there a legal basis for the court a
quo to order the change of the surname to that of respondent?

Clearly, there is none. Otherwise, the order or ruling will contravene the explicit and unequivocal provision of Art.
176 of the Family Code, as amended by RA 9255.

Art. 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is not
the father (herein respondent) or the mother (herein petitioner) who is granted by law the right to dictate the
surname of their illegitimate children.

Nothing is more settled than that when the law is clear and free from ambiguity, it must be taken to mean what it
says and it must be given its literal meaning free from any interpretation.  Respondent’s position that the court can
16

order the minors to use his surname, therefore, has no legal basis.

On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide by its
words. The use of the word "may" in the provision 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.
17

It is best to emphasize once again that the yardstick by which policies affecting children are to be measured is their
best interest. On the matter of children’s surnames, this Court has, time and again, rebuffed the idea that the use of
the father’s surname serves the best interest of the minor child. In Alfon v. Republic,  for instance, this Court
18

allowed even a legitimate child to continue using the surname of her mother rather than that of her legitimate father
as it serves her best interest and there is no legal obstacle to prevent her from using the surname of her mother to
which she is entitled. In fact, in Calderon v. Republic,  this Court, upholding the best interest of the child concerned,
19

even allowed the use of a surname different from the surnames of the child’s father or mother. Indeed, the rule
regarding the use of a child’s surname is second only to the rule requiring that the child be placed in the best
possible situation considering his circumstances.

In Republic of the Philippines v. Capote,  We gave due deference to the choice of an illegitimate minor to use the
20

surname of his mother as it would best serve his interest, thus:

The foregoing discussion establishes the significant connection of a person’s name to his identity, his status in
relation to his parents and his successional rights as a legitimate or illegitimate child. For sure, these matters should
not be taken lightly as to deprive those who may, in any way, be affected by the right to present evidence in favor of
or against such change.

The law and facts obtaining here favor Giovanni’s petition. Giovanni availed of the proper remedy, a petition for
change of name under Rule 103 of the Rules of Court, and complied with all the procedural requirements. After
hearing, the trial court found (and the appellate court affirmed) that the evidence presented during the hearing of
Giovanni’s petition sufficiently established that, under Art. 176 of the Civil Code, Giovanni is entitled to change his
name as he was never recognized by his father while his mother has always recognized him as her child. A change
of name will erase the impression that he was ever recognized by his father. It is also to his best interest as it will
facilitate his mother’s intended petition to have him join her in the United States. This Court will not stand in the way
of the reunification of mother and son. (Emphasis supplied.)

An argument, however, may be advanced advocating the mandatory use of the father’s surname upon his
recognition of his illegitimate children, citing the Implementing Rules and Regulations (IRR) of RA 9255,  which 21

states:

Rule 7. Requirements for the Child to Use the Surname of the Father

7.1 For Births Not Yet Registered

7.1.1 The illegitimate child shall use the surname of the father if a public document is executed by
the father, either at the back of the Certificate of Live Birth or in a separate document.

7.1.2 If admission of paternity is made through a private instrument, the child shall use the surname
of the father, provided the registration is supported by the following documents:

xxxx
 7.2. For Births Previously Registered under the Surname of the Mother

7.2.1 If filiation has been expressly recognized by the father, the child shall use the surname of the
father upon the submission of the accomplished AUSF [Affidavit of Use of the Surname of the
Father].

7.2.2 If filiation has not been expressly recognized by the father, the child shall use the surname of
the father upon submission of a public document or a private handwritten instrument supported by
the documents listed in Rule 7.1.2.

7.3 Except in Item 7.2.1, the consent of the illegitimate child is required if he/she has reached the
age of majority. The consent may be contained in a separate instrument duly notarized.

xxxx

Rule 8. Effects of Recognition

8.1 For Births Not Yet Registered

8.1.1 The surname of the father shall be entered as the last name of the child in the Certificate of
Live Birth. The Certificate of Live Birth shall be recorded in the Register of Births.

xxxx

8.2 For Births Previously Registered under the Surname of the Mother

8.2.1 If admission of paternity was made either at the back of the Certificate of Live Birth or in a
separate public document or in a private handwritten document, the public document or AUSF shall
be recorded in the Register of Live Birth and the Register of Births as follows:

"The surname of the child is hereby changed from (original surname) to (new surname) pursuant to
RA 9255."

