Dear PAO, My husband is a military officer, while I am a nurse in a public hospital. We are still legally married, but we have been living separately for 10 years now. Three years ago, I gave birth to my youngest child with my live-in partner Jericho. Out of fear of being prosecuted for adultery, Jericho and I agreed not to REflECT HIS NAME IN THE BIRTH CERTIfiCATE as the father of our child. Lately, my relationship with Jericho turned sour. Does Jericho have visitation rights over my youngest child?

Genina

Dear Genina, Jurisprudence recognizes the visitation right of the illegitimate parent over his illegitimate child, that is, the “right of access” of a non-custodial parent over his/her illegitimate child. In the case of Joey D. Briones vs. Maricel P. Miguel, et al., GR 156343, Oct. 18, 2004, the Supreme Court, through Chief Justice Artemio Panganiban explained:

“xxx [T]he Court sustained the visitorial right of an illegitimate father over his children in view of the constitutionally protected inherent and natural right of parents over their children.

“Even when the parents are estranged and their affection for each other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the child.”

However, the afore-said decision may not find application in your case. Article 164 of the Family Code clearly states that children conceived or born during the marriage of the parents are legitimate. Otherwise stated, any birth during the subsistence of a valid marriage is presumed to be the legitimate child of the husband and the wife. Further, as a general rule, it is only the husband who can challenge the legitimacy of his wife’s children.

This finds support in the ruling of the Supreme Court in the case of William Liyao, Jr. v. Juanita Tanhoti-Liyao, et al., GR 138961, March 7, 2002, where Associate Justice Sabino de Leon Jr, explained:

“The fact that xxx had been living separately from her husband, xxx, at the time petitioner was conceived and born is of no moment. While physical impossibility for the husband to have sexual intercourse with his wife is one of the grounds for impugning the legitimacy of the child, it bears emphasis that the grounds for impugning the legitimacy of the child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in proper cases, his heirs under the conditions set forth under Article 262 of the Civil Code. Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces and he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and economic interest involved.”

On the assumption that your husband does not question the legitimacy of the child, then your youngest child’s status is fixed. The child is considered as your legitimate child with your husband. Corollary, there being no parent-child relationship, in the eyes of the law, between your live-in partner Jericho and your youngest child, he has no legally demandable right to visit your youngest child.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.