Tag Archive: Illegitimate Children


9 Sept 12

Now here is a valid question that newly-annulled parents often ask us.  So we endeavored to gather the facts to try and answer this rather sad question (one of the saddest, if not the saddest). Our research led us to www.smartparenting.com.ph where the same question was raised and the answer was provided by one Atty. Nikki Jimeno.  We just wish to acknowledge and give them credit for the insightful article they published on their website.

Read on:

If the annulled couple’s marriage was proven to be void from the beginning, then their children are generally considered illegitimate.  What this actually means is that in the annulment process, it was proven that the marriage that the ex-couple had was essentially fake – and it is as if they were never married at all.  Therefore, their children are essentially born out of wedlock – illegitimate.

According to the Family Code of the Philippines, the following marriages are considered void from the beginning:

  • Contracted by any party below 18 even with the consent of parents or guardians;
  • solemnized by any person not legally authorized to perform a marriage unless either or both parties believed in good faith that the solemnizing officer had the legal authority to do so;
  • solemnized without a marriage license except those expressly exempted by law to secure a marriage license;
  • bigamous or polygamous marriages;
  • contracted through mistake of one of the contracting parties as to the identity of the other;
  • incestuous marriages as defined in Article 37 of the FC; and
  • void marriages by reason of public policy (i.e. between step-parents and step-children, between adopting parent and adopted child).

If, however, the marriage was valid but was later declared void due to the psychological incapacity of one or both of the spouses under Article 36 of the Family Code, the children are still considered legitimate.  This is because their parents’ marriage was legitimate, duly registered and acknowledged by the state and did not violate any provision in the Family Code.

Does my child need to drop his father’s last name after my annulment?

If you want your son to continue using his father’s last name, that is alright and permitted by law.  Illegitimate children are permitted to use their father’s last name as long as the biological father acknowledged his paternity over the child.  Only his birthright was affected by the annulment.

 

I want my child to be a legitimate child.

An unwed mother can adopt her own child and make his status legitimate, according to RA 8552 of the Domestic Adoption Act of 1998.  You need to seek the father’s consent and he must be willing to lose his parental authority over the child.  Essentially, your child will have to drop his biological father’s last name and use your maiden last name instead.

 

Source: www.smartparenting.com.ph

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03-06

Of all the questions and clarifications we regularly receive through this blog, changing the last name of an illegitimate child tops our list.  These questions often come from single moms who either:

  1. Gave their maiden last name to their illegitimate child and now wants the child to use the last name of the biological father;
  2. Gave their maiden last name to their illegitimate child and now wants the child to use the last name of the adoptive father;
  3. Gave the biological father’s last name to the illegitimate child and now wants the father’s last name dropped from the child’s name and replace it with her last name.

Today’s blog shall focus on these three circumstances and how the processes of achieving the desired results differ from each other.  If you are about to become a single mom, this article may help you in deciding whose last name your child should carry.

What does the Family Code say about illegitimate children?

According to Executive Order No. 209, otherwise known as the Family Code of the Philippines, illegitimate children are children conceived and born outside a valid marriage (Art. 164).  Under the same E.O., illegitimate children shall use the surname and shall be under the parental authority of their mother. (Art. 176).

In 2004 however, Article 176 was amended by virtue of R.A. 9255.  The new law allows illegitimate children to use the surname of their biological father, provided that the father acknowledges his paternity over the child.

How does this new law affect the three cases of changing the last name of illegitimate children?

Before R.A. 9255 took effect, an illegitimate child shall carry its mother’s last name (while the middle name field is left blank) until the biological parents marry and the child is subsequently legitimated.  With the amendment of Article 176 (of R.A. 209), single mothers (and fathers!) now have the option to have the child carry the biological father’s last name in their birth certificates.

a. If an illegitimate child, carrying his mother’s maiden last name, wants to start using his father’s last name, he needs to execute a document, private or public, where he is recognized by his father as his child.  Such documents may be:

  • The affidavit found at the back of the Certificate of Live Birth (COLB); or
  • A separate PUBLIC document executed by the father, expressly recognizing the child as his.  The document should be handwritten and signed by the father; or
  • A separate PRIVATE handwritten instrument such as the Affidavit to Use the Surname of the Father (AUSF).  Note that the AUSF is used when the birth has been registered under the mother’s surname, with or without the father’s recognition.

b. If an illegitimate child, carrying his mother’s maiden last name, wants to use the last name of his adoptive father.