The original surname of the child appearing in the Certificate of Live Birth and Register of Births shall not be
changed or deleted.

8.2.2 If filiation was not expressly recognized at the time of registration, the public document or AUSF shall be
recorded in the Register of Legal Instruments. Proper annotation shall be made in the Certificate of Live Birth and
the Register of Births as follows:

"Acknowledged by (name of father) on (date). The surname of the child is hereby changed from (original surname)
on (date) pursuant to RA 9255." (Emphasis supplied.)

Nonetheless, the hornbook rule is that an administrative issuance cannot amend a legislative act. In MCC Industrial
Sales Corp. v. Ssangyong Corporation,  We held:
22

After all, the power of administrative officials to promulgate rules in the implementation of a statute is necessarily
limited to what is found in the legislative enactment itself. The implementing rules and regulations of a law cannot
extend the law or expand its coverage, as the power to amend or repeal a statute is vested in the Legislature. Thus,
if a discrepancy occurs between the basic law and an implementing rule or regulation, it is the former that prevails,
because the law cannot be broadened by a mere administrative issuance — an administrative agency certainly
cannot amend an act of Congress.

Thus, We can disregard contemporaneous construction where there is no ambiguity in law and/or the construction
is clearly erroneous.  What is more, this Court has the constitutional prerogative and authority to strike down and
23

declare as void the rules of procedure of special courts and quasi- judicial bodies  when found contrary to statutes
24

and/or the Constitution.  Section 5(5), Art. VIII of the Constitution provides:
25

Sec. 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by
the Supreme Court. (Emphasis supplied.)
Thus, We exercise this power in voiding the above-quoted provisions of the IRR of RA 9255 insofar as it provides
the mandatory use by illegitimate children of their father’s surname upon the latter’s recognition of his paternity.

To conclude, the use of the word "shall" in the IRR of RA 9255 is of no moment. The clear, unambiguous, and
unequivocal use of "may" in Art. 176 rendering the use of an illegitimate father’s surname discretionary controls,
and illegitimate children are given the choice on the surnames by which they will be known.

At this juncture, We take note of the letters submitted by the children, now aged thirteen (13) and fifteen (15) years
old, to this Court declaring their opposition to have their names changed to "Antonio."  However, since these letters
26

were not offered before and evaluated by the trial court, they do not provide any evidentiary weight to sway this
Court to rule for or against petitioner.  A proper inquiry into, and evaluation of the evidence of, the children's choice
27

of surname by the trial court is necessary.

WHEREFORE, the instant petition is PARTIALLY GRANTED. The July 24, 2012 Decision of the Court of Appeals in
CA-G.R. CV No. 96406 is MODIFIED, the dispositive portion of which shall read:

WHEREFORE, the appeal is partly GRANTED. Accordingly. the appealed Decision of the Regional Trial Court
Branch 8, Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in part and shall hereinafter read as follows:

a. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre Lewis to the custody of their
mother herein appellant, Grace Grande who by virtue hereof is hereby awarded the full or sole custody of these
minor children;

b. [Antonio] shall have visitation rights  at least twice a week, and may only take the children out upon the written
28

consent of [Grande]:

c. The parties are DIRECTED to give and share in support of the minor children Jerard Patrick and Andre Lewis in
the amount of ₱30,000.00 per month at the rate of 70% for [Antonio] and 30% for [Grande]; and

d. The case is REMANDED to the Regional Trial Court, Branch 8 of Aparri, Cagayan for the sole purpose of
determining the surname to be chosen by the children Jerard Patrick and Andre Lewis.

Rule 7 and Rule 8 of the Office of the Civil Registrar General Administrative Order No. 1, Series of 2004 are
DISAPPROVED and hereby declared NULL and VOID.

