Concepcion v CA & Almonte

GR 123450, August 31, 2005

Corona, J;

FACTS:

Gerardo B. Concepcion and Ma. Theresa Almonte is a married couple. They were married on
December 29, 1989, and after a year on December 8 1990 Ma. Theresa gave birth to Jose Gerardo;
however on December 19, 1991 Gerardo filed a petition for his marriage to Ma. Theresa to be annulled
on the ground of bigamy, Ma. Theresa admitted and was revealed to have a subsisting marriage with
one Mario Gopiao which was contracted on December 10, 1980, the annulment declared Jose Gerardo
an illegitimate child, the child’s custody was awarded to Ma. Theresa, Gerardo was granted visitation
rights.

Ma. Theresa Moved for reconsideration on the decision of Gerardo having visitation rights,
arguing that there is no law granting visitation right to a putative father, she maintained that Jose
Gerardo’s surname should be changed from Concepcion to Almonte, stating the rule that an illegitimate
child shall use the mother’s surname; Gerardo opposed the motion, insisting on his visitation rights, and
the retention of his surname on the child; Ma. Theresa’s motion was denied by the trial court.

Ma. Theresa elevated the case to the Court of Appeals, emphasizing the same on visitation
rights and the use of surname, the appellate court denied the petition and affirmed the previous
decision by the trial court; Ma. Theresa moved for reconsideration once and filed a motion to set the
case for oral arguments.

It was established that Ma. Theresa was legally married to Mario Gopiao during the birth of Jose
Gerardo in December 8, 1990, making him the legitimate child of the marriage and not the illegitimate
child of the non-existent and void marriage with Gerardo; and that her marriage to Gerardo was void ab
initio, Gerardo himself established these facts; giving merit to Ma. Theresa’s argument that Gerardo
cannot claim custody or visitation rights and cannot impose his name upon the child, it would have no
legal basis, and would tend to destroy the previous subsisting marriage between Ma. Theresa and Mario
Gopiao; Gerardo moved for reconsideration but was denied.

ISSUES:

1. (Family Code) Whether or not Gerardo can claim custody or visitation over the child (Jose Gerardo)?

2. (Family Code) Whether or not Gerardo can impose his surname upon the child (Jose Gerardo)?

RULING:

1. No. The marriage between Gerardo and Ma. Theresa was void from the beginning, and Article 49 of
the Family Code grants visitation right to a parent who is deprived of custody of his child; therefore,
Gerardo does not have any legal demandable right to visit Jose Gerardo as he has no direct relation to
him.

2. No. A person’s surname identifies to which family a child belongs to and is passed on from parent to
child, Gerardo cannot impose his surname because in the eyes of the law Gerardo is not related to him
in any way.

DISPOSITION:

In its decision dated August 31, 2005 the petition for reconsideration by Gerardo B. Concepcion is
denied; the previous decisions dated September 14, 1995 and January 10, 1996 are hereby affirmed.

QUICK DIGEST:

In imposing ones surname and request for visitation rights are only granted to those parents
who are in direct relation to the descendant in a closer degree, but in this case, a marriage that was void
from the beginning means they had no relation in the first place; so why would the law grant that
person custody or visitation rights seeing as he or she is unrelated to the child, and as such why would
the child be imposed of a stranger’s surname as the child does not belong to his or her family, these
belong to a parent and child not to acquaintances or strangers.