  • This shall follow the process of legal adoption.

c. If the single mother wants to drop the last name of the illegitimate child’s biological father from the child’s birth certificate.

  • This is a relatively new scenario that may have surfaced after R.A. 9255 took effect.  When unmarried parents decide to let the child use the father’s last name and then separate later on, the single mother may soon decide that her child’s birth certificate is better off without her ex-partner’s name on it.
  • This case needs to undergo court hearing and the results are entirely dependent on how the proceedings will go.  This may also entail more costs, time, and effort before a favorable result is achieved.

While the said amendment gives parents the liberty to let their illegitimate child carry the biological father’s name (or any other man’s name for that matter, as long as he is willing to let his last name be used by the child), it also opens opportunities for problems on the child’s birth certificate when the mother and the father do not end up marrying each other.  Keep in mind that after a child’s birth certificate has been duly registered at the LCR and a copy has been released to the PSA, any changes, especially those affecting the child’s last name, may prove to be more complicated than we would care to admit.

What is a single parent’s best recourse in order to avoid problems on the child’s last name?

If we are to base our answer on the above scenarios, then the best option would be for a single mother to simply let her child use her maiden last name, sans the middle name.  This leaves enough room for changes later on, minus the hassle of a court order.

a. If the child is using his mother’s maiden name, he can easily adopt his biological father’s last name in case his parents marry later on;

b. If the child’s mother marries a different man, the stepfather may simply adopt the child and give the child the legal right to carry his name.  Without adoption, the child is free to carry his mother’s maiden last name.

This is merely a personal opinion based solely on the numerous cases of dropping the last name of an illegitimate child due to unforeseen circumstances between his unmarried parents.  You are free to choose the option you deem best and applicable to your situation.  As an additional option, consider it best to consult a lawyer who may be able to provide you with professional advise on your situation.

Reference: http://www.psa.gov.ph

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Manila City Hall_5

An illegitimate child, using his mother’s last name as his family name, may be permitted to use his father’s last name by virtue of an Affidavit to Use the Surname of the Father or AUSF.  This includes children born whose births are yet to be registered at the LCR and were born on or before August 3, 1988.

Here are the steps to be taken when filing an AUSF at the Manila City Hall.  Kindly take note that fees and schedules of interview may vary depending on the municipality; the following were lifted from the website of the Manila City Hall and are applicable to parties transacting there.

What You Need To Bring:

(a). Latest certified copy of birth certificate of the child.

(b). Valid ID of Father and Mother (original and photocopy).

(c). Community Tax Certificate (Cedula) of Father.

(d). Original and photocopy of child’s baptismal certificate.

(e). Certified true copy and original school records showing the names of the parents.

(f). If child’s mother is deceased, submit certified copy of Death Certificate (latest copy).

(g). If child is of legal age, submit a valid ID.

Note: Both parents must accompany the child (even if child is of legal age) during the interview.

Additional requirements for the father in case he does not expressly recognize filiation with the child.  This is applicable in cases when the father could not be present during the filing of the AUSF (residing abroad, deceased, physically incapable):

(a). Employment records

(b). SSS/GSIS records

(c). Insurance

(d). Certificate of Membership in any organization

(e). Statement of Assets and Liabilities

(f). Income Tax Return (ITR)

Submit all documents to the Manila City Hall.  Please note that all applications are subject for evaluation.

Interviews for RA 9255 are conducted every Monday only.  Below are the filing fees:

P420.00 (with Paternity)

P520.00 (without Paternity)

Source: http://manila.gov.ph/services/civil-registry/

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Single Mom

Illegitimate children are able to carry their father’s last name by virtue of an Affidavit of Acknowledgment and an Affidavit to Use the Surname of the Father (AUSF).  Should the parents decide to get married later on, the illegitimate children’s birth rights may also be changed from “illegitimate” to “legitimate” through the process of Legitimation Due to Subsequent Marriage (of parents).

In some cases though, the father exits the picture and the mother is left to take care of the children on her own.  This can go from bad to worse when the father ends up marrying a different woman, completely abandoning his responsibilities with his children from his previous relationship.