SO ORDERED.
MASBATE v RELUCIO

SECOND DIVISION

G.R. No. 235498, July 30, 2018

RENALYN A. MASBATE AND SPOUSES RENATO MASBATE AND MARLYN MASBATE, Petitioners, v. RICKY JAMES RELUCIO, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated January 12, 2017 and the Omnibus Resolution 3 dated October 3, 2017 of the
Court of Appeals (CA) in CA-G.R. SP No. 144406, which set aside the Orders dated December 4, 2015 4 and January 7, 20165 of the Regional Trial
Court of Legazpi City, Albay, Branch 8 (RTC) in Special Proceeding (SP) No. FC-15-239, directed the remand of the case to the RTC for trial, and
granted respondent Ricky James Relucio (Ricky James) "temporary custody" once a month for a period not exceeding twenty-four (24) hours over the
minor, Queenie Angel M. Relucio (Queenie), his illegitimate daughter with petitioner Renalyn A. Masbate (Renalyn), on top of visitation rights fixed at
two (2) days per week.

The Facts

Queenie was born on May 3, 2012 to Renalyn and Ricky James, who had been living together with Renalyn's parents without the benefit of marriage.
Three (3) years later, or in April 2015, the relationship ended. Renalyn went to Manila, supposedly leaving Queenie behind in the care and custody of
her father, Ricky James.6

Ricky James alleged that on November 7, 2015, Spouses Renata and Marlyn Masbate (Renalyn's parents) took Queenie from the school where he had
enrolled her. When asked to give Queenie back, Renalyn's parents refused and instead showed a copy of a Special Power of Attorney 7 (SPA) executed
by Renalyn granting full parental rights, authority, and custody over Queenie to them. Consequently, Ricky James filed a petition for habeas corpus
and child custody8 docketed as SP No. FC-15-239 before the RTC (petition a quo).9

A hearing was conducted on December 3, 2015, where Renalyn brought Queenie and expressed the desire for her daughter to remain in her custody.10

The RTC Ruling

In an Order11 dated December 4, 2015, the RTC ruled that the custody of three (3)-year-old Queenie rightfully belongs to Renalyn, citing the second
paragraph of Article 213 of the Family Code, which states that "[n]o child under seven [(7)] years of age shall be separated from the mother x x x." The
RTC likewise found that, while Renalyn went to Manila to study dentistry and left Queenie in the custody of her parents, her intention was to bring
Queenie to Manila at a later time. Thus, in the fallo of said Order, the RTC declared that it will "NOT GIVE FURTHER DUE COURSE" to the petition a
quo.12

Dissatisfied, Ricky James moved for reconsideration,13 lamenting the "[extraordinary] speed in the issuance of the x x x award of custody over the child
to [petitioners]."14 He claimed that the hearing conducted on December 3, 2015 was not the kind of hearing that was procedurally contemplated under
A.M. No. 03-04-04-SC,15 otherwise known as the "Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors," because the
RTC merely propounded random questions without placing the witnesses on the stand to testify under oath. Moreover, he was allegedly deprived of his
right to due process when the RTC refused to give further due course to the petition  a quo.16

The motion was denied in an Order17 dated January 7, 2016, wherein the RTC emphasized that Queenie was born out of wedlock, for which reason she
shall be under the parental authority of her mother, Renalyn, pursuant to Article 17618 of the Family Code. In addition, the RTC faulted Ricky James for
failing to present credible evidence in court to demonstrate that Renalyn is unfit to take custody of their daughter.19

Aggrieved, Ricky James filed an appeal20 before the CA, imputing error upon the RTC: (a) in not conducting a full blown trial and not receiving evidence;
(b) in granting sole custody to Renalyn without giving paramount consideration to the best interests of the child; and (c) in not granting him shared
custody and/or visitation rights.21 Ricky James insisted that the tender-age presumption in Article 213 of the Family Code is rebuttable by evidence of
the mother's neglect, abandonment, and unemployment, among other factors, and claimed that Renalyn abandoned Queenie when she went to live in
Manila and failed to seek employment to support her daughter.22

For their part, Renalyn and her parents (petitioners) moved for the outright dismissal of the appeal on the ground that no appeal can be had against an
order denying a motion for reconsideration. In addition, petitioners argued that being the illegitimate father of Queenie, Ricky James has absolutely no
right of custody over her, and that Renalyn's act of entrusting the care of Queenie to her parents was not a renunciation of parental authority but only a
temporary separation necessitated by her need to adjust to her studies, which she undertook to improve her and Queenie's life.23

