(The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.)
Q: What is adoption?
Adoption is an act that, by law, creates between two persons the relationship between a parent and a child. It is the process where the child becomes the legitimate child of the adoptive parent, regardless of whether or not the adoptive parent is the child’s biological parent.
Q: What is the purpose of adoption?
Its purpose is to establish a parent-child relationship to:
1. For the children of indigent, incapacitated, or sick parents, to extend to them the protection of the society in the person of the adopter;
2. To allow childless couples or persons to experience the joy and pleasure of parenthood, and to give them an object for the manifestation of their natural parental instincts.
It is the policy of the State that in all matters relating to the care, custody and adoption of a child, the interest of the child shall be the paramount consideration.
Q: Who may adopt?
Any Filipino citizen of legal age who possesses the following qualifications are eligible to adopt:
(1) In possession of full civil capacity and legal rights;
(2) Of good moral character;
(3) Has not been convicted of any crime involving moral turpitude;
(4) Emotionally and psychologically capable of caring for children;
(5) At least sixteen (16) years older than the adoptee (this requirement may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent);
(6) Is in a position to support and care for his children in keeping with the means of the family.
Q: Will a foreigner be allowed to adopt a Filipino child in the Philippines?
Any foreigner possessing the same qualifications as above-stated for Filipino nationals may likewise adopt, provided that:
(1) His country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least 3 continuous years prior to the filing of the petition for adoption;
(2) Maintains such residence until the adoption decree is entered. This requirement may be waived if he is a former Filipino citizen who seeks to adopt a relative within the 4th civil degree of consanguinity or affinity, or one who seeks to adopt the legitimate child of his Filipino spouse, or one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the 4th civil degree of consanguinity or affinity of the Filipino spouse.
(3) Has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country;
(4) His government allows the adoptee to enter his country as his adopted child.
If the foreigner does not possess the above-mentioned qualifications, he may still be found eligible to adopt under the Inter-country Adoption Law.
Q: My husband and I are childless, but it is only me who is willing to adopt. Can I go through with the adoption without involving my husband?
No. Your husband must join you in adopting, because the law requires that the husband and the wife shall jointly adopt.
Joint adoption is not required only in the following instances:
(1) If one spouse seeks to adopt the legitimate son/daughter of the other; or
(2) 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
(3) 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. Also, in cases where joint adoption is not necessary, the law still requires that the spouse of the one who seeks to adopt must, at the very least, give consent to the adoption.
Q: Who may be adopted?
(a) Any person below 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;
(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of a legitimate child;
(d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter 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) died, However, no proceedings for adoption shall be initiated within 6 months from the time of death of said parent(s).
Q: What if the biological parents do not consent to the adoption, can I still proceed with the adoption considering that I can provide to the child better than the biological parents?
No. The written consent of the biological parent(s), if known and living, is required by law before adoption may proceed.
Q: What about the child? Do I still need to secure his consent before I can adopt him?
Yes, if the child is already 10 years old or above. If the child is less than 10 years old, then his consent to be adopted need not be secured.
Q: Where do I file my petition for adoption?
The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside.
Q: Do social workers have a role in adoption proceedings?
Yes. They are mandated to prepare a case study with respect to the adoption being applied for. Under the law, no petition for adoption shall be set for hearing unless a licensed social worker of the Department of Social Welfare and Development, 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 DSWD shall intervene on behalf of the adoptee if it finds, after the conduct of the case studies, that the petition for adoption should be denied. The case studies and other relevant documents and records pertaining to the adoptee and the adoption shall be preserved by DSWD.
Q: What is trial custody?
Before issuance of the decree of adoption, the court shall give the adopter trial custody of the adoptee for a period of at least 6 months within which the parties are expected to adjust psychologically and emotionally to each other, and to establish a bonding relationship. The trial custody shall be monitored by a social worker or by the child-placement or child-caring agency which submitted and prepared the case studies. During said period, temporary parental authority shall be vested in the adopter.