Such is the case of Patty, a single mother of 2 children, born 2 years apart.  She is a call center agent and is raising her kids with the help of her parents.  Her boyfriend, Alex, left her and their children before her youngest son was even one year old.  He said that he was leaving for the U.S. to work and promised to send financial support for the children’s needs and education.  A few months after he left, Alex told Patty that he needs to marry his high school classmate who is now a U.S. citizen in order for him to legally work in Florida.  “Marriage for convenience lang.”

Patty’s worst fears were confirmed when she received an email from Alex telling her that he and his wife will be migrating to New Zealand soon and he could no longer promise to send his regular support for their children.  A few months after that, Patty found out that Alex and his new wife were expecting their first child.  She was devastated.

Patty’s children carry Alex’s last name in all of their identifications, including their PSA birth certificates.  Now that Patty is left to raise both kids on her own, she would like for the children to drop their father’s last name and carry hers instead.  She would not allow for Alex to have the honor of giving his name to his children when he has now clearly abandoned them for his new family.

Question is, can Patty have Alex’s last name dropped from the children’s birth certificates?

Based on the Philippine Statistics Authority (PSA) website, www.psa.gov.ph, an illegitimate child has the right to carry his father’s last name for as long as the father duly acknowledged him by virtue of the following:

  • The father executed an Affidavit of Acknowledgement
  • The father presents a Private Handwritten Instrument (PHI)
  • The father acknowledged the child at the back of the birth certificate or in a separate public instrument.

With respect to any of the above conditions, the child’s birth certificate bears his father’s last name as his last name.  Although he is still considered “illegitimate” (since his parents were not married at the time of his birth), he is given the right to use his father’s last name.

Dropping or removing the father’s last name from the children’s birth certificate, even if their birth right is illegitimate, must go through a court order.  It is not considered a clerical error and therefore, changing the child’s last name cannot be done by simply filing a petition for clerical error.

Source: https://psa.gov.ph/civilregistration/problems-and-solutions/born-after-august-3-1988

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Legitimation

When a child is born out of wedlock, his or her birthright is marked as illegitimate.  The child carries the last name of his mother unless he is acknowledged by his father on paper or his parents decide to get married later on.  Should it be the latter, the child is able to carry the father’s last name by virtue of a legitimation process.  This means that the illegitimate child’s birthright shall be changed to legitimate without the need of a court order.

Such is the story of Dess, an illegitimate child whose parents got married before she turned 10 years old.  Her parents worked on her legitimation right after they got married so that Dess can rightfully carry her father’s last name.  However, when they requested for a copy of her PSA birth certificate to complete her college graduation document requirements, they found out that no changes on her last name, nor any annotations, were applied on her birth certificate. She was still marked as illegitimate and still bears her mother’s maiden last name as her last name.

What could have happened?

Dess and her parents already had a copy of her Certificate of Legitimacy.  This was the document they received from the LCR when they filed for her legitimation.  On their copy, there is an annotation that read:

Legitimated by subsequent marriage of parents (mother’s maiden name) and (father’s name) on (date of marriage) at (place of marriage) under Reg. No. XXXX-XXX.  Hence, the child should now use the name (name of child using father’s surname).

Dess has been using the name Odessa Castro Talajib – Talajib being her father’s last name – since she was 11 years old.

Dess’ parents should have submitted to the PSA the Certificate of Legitimacy that they got from the LCR when they filed for her legitimation.  This would have triggered PSA’s certification and updating of Dess’ records in PSA’s files.  In other cases, the LCR where the legitimation was applied for, may also submit the Certificate of Legitimacy on the client’s behalf.  You just need to make constant follow-ups to make sure that the documents are duly processed.

For our information, here is the list of requirements when filing the Certificate of Legitimacy at the PSA:

Legitimation by Subsequent Marriage

  1. Secure the following documents from the city / municipal Civil Registrar’s Office (C/MCR) where the birth of the child was recorded:
    • Affidavit of Paternity / Acknowledgement (Certified Photocopy)
    • Joint Affidavit of Legitimation
    • Certificate of Registration of Legal Instrument (Affidavit of Legitimation)
    • Certified True Copy of Birth Certificate with remarks/annotation based on the legitimation by subsequent marriage.
  2. Verify the original birth certificate at the National Statistics Office (NSO).  If negative result, secure it from the C/MCR Office where the child was originally registered (certified photocopy).
  3. Verify the marriage contract of parents at NSO.  If negative result, secure it from the C/MCR Office where the marriage was solemnized (certified true copy).