On September 2, 2016, the case was referred to mediation, but the parties were unable to arrive at a settlement.24

The CA Ruling

In a Decision25 dated January 12, 2017, the CA set aside the assailed RTC Orders and remanded the case to the lower court for determination of who
should exercise custody over Queenie.26 The CA found that the RTC hastily dismissed the petition a quo upon Queenie's production in court, when the
objective of the case was to establish the allegation that Renalyn had been neglecting Queenie, which was a question of fact that must be resolved by
trial.27 Citing Section 18 of A.M. No. 03-04-04-SC, which states that, "[a]fter trial, the court shall render judgment awarding the custody of the minor to
the proper party considering the best interests of the minor," the CA declared that the dismissal by the RTC of the petition a quo was not supported by
the Rules.28

Nonetheless, the CA affirmed the RTC Orders granting custody to Renalyn "pending the outcome of the case," stating that only Queenie's mother,
Renalyn, has parental authority over her as she is an illegitimate child. Further, the CA declared that the RTC must thresh out Renalyn's capacity to
raise her daughter, which shall, in tum, determine whether or not the tender-age presumption must be upheld, or whether Queenie's well-being is better
served with her remaining in the custody of her maternal grandparents in the exercise of their substitute parental authority or with Ricky James, who
was Queenie's actual custodian before the controversy.29

Finally, the CA granted Ricky James visitation rights of two (2) days a week, with provision for additional visitation days that may be permitted by
Renalyn.30

Petitioners filed a motion for reconsideration,31 while Ricky James filed a motion for clarification32 asking that he be allowed to pick up Queenie from
petitioners' residence on a Friday afternoon and to return the child on a Sunday afternoon.33 In their Comment,34 petitioners argued that the arrangement
proposed by Ricky James is not within the scope of his visitation rights, but that he may, through Renalyn's written consent, take Queenie home on
certain family occasions.35

In its Omnibus Resolution36 dated October 3, 2017, the CA denied petitioners' motion for reconsideration for lack of merit, insisting on its application of
the case of Bagtas v. Santos,37 which held that a trial is still necessary to determine the issue of custody despite the production of the child.38 On the
other hand, the CA ruled in favor of Ricky James' motion for clarification, granting the latter what it calls a " limited and temporary custody" that will allow
him to take Queenie out once a month, or on the first Saturday of each month, for a period not exceeding twenty-four (24) hours, but which shall not
reduce his visitation days fixed at two (2) days per week.39 In so holding, the appellate court cited "humane and practical considerations"40 and argued
that it is in Queenie's best interest to have an exclusive time with Ricky James.41

Undaunted, petitioners filed the instant petition for review on certiorari, maintaining that the RTC correctly dismissed the petition a quo after the hearing
on December 3, 2015 on the grounds that: (a) the purported custodial right that Ricky James seeks to enforce in filing his petition has no legal
basis; (b) the petition a quo does not comply with the requisites for habeas corpus petitions involving custody of minors; and (c) there are no more
factual issues to be resolved as it had already been admitted by Renalyn during the hearing that she goes to Manila to study but that she comes home
every week for Queenie and whenever there is a problem.42

Ricky James filed a Comment/Opposition43 as well as an Urgent Omnibus Motion44 to dismiss the petition and for immediate execution pending appeal
of the Omnibus Resolution dated October 3, 2017, claiming that the instant petition was filed out of time and that it was erroneous for petitioners to state
that the last day of filing fell on November 4, 2017, a Saturday, which compelled them to file their petition on November 6, 2017, a Monday. By his
calculation, the fifteen (15)-day reglementary period, which commenced to run upon petitioners' receipt on October 19, 2017 of the Omnibus Resolution
dated October 3, 2017, ended on November 3, 2017, a Friday, and not on November 4, 2017.45

The Issue Before the Court

The main issue for the Court's resolution is whether or not the CA correctly remanded the case a quo for determination of who should exercise custody
over Queenie.

The Court's Ruling

The petition is partially meritorious.

I.

At the outset, it must be stressed that while petitioners may have erroneously determined the expiration of the reglementary period for filing the instant
petition, which resulted in the same being filed a day late on November 6, 2017, the Court finds it proper to overlook this procedural lapse given the
compelling merit of the petition in the interest of substantial justice.