Q: Will the proceedings for my petition for adoption be open to the public?
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 DSWD, 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.
Q: What are the effects of adoption?
On 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).
On 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.
On 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.
Q: What is Inter-country Adoption?
Inter-country Adoption refers to the socio-legal process of adopting a child by a foreign national or a Filipino citizen permanently residing abroad where the petition for adoption is filed. The supervised trial custody is undertaken, and the decree of adoption is issued in the foreign country where the applicant resides thereby creating a permanent parent-child relationship between the child and the adoptive parents.
Q: Who may adopt under the Inter-country Adoption Law?
Any foreign national or Filipino citizen permanently residing abroad may file an Application if he/she:
a. Is at least twenty-seven (27) years of age and is at least sixteen (16) years older than the child to be adopted at the time of the filing of the application, unless the applicant is the parent by nature of the child to be adopted or is the spouse of such parent by nature;
b. Has the capacity to act and assume all the rights and responsibilities incidental to parental authority under his/her national law;
c. Has undergone appropriate counseling from an accredited counselor in his/her country;
d. Has not been convicted of a crime involving moral turpitude;
e. Is eligible to adopt under his/her national law;
f. Can provide the proper care and support and give the necessary moral values and example to the child and, in the proper case, to all his/her other children;
g. Comes from a country with whom the Philippines has diplomatic relations; whose government maintains a foreign adoption agency; and whose laws allow adoption;
h. Files jointly with his/her spouse, if any, who shall have the same qualifications and none of the disqualifications to adopt as prescribed above.
Q: Who may be adopted on inter-country adoption?
Any child who has been voluntarily or involuntarily committed to the DSWD as dependent, abandoned or neglected may be the subject of Inter-Country Adoption. In the case of a child who is voluntarily committed, the physical transfer of said child shall be made not earlier than 6 months from the date of execution of the Deed of Voluntary Commitment by the child’s biological parent/s or guardian. However, this prohibition against physical transfer shall not apply to children being adopted by a relative or to children with special medical conditions.
Q: Where do I file my application for inter-country adoption?
The application shall be filed with the Inter-Country Adoption Board through the Central Authority or an accredited Foreign Adoption Agency (FAA) in the country where the applicant resides. For foreigners who filed a petition for adoption in the Philippines for domestic adoption, the court, after finding the petition to be sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the Board for appropriate action. The Board shall then act on the application.
Q: What is the process in inter-country adoption?
There will be matching of the child with an applicant, which shall be carried out during a matching conference by the Inter-country Adoption Placement Committee together with the head or social worker of the agency or the Secretariat social worker of the ICAB to whom the presentation is delegated. The Board shall issue the Placement Authority within 3 working days upon receipt of the applicant’s acceptance of the matching proposal and the corresponding fees from the Central Authority of the State concerned or its accredited Foreign Adoption Agency (FAA).
After the issuance of the Placement Authority and prior to the departure, the child shall be prepared for his/her placement by the concerned Child Caring/Placing Agency to minimize the anxiety and trauma due to separation from the persons with whom the child may have formed attachments. Further, the preparation shall ensure that the child is physically able and emotionally ready to travel and to form new relationships.
The adoptive parents or anyone of them shall personally fetch the child from the Philippines not later than 20 working days after notice of issuance of the visa of the child for travel to the country where the applicant resides. The applicant shall stay in the country with the child for at least 5 days to allow bonding to occur between and among them.
Trial custody shall start upon physical transfer of the child to the applicant who, as custodian, shall exercise substitute parental authority over the person of the child. If a satisfactory pre-adoptive relationship is formed between the applicant/s and the child, the Board shall transmit an Affidavit of Consent to the Adoption executed by DSWD to the Central Authority and/or the FAA.
The Central Authority and/or the FAA shall ensure that the applicant files the appropriate petition for the adoption of the child before the proper court or tribunal or agency in accordance with their national law.
All rights reserved.