Source: https://psa.gov.ph/content/application-requirements

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No Middle Name

When an illegitimate child is born, it is likely that he will be given his mother’s last name as his last name.  In which case, the middle name field on his certificate of live birth will be left blank.

There are two possible scenarios to be observed when correcting or supplying a middle name on an illegitimate child’s birth certificate:

a. If the child is acknowledged by the father.

To supply the omitted middle name on the child PSA birth certificate, a supplemental report should be filed.  The supplemental report may be filed by the owner of the birth certificate (if of age), his spouse, children, his parents, siblings, grandparents, guardians, or any other person duly authorized by law or by the owner of the birth certificate.

If the owner was born in the Philippines, he needs to file the supplemental report at the LCR office where his birth was registered.  If born abroad, he needs to file this at the Philippine Consulate of the country where he was born.  In case he is already permanently residing in the Philippines, he needs to provide supporting documents which shall then be forwarded to the Department of Foreign Affairs.

b. If the child is not acknowledged by the father.

If the child’s biological father fails to acknowledge the child, the middle name shall not be supplied anymore and the child shall carry his mother’s maiden last name as his last name.

On the other hand, legitimate children should always have a middle name indicated on their birth certificates.  In case this entry is missing, a supplemental report, containing the reason why the child’s middle name was omitted, must be filed at the LCR where the child’s birth was registered.

Source: https://psa.gov.ph/civilregistration/problems-and-solutions/no-middle-name

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No BC_Illegitimate_No Mother

Alona is an illegitimate child, born to parents who were barely out of their teens.  Her mother gave her up for adoption when she was just a few days old, in exchange for a plane ticket from Manila to Iloilo.  She was never heard of from again.  Upon learning that his daughter was given to a complete stranger, Dexter (Alona’s father) requested for assistance from the barangay so he can take his daughter back.  After negotiating with the family who paid for Alona’s adoption, Dexter was finally able to take his daughter home and promised to do everything he can to raise her on his own.

Father and daughter sailed from Manila to Dumaguete and there, Alona grew up in her grandparents’ farm house while Dexter continued his studies in Cebu.

Alona is all grown up now and would like to apply for a passport so she can work abroad.  Her only problem is that she does not have a birth certificate and is clueless on how to get one.  Her father, Dexter, told her that she was born in Manila but since they have both migrated to Dumaguete, he is not sure if Alona’s birth can be registered in Dumaguete.

She has three problems:

  1. Alona does not have a birth certificate.
  2. She has not heard from her mother ever since she was born and in spite of several attempts to get in touch with her mother, all her efforts returned futile.
  3. She no longer lives in the city where she was born.

According to the Philippine Statistics Authority (PSA) website (www.psa.gov.ph) , cases such as this can be worked out by filing for an Out-of-town (because she no longer lives in the city where she was born), Delayed Reporting of Birth.

The requirements for delayed registration of birth are in this previous article we posted last month.  Once Alona has these documents on hand, she can present these to the civil registrar of the LCRO of Dumaguete who shall then forward the documents to the Manila City Hall for proper registration.

Since Alona is an illegitimate child and born on September 21, 1990, there is the issue on her last name and her parents’ acknowledgment of her birth.  Only her father is present, and essentially, willing to acknowledge her as his child.

According to the PSA, if the child’s birth certificate is not yet registered and the father acknowledges his paternity over the child, the child can use the father’s last name following the procedures for R.A. 9255.

Since Dexter wanted for Alona to use his last name on her birth certificate, they need to include these documents when filing for Alona’s registration of birth:

  1. Affidavit to Use Surname of Father (AUSF)
  2. Consent of the child, if 18 years old and over at the time of the filing of the document (this applies to Alona).
  3. Any two of the following documents showing clearly the paternity between the father and the child:
    • Employment records
    • SSS / GSIS records
    • Insurance
    • Certificate of membership in any organization
    • Statement of Assets and Liabilities
    • Income Tax Return (ITR)

Sources:

https://psa.gov.ph/civilregistration/technical-notes-vital-statistics

http://www.psa.gov.ph/civilregistration/problems-and-solutions/birth-certificate-not-yet-registered-and-father

http://www.census.gov.ph/civilregistration/republic-act-9255

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How to Change an Illegitimate Child's Last Name to Father's Last Name

Can illegitimate children use their father’s last name?  What are the policies regarding a father’s acknowledgment of his illegitimate child when the child was born on or after August 3, 1988?