The Court has declared that rules on the perfection of appeals, particularly on the period of filing thereof, must occasionally yield to the loftier ends of
substantial justice and equity. In the same manner that the CA took cognizance of respondent's appeal from the denial of his motion for reconsideration
of the RTC Order dated December 4, 2015,46 which is technically prohibited under the Rules of Court, so shall this Court hold that the ends of justice
would be served better when cases are determined, not on mere technicality or some procedural nicety, but on the merits – after all the parties are
given full opportunity to ventilate their causes and defenses. Lest it be forgotten, dismissal of appeals purely on technical grounds is frowned upon. The
rules of procedure ought not to be applied in a very rigid, technical sense, for they have been adopted to help secure – not override – substantial
justice.47

In this relation, it may not be amiss to point out that the fundamental policy of the State, as embodied in the Constitution in promoting and protecting the
welfare of children, shall not be disregarded by the courts by mere technicality in resolving disputes which involve the family and the youth.48 The State
is mandated to provide protection to those of tender years. Through its laws, it safeguards them from everyone, even their own parents, to the end that
their eventual development as responsible citizens and members of society shall not be impeded, distracted or impaired by family acrimony.49

Accordingly, the Court shall delve into the substantive arguments propounded in this case.

II.

It is settled that habeas corpus may be resorted to in cases where "the rightful custody of any person is withheld from the person entitled thereto."50 In
custody cases involving minors, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child. The grant of the
writ depends on the concurrence of the following requisites: (1) that the petitioner has the right of custody over the minor; (2) that the rightful custody of
the minor is being withheld from the petitioner by the respondents; and (3) that it is to the best interest of the minor concerned to be in the custody of
petitioner and not that of the respondents.51

"The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or patria potestas in Roman Law is the
juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter's needs.
It is a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as
the cultivation of their intellect and the education of their heart and senses. As regards parental authority, 'there is no power, but a task; no complex of
rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.'"52

As a general rule, the father and the mother shall jointly exercise parental authority over the persons of their common children.53 However, insofar as
illegitimate children are concerned, Article 17654 of the Family Code states that illegitimate children shall be under the parental authority of their
mother. Accordingly, mothers (such as Renalyn) are entitled to the sole parental authority of their illegitimate children (such as Queenie),
notwithstanding the father's recognition of the child. In the exercise of that authority, mothers are consequently entitled to keep their illegitimate children
in their company, and the Court will not deprive them of custody, absent any imperative cause showing the mother's unfitness to exercise such
authority and care.55

In addition, Article 213 of the same Code provides for the so-called tender-age presumption, stating that "[n]o child under seven [(7)] years of age shall
be separated from the mother unless the court finds compelling reasons to order otherwise." The rationale behind the rule was explained by the Code
Commission in this wise:

The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man
can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for
"compelling reasons" for the good of the child; those cases must indeed be rare, if the mother's heart is not to be unduly hurt. x x x56

According to jurisprudence, the following instances may constitute "compelling reasons" to wrest away custody from a mother over her child although
under seven (7) years of age: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child,
insanity or affliction with a communicable disease.57

As the records show, the CA resolved to remand the case to the RTC, ratiocinating that there is a need to establish whether or not Renalyn has been
neglecting Queenie,58 for which reason, a trial is indispensable for reception of evidence relative to the preservation or overturning of the tender-age
presumption under Article 213 of the Family Code.59 In opposition, petitioners contend that the second paragraph of Article 213 of the Family Code
would not even apply in this case (so as to determine Renalyn's unfitness as a mother) because the said provision only applies to a situation where the
parents are married to each other.60 As basis, petitioners rely on the Court's ruling in Pablo-Gualberto v. Gualberto V61 (Pablo-Gualberto), the pertinent
portion of which reads:

In like manner, the word "shall" in Article 213 of the Family Code and Section 6 of Rule 99 of the Rules of Court has been held to
connote a mandatory character. Article 213 and Rule 99 similarly contemplate a situation in which the parents of the minor
are married to each other, but are separated by virtue of either a decree of legal separation or a de facto separation. x x x62

For easy reference, Article 213 of the Family Code and Section 6, Rule 99 of the Rules of Court, which were cited in Pablo-Gualberto, are quoted
hereunder in full:

Article 213 of the Family Code

Article 213. In case of separation of the 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 chosen is unfit.

