Part 2 - LEGAL OPINION:
Below is an exchange between you and a hypothetical client. Based on the information given, write
(1) a brief legal opinion/advice specifying the relevant facts of the case, the legal problems raised by your hypothetical client, your assessment of the issues involved, and the possible courses of action that may be taken under the law; and
(2) one legal document that may be used in connection with your recommended course of action.
Melanie P. Gamboa seeks your advice on the possibility of changing the surname
of her niece, 16-year old Paula P. Cortes, who was placed under her care by her sister,
Maricel Perez, who is currently in the U.S. working as a nurse. The following is your interview with Melanie P. Gamboa:
Q: Melanie, tell me something about yourself first, your personal circumstances.
A: I am Melanie Perez Gamboa, 40 yrs old, married with an 8-year old son. I live at 35 Craig St., Sampaloc, Manila. I work as the assistant manager for a bank.
Q: You said that your sister wants to change the surname of her daughter. What is her name? Where is your sister now?
A: My sister is Maricel Abrogar Perez. She is now in the United States, working as a nurse, so she asked me to seek legal assistance for her.
Q: How old is she?
A: She is 35 yrs old.
Q: How long has she worked in the US?
A: She has been working there for ten years already, since 2000.
Q: Is she married?
A: No, she is not.
Q: But she has a daughter?
A: Yes, her daughter is my niece, Paula Perez Cortes, and she is now 16 years old.
Q: When was Paula born?
A: November 15, 1994.
Q: Who is Paula’s father?
A: Her father is William Cortes, Maricel’s boyfriend back in college. He got her
pregnant while they were in their third year of college.
Q: Is Paula living with you now?
A: Yes, ever since Maricel went to the US in 2000. I have been her guardian since then.
Q: What happened when Maricel became pregnant?
A: William Cortes told her they can’t get married yet because they were still young and had to finish college first. But he said he will give support. He did, while Maricel was pregnant and after she gave birth. William paid the bills for Maricel’s check-up while she was pregnant. He also paid for more than half of the hospitalization expenses when Maricel gave birth. He paid for the baby’s medical check-ups and vaccination. Sometimes, he would give additional money for baby formula and diapers or he would buy them himself. He would also visit Maricel and the baby almost every day. He was even present at the christening.
Q: During this time, was Maricel still in college?
A: While she was pregnant, yes, but after she gave birth, she took a leave of absence for one semester. She could not simultaneously concentrate on her studies while taking care of Paula.
Q: How about William?
A: He continued his studies. He did not take any leave of absence.
Q: So he gave support while Maricel was pregnant and after she gave birth?
A: Yes, but after Paula’s first birthday, William returned to his province in
Zamboanga. By then, William had already graduated from his Management course, and he said that he was looking into expanding his uncle’s business in the province. He said he will return to Manila, but he never did. Since then, he has not sent anything for Paula’s support.
Q: So from the time he left for Zamboanga, he never gave support?
A: Well, for around a year from the time he left for Zamboanga, he still managed to send some money for Paula but it was not consistent. He even sent Paula a letter and gift via LBC for her second birthday, saying that he was sorry that he was not there for her birthday. That was the last time we heard from him.
Q: Do you still have any communication with him?
A: No more. After he went to Zamboanga, he would call around once a week, then later once or twice a month, then about a year from the time he left, we never heard from him anymore. We tried calling him on the phone, but the people we talked to would tell us that he was not there. We also sent letters, but we never got any replies. We’re no longer sure if he has the same address.
Q: How did Maricel take care of Paula without William’s support?
A: My parents and I helped Maricel take care of Paula, especially since she was still studying. We pitched in. After she graduated, she worked for a while in a private hospital and was later able to find work in the US as a nurse.
Q: So basically, Paula grew up never knowing her father?
A: Yes.
Q: But she carries his surname?
A: Yes. It is in her birth certificate. William is indicated as the father.
Q: Who supplied the information in the birth certificate?
A: It was Maricel, but William was also there. He was there when Maricel gave birth, and when hospital personnel came to ask for information for Paula’s birth registration. William was at the hospital everyday until Maricel and Paula were discharged.
Q: So in all of Paula’s official records, she carries William’s surname and William is identified as her father?
A: Yes. All her school records state that.