Sandra was born when both her parents were just fresh out of college.  Her mom, Irene, still lived with her parents while her dad, Henry, stayed in the province to help in his family’s farm business.  They were discouraged by their respective families from getting married just because a baby is on its way.  They were given the freedom to think long and hard before making a final decision.

On October 25, 1988, Sandra was born.  The family code dictates that illegitimate children born on or after August 3 of that year shall use their mother’s maiden last name whether their father admitted his paternity over them or not.  Sandra grew up using her mother’s last name and have always known that she is an illegitimate child.  Henry, on the other hand, never failed to provide support for Sandra’s needs while growing up.  He was also present in all of the milestones of Sandra’s progress from infancy

In January 2004, a year before Sandra was due to graduate from high school, Henry was diagnosed with stage 4 cancer.  He only had a few months left to live.

Upon realizing this, Henry immediately contacted Irene and said that he would like to leave all of his properties to Sandra.  This will help secure her future even when he is no longer around.

The process would have been very simple except that Sandra’s birth certificate does not show Henry as her father – her last name is Paterno, Irene’s maiden last name.  In order for Henry to bestow his assets to his daughter, he needs to show proof that Sandra is his heir.

They wasted no time and consulted a lawyer who advised them that Henry can actually prove his paternity over Sandra by executing an Affidavit of Acknowledgment and an Affidavit to Use the Surname of the Father (AUSF).

Here’s what they needed to do:

a. Write an Affidavit of Acknowledgment and an Affidavit to Use the Surname of the Father (AUSF) and have both notarized.

b. Who shall file:

  • The child, if of age
  • Mother
  • Father
  • Guardian

c. Where to file:

  • Civil registry office where the birth of the child was registered.\
  • If born abroad, file with the Consul of the Philippine Embassy where the child is born.
  • In cases of children born abroad, the birth certificate shall be annotated by the NSO (PSA now).

The year of Sandra’s birth had a lot to do with the process that they went through so she can rightfully use her father’s last name.  She was born after August 3, 1988 to unmarried parents; this resulted to her using her mother’s last name as her last name.  In order for her to use her father’s last name, Henry had to execute and file the above affidavits.

With the help of a lawyer and kind employees at the LCR office where her birth was registered, Sandra was able to get the updated copy of her PSA birth certificate in time to complete her documents for graduation.

In April 2005, she proudly marched on stage and received her high school diploma as Sandra P. Rodriguez, daughter of the late Henry Rodriguez.

Parental Travel Permit

Paul and Becca’s relationship has always been shaky. Even while they were dating, they would have episodes of verbal and physical abuse, mostly inflicted by her to him than the opposite. They parted ways before graduating from college only to reunite a few years later when Becca’s mother passed away and she needed someone to lean on. Paul offered friendship but Becca wanted more. Paul obliged and the rest is history.

Shortly into their first year of getting back together, Becca gave birth to their daughter, Kathy. Paul had big plans for his young family and worked harder in the small restaurant business that he put up after college.

So he was really surprised when Becca announced that she is leaving him and will be moving back in with her siblings. At first, she took their baby with her and would not let Paul see her unless he has groceries and other supplies for their child. Later on, Becca would let Paul borrow Kathy during weekends and on trips to Paul’s side of the family. One unexpected day, Becca’s sister brought Kathy to Paul’s condominium, complete with the child’s clothes and other belongings. She said that Becca ran off with a guy she met at work and they do not know where she is. And that Paul needs to take in Kathy now that her mother is nowhere to be found.

Kathy grew up under her father’s care. Paul provided handsomely for his only child; now that Kathy is eight years old, he wants to take her to Hong Kong Disneyland and see Queen Elsa in person. Kathy is ecstatic and could not wait for summer vacation so she and Daddy can finally fly out.

There is one catch though.