No child under seven years of age shall be separated from the mother unless the court finds compelling
reasons to order otherwise.

Section 6, Rule 99 of the Rules of Court

Section 6. Proceedings as to child whose parents are separated. Appeal. – When husband and wife are divorced or living
separately and apart from each other, and the question to the care, custody, and control of a child or children of their marriage is
brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing the testimony
as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child
to choose which parent it prefers to live with if it be over ten years of age, unless the parent so chosen be unfit to take charge of the
child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. If, upon such hearing, it appears that both parents
are improper persons to have the care, custody, and control of the child, the court may either designate the paternal or maternal
grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or
commit it to any suitable asylum, children's home, or benevolent society. The court may in conformity with the provisions of the Civil
Code order either or both parents to support or help support said child, irrespective of who may be its custodian, and may make any
order that is just and reasonable permitting the parent who is deprived of its care and custody to visit the child or have temporary
custody thereof. Either parent may appeal from an order made in accordance with the provisions of this section. No child under
seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.

Notably, after a careful reading of Pablo-Gualberto, it has been determined that the aforequoted pronouncement therein is based on a previous child
custody case, namely, Briones v. Miguel63(Briones), wherein the Court pertinently held as follows:

However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This provision contemplates a situation in which
the parents of the minor are married to each other but are separated either by virtue of a decree of legal separation or because they
are living separately de facto. In the present case, it has been established that petitioner and Respondent Loreta were never
married. Hence, that portion of the CA Decision allowing the child to choose which parent to live with is deleted, but without
disregarding the obligation of petitioner to support the child.64

For guidance, the relevant issue in Briones for which the stated excerpt was made is actually the application of Section 6, Rule 99 of the Rules of Court
insofar as it permits the child over ten (10) years of age to choose which parent he prefers to live with. As the Court's ruling in Briones was prefaced:
"[t]he Petition has no merit. However, the assailed Decision should be modified in regard to its erroneous application of Section 6 of Rule 99 of the
Rules of Court."65 Accordingly, since the statement in Pablo-Gualberto invoked by petitioners, i.e., that "Article 213 and Rule 99 similarly contemplate a
situation in which the parents of the minor are married to each other x x x," was based on Briones, then that same statement must be understood
according to its proper context – that is, the issue pertaining to the right of a child to choose which parent he prefers to live with. The reason as to why
this statement should be understood in said manner is actually not difficult to discern: the choice of a child over seven (7) years of age (first paragraph
of Article 213 of the Family Code) and over ten (10) years of age (Rule 99 of the Rules of Court) shall be considered in custody disputes only between
married parents because they are, pursuant to Article 211 of the Family Code, accorded joint parental authority over the persons of their common
children. On the other hand, this choice is not available to an illegitimate child, much more one of tender age such as Queenie (second paragraph of
Article 213 of the Family Code), because sole parental authority is given only to the mother, unless she is shown to be unfit or unsuitable (Article 176 of
the Family Code). Thus, since the issue in this case is the application of the exception to the tender-age presumption under the second paragraph of
Article 213 of the Family Code, and not the option given to the child under the first paragraph to choose which parent to live with, petitioners' reliance
on Pablo-Gualberto is grossly misplaced.

In addition, it ought to be pointed out that the second paragraph of Article 213 of the Family Code, which was the basis of the CA's directive to remand
the case, does not even distinguish between legitimate and illegitimate children – and hence, does not factor in whether or not the parents are married –
in declaring that "[n]o child under seven [(7)] years of age shall be separated from the mother unless the court finds compelling reasons to order
otherwise." "Ubi lex non distinguit nec nos distinguere debemos. When the law makes no distinction, we (this Court) also ought not to recognize any
distinction."66 As such, petitioners' theory that Article 213 of the Family Code is herein inapplicable – and thus, negates the need for the ordered remand
– is not only premised on an erroneous reading of jurisprudence, but is also one that is fundamentally off-tangent with the law itself.

III.

