Legal Definition and Effects of Adoption
Adoption is defined as a juridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.
In the Philippines, adoption must be though court processes. Without going to court, the adoption cannot be considered as valid, insofar as the laws are concerned. All hearings in adoption cases shall be confidential and shall not be open to the public.
The Supreme Court discussed the legal implication of adoption in the case of Renato Lazatin vs. Judge Campos, G.R. No. L-43955-56, 30 July 1979, to wit:
“Adoption is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively proved by the person claiming its existence. xxx”
Legal Basis of Adoption in the Philippines
Republic Act No. 8552, or otherwise known as the Domestic Adoption Act of 1998 (“RA 8552”), is the law establishing the rules and policies on the domestic adoption of Filipino children.
Pre-adoption Services Requirement for Adoption
Under RA 8552, there is what we call Pre-adoption Counseling Services. The Department of Social Welfare and Development (“DSWD”) shall provide the services of licensed social workers to the following:
- Biological Parent(s) – Counseling shall be provided to the parent(s) before and after the birth of his/her child. No binding commitment to an adoption plan shall be permitted before the birth of his/her child. A period of six (6) months shall be allowed for the biological parent(s) to reconsider any decision to relinquish his/her child for adoption before the decision becomes irrevocable. Counseling and rehabilitation services shall also be offered to the biological parent(s) after he/she has relinquished his/her child for adoption.
- Prospective Adoptive Parent(s) – Counseling sessions, adoption fora and seminars, among others, shall be provided to prospective adoptive parent(s) to resolve possible adoption issues and to prepare him/her for effective parenting.
- Prospective Adoptee – Counseling sessions shall be provided to ensure that he/she understands the nature and effects of adoption and is able to express his/her views on adoption in accordance with his/her age and level of maturity.
What is the procedure for adoption when parents of the child are unknown?
It shall be the duty of the DSWD or the child-placing or child-caring agency which has custody of the child to exert all efforts to locate his/her unknown biological parent(s). If such efforts fail, the child shall be registered as a foundling and subsequently be the subject of legal proceedings where he/she shall be declared abandoned.
Who may adopt under the Domestic Adoption Act?
Any Filipino citizen may adopt.
What are the qualifications of an adopter?
- The adopter must be a Filipino citizen;
- He must be of legal age;
- In possession of full civil capacity and legal rights;
- Of good moral character;
- Has not been convicted of any crime involving moral turpitude;
- Emotionally and psychologically capable of caring for children;
- At least sixteen (16) years older than the adoptee, and
- Who is in a position to support and care for his/her children in keeping with the means of the family.
The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee’s parent.
Can an alien be an adopter under the Domestic Adoption Act?
Yes. Any alien possessing the same qualifications as above stated for Filipino nationals, plus the following additional requirements:
- His/her country has diplomatic relations with the Republic of the Philippines;
- He/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered
- He/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and
- His/her government allows the adoptee to enter his/her country as his/her adopted son/daughter.
Can the residency requirement be waived?
Yes. The requirements on residency and certification of the alien’s qualification to adopt in his/her country may be waived for the following:
- A former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or
- One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
- One who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or
- The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.
As a general rule, husband and wife shall jointly adopt. What are the exceptions?
- if one spouse seeks to adopt the legitimate son/daughter of the other; or
- if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified his/her consent thereto; or
- if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses.
Who may be adopted?
The following may be adopted:
- Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption;
- The legitimate son/daughter of one spouse by the other spouse;
- An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;
- A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority;
- A child whose adoption has been previously rescinded; or
- A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s).
Whose consent is necessary to the adoption?
The written consent of the following to the adoption is hereby required:
- The adoptee, if ten (10) years of age or over;
- The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;
- The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;
- The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter’s spouse, if any; and
- The spouse, if any, of the person adopting or to be adopted.
What is the procedure on adoption?
In all proceedings for adoption, the court shall require proof that the biological parent(s) has been properly counseled to prevent him/her from making hurried decisions caused by strain or anxiety to give up the child, and to sustain that all measures to strengthen the family have been exhausted and that any prolonged stay of the child in his/her own home will be inimical to his/her welfare and interest.
There shall be a Case Study before Adoption Proceedings commence
No petition for adoption shall be set for hearing unless a licensed social worker of the DSWD, the social service office of the local government unit, or any child-placing or child-caring agency has made a case study of the adoptee, his/her biological parent(s), as well as the adopter(s), and has submitted the report and recommendations on the matter to the court hearing such petition.
The case study on the adoptee shall establish that he/she is legally available for adoption and that the documents to support this fact are valid and authentic. Further, the case study of the adopter(s) shall ascertain his/her genuine intentions and that the adoption is in the best interest of the child.
What is a Supervised Trial Custody?
No petition for adoption shall be finally granted until the adopter(s) has been given by the court a supervised trial custody period for at least six (6) months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. During said period, temporary parental authority shall be vested in the adopter(s).
The court, through the court social worker, monitors the relationship of the adoptive parents and the adopted child. Periodic reports are submitted by the court social worker, who shall ensure that the child is well-cared for and the best interests of the child are maintained.
Decree of Adoption
If, after the publication of the order of hearing has been complied with, and no opposition has been interposed to the petition, and after consideration of the case studies, the qualifications of the adopter(s), trial custody report and the evidence submitted, the court is convinced that the petitioners are qualified to adopt, and that the adoption would redound to the best interest of the adoptee, a decree of adoption shall be entered which shall be effective as of the date the original petition was filed.
Changes in the Civil Registry Records of the Child
As an effect of the adoption, an amended certificate of birth shall be issued by the Civil Registry, as required by the Rules of Court, attesting to the fact that the adoptee is the child of the adopter(s) by being registered with his/her surname. The original certificate of birth shall be stamped “cancelled” with the annotation of the issuance of an amended birth certificate in its place and shall be sealed in the civil registry records. The new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue.
What are the legal effects of an adoption decree?
- As to parental authority – Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s).
- As to legitimacy. – The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family.
- As to succession. – In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.
Can the adopted child rescind the adoption? On what grounds?
Yes. Upon petition of the adoptee, with the assistance of the DSWD if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s):
- repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling;
- attempt on the life of the adoptee;
- sexual assault or violence; or
- abandonment and failure to comply with parental obligations.
Can the adoptive parents rescing the adoption?
Adoption, being in the best interest of the child, is not subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.
About Nicolas and De Vega Law Offices
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