Since Kathy is an illegitimate child, Paul needs to secure a Parental Travel Permit from Becca so he can be allowed to take Kathy out of the country for their vacation. But Becca is nowhere to be found. From the day Kathy was brought to Paul’s condominium almost eight years ago, they have not heard from Becca anymore. They went to Becca’s parents’ hometowns, to her friends and colleagues; Kathy even spent one whole summer vacation at Becca’s sister’s house in Laguna hoping that Becca would drop by, call, or send a letter or email. They searched through the internet and in every available social media channel where she may be maintaining an account. But all their efforts were futile.

No one knows where she is or if she is still alive. She has literally abandoned, not just her daughter and her family, but her entire life. She literally disappeared without a trace.

Paul is faced with a dilemma. How does he take Kathy to Disneyland without that Parental Travel Permit?

Article 176 of the Family Code of the Philippines states that the biological mother is vested with the sole parental right over her illegitimate child (or children). This is the reason why biological fathers need to seek the mother’s permission to take their children on out-of-town trips. But what if the mother has gone missing like in the case of Becca?

The fact that custody rights are given to mothers says a lot about the woman’s unique ability to nurture children and families. However, there are also cases when the mother is seen to be unfit to care for her kids. There are those who choose not to be responsible for raising their children and therefore, give up their custody rights to the biological father of their children (or any other family member, friends, or complete strangers as in the case of adoption) while others are compelled to give up their right because of personal circumstances that affect their abilities to mother their children. In such cases, the custody is given to the biological father – but not without a proper court order to support the transfer of custody rights.

That is exactly what Paul worked on in order to take his daughter to their dream vacation. He sought the services of a lawyer friend and together, they studied his situation and how they can be given a court order stating that Paul now has the sole custody over Kathy.

Fortunately for Paul, Becca’s siblings threw in their support for Kathy’s sake. They testified that their sister has not had any communication with them or with Kathy for almost eight years now. They heard somewhere that she has migrated to the U.S. but they have yet to confirm this news. They also confirmed that it was Paul who has been providing for Kathy’s education, shelter, and other basic needs ever since she was born.

Once Paul is granted that court order, he and Kathy can begin exploring the world. Both of them are hopeful that Paul’s petition would return positive results. If Paul is granted the custody, they would not even need a DSWD Travel Clearance if he and Kathy are traveling together.

For more information on Travel Clearance and Parental Travel Permits, please visit the DSWD website at www.dswd.gov.ph

Child Support.jpg

While it is true that the Philippines is a Christian nation (predominantly Catholic), it cannot be denied that cases of parents separating and fathers abandoning their families have increased over the years too. Take a trip to a small urban village in Metro Manila and you will be surprised to find out that a lot of the residents are single mothers or married women who have sought annulment of their marriages (for various reasons). In most cases, the children are left under the care of their mothers; in the Philippines, the law dictates that children below 7 years old must be in the custody of his mother in case his parents separate.

This leaves Pinays with the burden of raising their children on their own. Even if the mother is gainfully employed, it is not a secret that sending your kids to school until they graduate from college, providing for all of their basic needs, and performing the role of both a father and a mother is a herculean task. Of course this is not limited to the female parent only as there are also cases where the father is left to take care of the children’s needs on his own.

So how does a single mom (single dad) demand for child support from their respective ex-spouses or partners?

Here are some guidelines when filing for child support in the Philippines:

  1. The parent seeking child support may opt to seek legal assistance from the Public Attorney’s Office (PAO). Other government agencies that cater to these cases are the Department of Justice and the Department of Social Welfare and Development.
  2. If there is physical violence involved in the case and there is evidence that the family’s safety is in jeopardy, a Protection Order is issued. The children will be in the custody of their mother with an entitlement of support.
  3. Child support cases (and other related cases) shall be filed in the Regional Trial Courts which will serve as the Family Courts for hearing cases.
  4. Support applies for both legitimate and illegitimate children. This includes food, clothing, education, and transportation according to the capacity and resources of the father.
  5. The father’s support for his family is compulsory whether he is married to the children’s mother or not. He hands over the monetary support to the children’s mother if the children live with their mother; otherwise, the father must be able to take the children under his care.

Minors are automatically entitled for support from both parents.

The most important documents you need to have on hand when filing such claims are the PSA Birth Certificates of your children and your PSA Marriage Certificate if you are married to your children’s father or mother. Make sure that all entries in these documents are correct to avoid any technicalities in your case.

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