(Question A.3, Civil Law, 2019 Bar Exam)
Mr. Reyes is legally married to Mrs. Reyes. During the subsistence of their marriage, Mr. Reyes cohabited with another woman, Ms. Cruz. Out of Mr. Reyes and Ms. Cruz’s illicit relationship, a child named C was born. In C’s birth certificate, “Cruz” appears as the child’s surname, although Mr. Reyes expressly acknowledged C as his child.
In 2018, Mr. Reyes and Ms. Cruz ended their relationship. Mr. Reyes thereafter lodged a petition in court for parental custody and change or correction of C’s surname in the child’s birth certificate from “Cruz” to “Reyes.” At that time, C was only ten (10) years old.
(a) Should Mr. Reyes be granted custody of C? Explain. (2.5%)
(b) Can Mr. Reyes validly compel the change or correction of C’s surname from “Cruz” to “Reyes”? Explain. (2.5%)
(a) No. Answer
Under the jurisprudence, a parent may only be divested of his/her parental authority if they are judicially declared to be unfit to take charge of the child by reason of moral depravity, habitual drunkenness or poverty. Rule
In the case at bar, there is no showing that Ms. Cruz is unfit to by reason of moral depravity, habitual drunkenness or poverty. Apply
Thus, Mr. Reyes should not be granted custody. Conclusion
(b) No. Answer
Under the law, by default, the illegitimate children shall use the surname and shall be under the parental authority of their mother. However, the illegitimate child has the option to use the surname of their father if their filiation has been 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. Rule
In the case at bar, the illegitimate child has not exercised such right. Instead, it is Mr. Reyes who is attempting to compel the change or correction of the illegitimate child’s surname. This is incorrect. Apply
Thus, Mr. Reyes cannot compel the change or correction of C’s surname from “Cruz” to “Reyes”. Conclusion
(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)
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