Concepcion vs CA

Concepcion vs. CA

GR No. 123450, August 31, 2005

FACTS:

Gerardo Concepcion, the petitioner, and Ma. Theresa Almonte, private respondent, were married in December 1989, and begotten a child named Jose Gerardo in December 1990.  The husband filed on December 1991, a petition to have his marriage annulled on the ground of bigamy since the wife married a certain Mario Gopiao sometime in December 1980, whom according to the husband was still alive and living in Loyola Heights, QC.  Trial court ruled that the son was an illegitimate child and the custody was awarded to the wife while Gerardo was granted visitation rights.  Theresa argued that there was nothing in the law granting “visitation rights in favor of the putative father of an illegitimate child”.  She further wanted to have the surname of the son changed from “Concepcion to Almonte”, her maiden name, since an illegitimate child should use his mother’s surname.  After the requested oral argument, trial court reversed its ruling and held the son to be not the son of Gerardo but of Mario.  Hence, the child was a legitimate child of Theresa and Mario.           

HELD:

Considering that Theresa’s marriage with Gerardo was void ab initio, the latter never became the former’s husband and never acquired any right to impugn the legitimacy of the child.  Theresa’s contention was to have his son be declared as not the legitimate child of her and Mario but her illegitimate child with Gerardo.  In this case, the mother has no right to disavow a child because maternity is never uncertain.  Hence, she is not permitted by law to question the son’s legitimacy.  Under Article 167 of the Family Code, “the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress”.  Having the best interest of the child in mind, the presumption of his legitimacy was upheld by the Court.  As a legitimate child, the son shall have the right to bear the surnames of Mario and Theresa, in conformity with the provisions of Civil Code on surnames.  Gerardo cannot then impose his surname to be used by the child, since in the eyes of the law, the child is not related to him in any way.