Grace Grande vs.

Patricio Antonio

FACTS:
Petitioner Grace Grande and Respondent Patricio Antonio
lived together as husband and wife, although Respondent was at
that time married to someone else. So, out of this illicit
relationship, two (2) sons were born – Andre Lewis(February 8,
1998) and Jerard Patrick(October 13, 1999). The children were not
expressly recognized by Respondent Antonio as his own in their
records of birth.
However, Petitioner and Respondent’s relationship turned
sour. Petitioner Grande left for the United States with her two (2)
children in May 2007.
This prompted Respondent Antonio to file a Petition for
Judicial Approval of Recognition with prater to take Parental
Authority, Custody and Correction/Change of Surname of Minors in
RTC of Aparri, Cagayan.
RTC then rendered a Decision in favor of Respondent Antonio,
stating that the evidence is overwhelming that the best interest of
the children can be prompted if they are under the sole custody
and parental authority of Respondent Antonio.
Aggrieved, Petitioner Grande moved for reconsideration.
However, it was denied for being pro forma and for lack of merit.
Grande then filed an appeal with the CA saying that the RTC
committed grave error in ruling that which is contrary to the law
and jurisprudence, which provides that the grant of sole custody to
the mother over her illegitimate children.
The CA modified the Decision of the RTC. It ordered
Respondent Antonio to deliver the minor children to the custody of
their mother and the Court awarded to Petitioner Grande the full
and sole custody of the minor children.
 Also, the CA under its Decision, that Respondent shall have
visitorial rights at least twice a week, and may only take the
children upon the written consent of Petitioner.
Not satisfied with the CA decision, Petitioner Grande
interposed a partial motion for reconsideration, particularly on the
Ruling of the change of the minor’s surname to Antonio. The CA
however, denied her motion.
Thus, Petitioner filed the Petition for Review on Certiorari
under Rule 45 to the SC.
She insists that Article 176 of the Family Code as amended by
RA 9255, it may not be invoked by a father to compel the use by
his illegitimate children of his surname without the consent of their
mother.

ISSUE:
Whether a father has the right to compel the use of his
surname by his illegitimate children upon his recognition by
filiation.

RULING:
No, the petition of Grande is impressed with merit. The
Petition is PARTIALLY GRANTED.
It is clear from Article 176 of the New Civil Code that the
general rule is that an illegitimate child shall use the surname of
his or her mother.
The exception as provided by RA 9255, is in case there was
an expressed recognition of his or her filiation by the father through
a 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 situation, the illegitimate child may
use the surname of the father.
Herein, Respondent Antonio have established filiation over his
children through public document acknowledged before a notary
public.
Now, comes the matter of the change of surname of the
illegitimate children.
Article 176 of the Family Code as amended by RA 9255 does
not provide for this.
Article 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, as herein Respondent, or the mother, or the herein
Petitioner, who is granted by law the right to dictate the surname
of their illegitimate children.
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.
Article 176, as amended, is free from ambiguity. The use of
the word “may” shows that an acknowledged child is under no
compulsion to use the surname of his illegitimate father. It gives
discretion upon the illegitimate children.
On the other hand, pursuant to RA 9255, the Acknowledged
child shall use the surname of the father. Nonetheless, the basic
rule is that an administrative issuance cannot amend a legislative
act. The implementing rules and regulations of a law cannot extend
the law or expand the coverage. Thus, if a discrepancy occurs
between the basic law and an implementing rule or regulation, it is
the former the prevails, because the law cannot be broadened by
a mere administrative issuance – an administrative agency
certainly cannot amend an act of Congress.
Thus, the Court declared as void the specific 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.
Therefore, 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 Article 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.
There were letters that were submitted to the Court, by the
minor children, whose at the time of this case were aged 13 and
15 they declare their opposition to have their names changed to
Antonio. However, since these letters according to the Court were
not offered before and evaluated by the trial court, they do not
provide any evidentiary weight to sway the Court to rule for or
against the Petitioner. A trial is necessary herein. And as part of
the modified decision of the SC, the case is REMANDED to the RTC
of Aparri, Cagayan for the sole purpose of determining the surname
to be chosen by the children Jerard Patrick and Andre Lewis.