Adoption – Lex Rex Ph

The primary legal source for domestic adoption in the Philippines is RA 8552. Its short name is Domestic Adoption Act of 1998 and its complete name is AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR OTHER PURPOSES. Full text

This post only gives the highlights of adoption. For more details, please see references.

Legal History

RA 8552 superseded the adoption provisions in the Old Civil Code (603 OCC) where it provides that foreigners can adopt. In the Family Code, foreigners cannot adopt. Under RA 8552, foreigners can adopt now under conditions (see section 7)

Overview of Domestic Adoption

The following is a digest from RA 8552 and Implementing Rules

A couple or single person can adopt
They/he/she has to apply in DSWD to be classified as qualified and the process usually takes 6 months. The DSWD process would include a home study report and matching proceedings.
If approved, the child will be given for foster arrangement.
DSWD will regularly go to house and prepare a home study report and child study report.
Children who are already classified legally available for adoption are either voluntarily or involuntarily committed to institutions approved by DSWD.
When the Undersecretary issues an affidavit of adoption, it means that the biological parents have already given up their authority.
Who will attend the adoption hearing?
1. OSG (The Government’s lawyer) will be part of the adoption proceeding, and will authorize the fiscal to appear on their behalf.
2. Petitioner/s files two: (1) Adoption (2) Prayer for change of name
3. The biological parents must be presented in court so it can be proved that they gave their consent.
Court officials will give a report about the petitioner.

When adoptive parents are within the 4th degree of consanguinity, DSWD is not needed. They can go straight to the courts. (Example: a niece of nephew is 3rd degree). There is a 3-month posting. No hearing. The judgment will be an In rem judgment – “against a thing” the effect of the judgment binds the whole world. If approved where will the child reside? In the residence of the adaptive parents.

Purpose Behind the New Adoption Law

(RA 8552 SECTION 2)

(1) State to ensure that every child remains under the care and custody of his/her parent(s) and be provided with love … Only when such efforts prove insufficient and no appropriate placement or adoption within the child’s extended family is available shall adoption by an unrelated person be considered.

(b) interest shall be the paramount consideration in accordance with the tenets of xxx [international standards]

(c) Safeguard the biological parent(s) from making hurried decisions
i. Prevent the child from unnecessary separation
ii. Protect adoptive parent(s) from attempts to disturb his/her parental authority

Pre-Adoption Services

COUNSELING SERVICES

Biological Parents – 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. Avoiding hurried decision. Steps shall be taken by the Department to ensure that no hurried decisions are made and all alternatives for the child’s future and the implications of each alternative have been provided.
Prospective Adoptive Parent(s) – Counseling sessions, adoption fora, and seminars, among others, shall be provided to the 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.

A child becomes a Foundling if the Location of the Parent(s) is Unknown. – It shall be the duty of the Department 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.

Eligibility (Article III)

WHO MAY ADOPT

(a) Any Filipino citizen 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;

(b) Any Alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that 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, that 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 that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, Further, That the requirements on residency and certification of the alien’s qualification to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or

(iii) 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

(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.

[Read more from RA 8552]

WHO MAY BE ADOPTED?

(a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption;

(b) The legitimate son/daughter of one spouse by the other spouse;

(d) 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;

(e) A child whose adoption has been previously rescinded; or

(f) 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

After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;

(b) 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;

(d) 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

(e) The spouse, if any, of the person adopting or to be adopted.

Procedure (Article IV)

Section 10. Hurried Decisions. – 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.

Section 11. Case Study. – No petition for adoption shall be set for hearing unless a licensed social worker of the Department, 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.

At the time of preparation of the adoptee’s case study, the concerned social worker shall confirm with the Civil Registry the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the concerned social worker to ensure that the adoptee is registered.

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.

The Department shall intervene on behalf of the adoptee if it finds, after the conduct of the case studies, that the petition should be denied. The case studies and other relevant documents and records pertaining to the adoptee and the adoption shall be preserved by the Department.

Section 12. 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 may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee, stating the reasons for the reduction of the period. However, for alien adopter(s), he/she must complete the six (6)-month trial custody except for those enumerated in Sec. 7 (b) (i) (ii) (iii).

If the child is below seven (7) years of age and is placed with the prospective adopter(s) through a pre-adoption placement authority issued by the Department, the prospective adopter(s) shall enjoy all the benefits to which biological parent(s) is entitled from the date the adoptee is placed with the prospective adopter(s).

Section 13. 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. This provision shall also apply in case the petitioner(s) dies before the issuance of the decree of adoption to protect the interest of the adoptee. The decree shall state the name by which the child is to be known.

Section 14. Civil Registry Record. – 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.

Section 15. Confidential Nature of Proceedings and Records. – All hearings in adoption cases shall be confidential and shall not be open to the public. All records, books, and papers relating to the adoption cases in the files of the court, the Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential.

If the court finds that the disclosure of the information to a third person is necessary for purposes connected with or arising out of the adoption and will be for the best interest of the adoptee, the court may merit the necessary information to be released, restricting the purposes for which it may be used.

Effects of Adoption (Article V)

Section 16. 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).

Section 17. 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.

Section 18. 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.

Legal Sources

RA 8552 – AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR OTHER PURPOSES

AM 02-6-02-SC – Implementing rules on adoption RA 9523 – An Act Requiring the Certification of DSWD to Declare a Child Legally Available for Adoption as a Prerequisite for Adoption Proceedings

RA 11222 – An Act Allowing the Rectification of Simulated Birth Records and Prescribing Administrative Adoption Proceedings for the Purpose.

Cases

RIGHT THEREUNDER TO FILE A PETITION FOR ADOPTION ALONE CANNOT BE PREJUDICED BY THE ENACTMENT OF THE NEW LAW. A petition cannot be dismissed by reason of failure to comply with a law that was not yet in force and effect at the time.

As long as the petition for adoption was sufficient in form and substance in accordance with the law in governance at the time it was filed, the court acquires jurisdiction and retains it until it fully disposes of the case.

It is a settled rule therein that adoption statutes, as well as matters of the procedure leading up to adoption, should be liberally construed to carry out the beneficent purposes of the adoption institution and to protect the adopted child in the rights and privileges coming to it as a result of the adoption.

Republic vs CA and Bobiles