G.R. No. 123450 - GERARDO B. CONCEPCION, VS. COURT OF APPEALS AND MA. THERESA ALMONTE.

Ruling

WHEREFORE, the respondent's Motion for Reconsideration has to be, as it is hereby DENIED. [12] Ma. Theresa elevated the case to the Court of Appeals, assigning as error the ruling of the trial court granting visitation rights to Gerardo. She likewise opposed the continued use of Gerardo's surname (Concepcion) despite the fact that Jose Gerardo had already been declared illegitimate and should therefore use her surname (Almonte). The appellate court denied the petition and affirmed in toto the decision of the trial court. [13] On the issue raised by Ma. Theresa that there was nothing in the law that granted a putative father visitation rights over his illegitimate child, the appellate court affirmed the "best interest of the child" policy invoked by the court a quo . It ruled that "[a]t bottom, it (was) the child's welfare and not the convenience of the parents which (was) the primary consideration in granting visitation rights a few hours once a week." [14] The appellate court likewise held that an illegitimate child cannot use the mother's surname motu proprio . The child, represented by the mother, should file a separate proceeding for a change of name under Rule 103 of the Rules of Court to effect the correction in the civil registry. [15] Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of the appellate court. She also filed a motion to set the case for oral arguments so that she could better ventilate the issues involved in the controversy. After hearing the oral arguments of the respective counsels of the parties, the appellate court resolved the motion for reconsideration. It reversed its earlier ruling and held that Jose Gerardo was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage: It is, therefore, undeniable - established by the evidence in this case - that the appellant [Ma. Theresa] was married to Mario Gopiao, and that she had never entered into a lawful marriage with the appellee [Gerardo] since the so-called "marriage" with the latter was void ab initio . It was [Gerardo] himself who had established these facts. In other words, [Ma. Theresa] was legitimately married to Mario Gopiao when the child Jose Gerardo was born on December 8, 1990. Therefore, the child Jose Gerardo - under the law - is the legitimate child of the legal and subsisting marriage between [Ma. Theresa] and Mario Gopiao; he cannot be deemed to be the illegitimate child of the void and non-existent "marriage" between [Ma. Theresa] and [Gerardo], but is said by the law to be the child of the legitimate and existing marriage between [Ma. Theresa] and Mario Gopiao (Art. 164, Family Code). Consequently, [she] is right in firmly saying that [Gerardo] can claim neither custody nor visitorial rights over the child Jose Gerardo. Further, [Gerardo] cannot impose his name upon the child. Not only is it without legal basis (even supposing the child to be his illegitimate child [Art. 146, The Family Code]); it would tend