The Court cannot also subscribe to petitioners' contention that even if there are compelling reasons to separate Queenie from her mother, Renalyn,
pursuant to the second paragraph of Article 213 of the Family Code, Ricky James would still not acquire custody over their daughter because there is
no provision of law granting custody rights to an illegitimate father.67

In the event that Renalyn is found unfit or unsuitable to care for her daughter, Article 214 of the Family Code mandates that substitute parental
authority shall be exercised by the surviving grandparent. However, the same Code further provides in Article 216 that "[i]n default of parents or
judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated:"

  Article 216. x x x
(1)
The surviving grandparent as provided in Art. 214;

(2)
The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3)
The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.
The same order of preference with respect to substitute parental authority is reiterated in Section 13 of A.M. No. 03-04-04-SC, the "Rule on Custody of
Minors and Writ of Habeas Corpus in Relation to Custody of Minors," to wit:

Section 13. Provisional order awarding custody. – After an answer has been filed or after expiration of the period to file it, the court
may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be
observed in the award of custody:

(a) Both parents jointly;

(b) Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of
sufficient discernment, unless the parent chosen is unfit;

(c) The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of
sufficient discernment, unless the grandparent chosen is unfit or disqualified;

(d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;

(e) The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or

(f) Any other person or institution the court may deem suitable to provide proper care and guidance for the minor.

It was not disputed that Ricky James was in actual physical custody of Queenie when Renalyn left for Manila to pursue her studies until the instant
controversy took place. As such, Ricky James had already assumed obligations and enjoyed privileges of a custodial character, giving him a cause of
action to file a case of habeas corpus to regain custody of Queenie as her actual custodian.

Indeed, it may be argued that Article 176 of the Family Code has effectively disqualified the father of an illegitimate child from exercising substitute
parental authority under Article 216 even if he were the actual custodian of the child under the premise that no one is allowed to do indirectly what he is
prohibited to do directly. However, the Court cannot adopt a rigid view, without running afoul to the overarching consideration in custody cases, which is
the best interest of the minor. Even way back, Article 363 of the Civil Code provides that in all questions relating to the care, custody, education and
property of the children, the latter's welfare is paramount.68 Under present rules, A.M. No. 03-04-04-SC explicitly states that "[i]n awarding custody, the
court shall consider the best interests of the minor and shall give paramount consideration to [her] material and moral welfare. The best interests of the
minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor
encouraging to [her] physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the
growth and development of the minor."69

In light of the foregoing, the Court finds that Queenie's best interest demands that a proper trial be conducted to determine if she had, indeed, been
neglected and abandoned by her mother, rendering the latter unfit to exercise parental authority over her, and in the event that Renalyn is found
unsuitable, whether it is in Queenie's best interest that she be in the custody of her father rather than her grandparents upon whom the law accords a
far superior right to exercise substitute parental authority. In the case of Bagtas v. Santos,70 which was a tug-of-war between the maternal grandparents
of the illegitimate minor child and the actual custodians of the latter, the Court faulted the trial court for hastily dismissing the petition for habeas
corpus and awarding the custody of the minor to the grandparents without conducting any trial. The import of such decision is that the preference
accorded by Article 216 of the Family Code does not automatically attach to the grandparents, and is conditioned upon the determination of their fitness
to take care of their grandchild. In ruling as it did, the Court ratiocinated that the child's welfare being the most important consideration, it is not bound
by any legal right of a person over the child. Reiterating its pronouncement in the early case of Sombong v. CA,71 the Court held that:

[I]n passing on the writ in a child custody case, the court deals with a matter of an equitable nature. Not bound by any mere legal
right of parent or guardian, the court gives his or her claim to the custody of the child due weight as a claim founded on human
nature and considered generally equitable and just Therefore, these cases are decided, not on the legal right of the petitioner to be
relieved from unlawful imprisonment or detention, as in the case of adults, but on the court's view of the best interests of those
whose welfare requires that they be in custody of one person or another. Hence, the court is not bound to deliver a child into the
custody of any claimant or of any person, but should, in the consideration of the facts, leave it in such custody as its welfare at the
time appears to require. In short, the child's welfare is the supreme consideration.