Q: What does Maricel now want to do with Paula’s surname?
A: She wants Paula’s surname to be changed from Cortes to Perez because she intends to petition Paula to the US and the change in name would facilitate the process. Paula would be easily identified as her daughter. Also, Maricel does not want Paula to have anything to do with William anymore since he abandoned his own child.
Q: How does Paula feel about the change of name?
A: She is okay with it, because she never knew William. Even to this day, she still gets asked why she has a different surname from that of her mother and it embarrasses her to tell the reason why. This is also one of the reasons why Maricel wants to change Paula’s surname.
Laws and jurisprudence that may apply
1. Article 165 of the Family Code
Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code.
2. Article 176 of the Family Code
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 he 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.
3. Article 194 of the Family Code
Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or train for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.
4. Article 195 of the Family Code
Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter;
(5) Legitimate brothers and sisters, whether of the full or half-blood.
5. Article 203 of the Family Code
The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand.
Support pendent lite may be claimed in accordance with the Rules of Court.
Payment shall be made within the first five days of each corresponding month. When the recipient dies, his heirs shall not be obliged to return what he has received in advance.
6. Rule 103 (of the Rules of Court) – Change of Name
Sec. 1. Venue.—A person desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in the City of Manila, to the Juvenile and Domestic Relations Court. Sec. 2. Contents of petition.—A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province wher the petition is filed for at least three (3) years prior to the date of such filing;
(b) The cause for which the change of the name of the petitioner’s name is sought;
(c) The name asked for.
Sec. 3. Order for hearing.—If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) consecutive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice.
Sec. 4. Hearing.—Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.
Sec. 5. Judgment.—Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition.
Sec. 6. Service of judgment.—Judgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the ort issuing the same is situated, who shall forthwith enter the same in the civil register.
7. In Re: Petition for Change of Name and/or Correction of Entry in the Civil Registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005, 454 SCRA 155 Before a person can be authorized to change his name given him either in his certificate of birth or civil registry, he must show proper or reasonable cause, or any compelling reason which may justify such change. The touchstone for the grant of a change of name is that there be proper and reasonable cause for which the change is sought. To justify a request for change of name, petitioner must show not only some proper or compelling reason therefore but also that he will be prejudiced by the use of his true and official name. Among the grounds for change of name which have been held valid are: (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence, as in legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest.
8. Concepcion v. Court of Appeals, G.R. No. 123450, August 31, 2005, 468 SCRA 438
Jurisprudence teaches that a birth certificate to be considered as validating proof of paternity and as an instrument of recognition, must be signed by the father and mother jointly or by the mother alone if the father refuses.
9. Concepcion v. Court of Appeals, G.R. No. 123450, August 31, 2005, 468 SCRA
438
The law, reason and common sense dictate that a legitimate status is more favorable to the child. In the eyes of the law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the surnames of both his father and mother, full support and full inheritance. On the other hand, an illegitimate child is bound to use the surname and be under the parental authority only of his mother. He can claim support only from a more limited group and his legitime is only half of that of his legitimate counterpart. Moreover (without unwittingly exacerbating the discrimination against im), in the eyes of society, a 'bastard is usually regarded as bearing a stigma or mark of dishonor.
10. Republic v. Capote, G.R. No. 157043, February 2, 2007, 514 SCRA 76
An illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’ surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother’s surname as his middle name and his father’s surname as his surname, reflecting his status as a legitimated child or an acknowledged child. 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.
11. Republic v. Capote, G.R. No. 157043, February 2, 2007, 514 SCRA 76
An illegitimate child never recognized by his father is entitled to change his name—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 US. This Court will not stand in the way of the reunification of mother and son.
12. Sy v. Court of Appeals, G.R. No. 124518, December 27, 2007, 541 SCRA 371
Support must be demanded and the right to it established before it becomes payable, for the right to support does not arise from the mere fact of relationship, even from the relationship of parents and children, but from imperative necessity without which it cannot be demanded, and the law presumes that such necessity does not exist unless support is demanded.
13. Dela Cruz v. Gracia, G.R. No. 177728, July 31, 2009, 594 SCRA 648
The Court sees it fit to adopt the following rules respecting the requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is made: 1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and 2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.
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