Considering that the child's welfare is an all-important factor in custody cases, the Child and Youth Welfare Code unequivocally
provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount
consideration. In the same vein, the Family Code authorizes the courts to, if the welfare of the child so demands, deprive the
parents concerned of parental authority over the child or adopt such measures as may be proper under the circumstances.72

The Court cannot close its eyes to the sad reality that not all fathers, especially those who have sired children out of wedlock, have risen to the full
height of a parent's responsibility towards his offspring. Yet, here is a father of an illegitimate child who is very much willing to take on the whole gamut
of parenting. He, thus, deserves, at the very least, to be given his day in court to prove that he is entitled to regain custody of his daughter. As such, the
CA's order to remand the case is proper.

IV.

While the appellate court correctly remanded the case for trial, the Court, however, holds that it erred in granting Ricky James temporary custody for a
limited period of twenty-four (24) consecutive hours once every month, in addition to visitation rights, invoking "humane and practical
considerations,"73 which were based solely on Ricky James' allegations.

It should be stressed that Section 15 of A.M. No. 03-04-04-SC provides for temporary visitation rights, not temporary custody, as follows:

Section 15. Temporary visitation rights. – The court shall provide in its order awarding provisional custody appropriate visitation
rights to the non-custodial parent or parents, unless the court finds said parent or parents unfit or disqualified.

The temporary custodian shall give the court and non-custodial parent or parents at least five days' notice of any plan to change the
residence of the minor or take him out of his residence for more than three days provided it does not prejudice the visitation rights
of the non-custodial parent or parents.

It is only after trial, when the court renders its judgment awarding the custody of the minor to the proper party, that the court may likewise issue "any
order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody," pursuant
to Section 18 of A.M. No. 03-04-04-SC, to wit:

Section 18. Judgment. – After trial, the court shall render judgment awarding the custody of the minor to the proper party
considering the best interests of the minor.

If it appears that both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or
maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or to
 commit him to any suitable home for children.

In its judgment, the court may order either or both parents to give an amount necessary for the support, maintenance and education
of the minor, irrespective of who may be its custodian. In determining the amount of support, the court may consider the following
factors: (1) the financial resources of the custodial and non-custodial parent and those of the minor; (2) the physical and emotional
health, special needs, and aptitude of the minor; (3) the standard of living the minor has been accustomed to; and (4) the non-
monetary contributions that the parents would make toward the care and well-being of the minor.

The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and
custody of the minor to visit or have temporary custody. (Emphasis supplied)

By granting temporary albeit limited custody ahead of trial, the appellate court overturned the tender-age presumption with nothing but Ricky James'
bare allegations, to which the Court cannot give its imprimatur. As earlier intimated, the issue surrounding Renalyn's fitness as a mother must be
properly threshed out in the trial court before she can be denied custody, even for the briefest of periods, over Queenie.

In view of the disposition in Silva and Briones and the rules quoted above, the Court can only uphold Ricky James' visitation rights, which shall be
limited to two (2) days per week, without prejudice to Renalyn allowing him additional days. However, consistent with the aforesaid cases, as well as the
more recent case of Grande v. Antonio,74 Ricky James may take Queenie out only upon the written consent of Renalyn. Contrary to the posturing75 of
the appellate court, the requirement for the consent of the mother is consistent with the regime of sole maternal custody under the second paragraph of
Article 213 of the Family Code with respect to children under seven (7) years of age, which may be overcome only by compelling evidence of the
mother's unfitness.76 Until and unless Ricky James is able to substantiate his allegations, he can only claim visitation rights over his daughter.

WHEREFORE, the petition is PARTLY GRANTED. The Decision dated January 12, 2017 and the Omnibus Resolution dated October 3, 2017 of the
Court of Appeals in CA-G.R. SP No. 144406 are hereby AFFIRMED with the MODIFICATION deleting the grant of limited and temporary custody for
lack of legal and factual basis. The grant of visitation rights of two (2) days per week shall be maintained. Respondent Ricky James Relucio may take
his daughter, Queenie Angel M. Relucio, out but only with the written consent of petitioner Renalyn A. Masbate in accordance with this Decision.

The Regional Trial Court of Legazpi City, Albay, Branch 8 is DIRECTED to immediately proceed with hearing Special Proceeding No. FC-15-239 upon
notice of this Decision.

SO ORDERED.