ArticuLaw Primo
LSPU-LAW STAR CLASS
Rule 99-100
DOMESTIC AND INTER-COUNTRY ADOPTION AND RESCISSION OR REVOCATION OF ADOPTION
Prepared by: Rushid Jay Sancon and Ella Marie Sanico
Definition of Adoption
ž Adoption is a juridical act which creates between two persons a relationship similar to that which results from legitimate paternity (Prasnick vs. Republic, 98 Phil. 669).
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ž Adoption is a juridical act, a proceeding in rem, which creates between the two persons a relationship similar to that which results from legitimate paternity and filiation.
ž Inter-Country Adoption refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued in the Philippines (Sec. 3[a], RA 8043).
ž Adoption is not an adversarial proceeding. An adversarial proceeding is one having opposing parties, contested, as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party and afforded the latter an opportunity to contest it excludes an adoption proceeding. In adoption, there is no particular defendant to speak of since the proceeding involves the status of a person it being an action in rem.
Distinction between Domestic and inter-country adoption
Domestic Adoption
ž- Governed by RA 8552, the Domestic Adoption Act of 1998; procedure governed by AM No. 02-06-02-SC, Aug. 22, 2002.
- žApplies to domestic adoption of Filipino children, where the entire adoption process beginning from the filing of the petition up to the issuance of the adoption decree takes place in the Philippines.
- žA child legally available for adoption.Requisites: ža) Below 18 years of age; and žb) Judicially declared available for adoption.
EXCEPTIONS: ža) Legitimate son/daughter of one spouse by the other spouse; žb) Illegitimate son/daughter by a qualified adopter; žc) 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.
- Filipino Citizens 1) Of legal age; 2) In possession of full civil capacity and legal rights; 3) Of good moral character; 4) Has not been convicted of any crime involving moral turpitude; 5) Emotionally and psychologically capable of caring for children; 6) In a position to support and care for his/her children in keeping with the means of the family; 7) At least 16 years older than the adoptee but this latter requirement may be waived if (a) the adopter is the biological parent of the adoptee; or (b) the adopter is the spouse of the adoptee’s parent; and 8) Permanent resident of the Philippines.
- Aliens 1) Same qualifications as above, and in addition: 2) His/her country has diplomatic relations with the Republic of the Philippines; 3) His/her government allows the adoptee to enter his/her country as his/her adopted son/daughter; 4) Has been living in the Philippines for at least 3 continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered; and 5) 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. This requirement may be waived if (a) a former Filipino citizens seeks to adopt a relative within the 4th degree of consanguinity or affinity; (b) one seeks to adopt the legitimate son/daughter of his/her Filipino spouse; (c) one who is married to a Filipino citizen and seeks to adopt a relative within the 4th degree of consanguinity or affinity of the Filipino spouse
- žGeneral rule: husband and wife shall jointly adopt; otherwise, the adoption shall not be allowed.
žExceptions: 1) If one spouse seeks to adopt the legitimate son/daughter of the other; 2) If one spouse seeks to adopt his/her own illegitimate son/daughter but the other spouse must give his/her consent; 3) If the spouses are legally separated from each other.
- Procedure: žWhere to file application: In the Family Court of the province or city where the prospective parents reside. žAfter filing: The petition shall not be set for hearing without a case study report by a licensed social worker.
- žSupervised Trial Custody: a) Temporary parental authority is vested in prospective adopter; b) Period is at least 6 months, but may be reduced by the court motu propio or upon motion; c) If adopter is alien, the law mandatorily requires completion of the 6-month trial custody and may not be reduced, except if: (1) a former Filipino citizen seeks to adopt a relative within 4th degree of consanguinity or affinity; (2) one seeks to adopt the legitimate son/daughter of his/her Filipino spouse; (3) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse
- Consent Required: Written consent of the following to the adoption is required, in the form of affidavit: (1) adoptee, if 10 years of age or over; (2) biological parent/s of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; (3) legitimate and adopted sons or daughters, 10 years of age or over, of the adopter/s and adoptee, if any; (4) illegitimate sons/daughters, 10 years of age of over, of the adopter if living with said adopter and the latter’s spouse, if any; (5) spouse, if any, of the person adopting or to be adopted.
Inter-country Adoption
- žGoverned by RA 8043, the Inter-Country Adoption Act of 1995; procedure governed by the Amended Implementing Rules and Regulations on ICAA.
- žApplies to adoption of a Filipino child in a foreign country, where the petition for adoption is filed, the supervised trial custody is undertaken and the decree of adoption is issued outside of the Philippines.
- žOnly a legally free child may be adopted. Requisites: ža) Below 15 years of age; and žb) Has been voluntarily or involuntarily committed to the DSWD in accordance with PD 603.
- Filipino Citizens ž1) Permanent resident of a foreign country; ž2) Has the capacity to act and assume all rights and responsibilities of parental authority under Philippine laws; ž3) Has undergone the appropriate counseling from an accredited counselor in country of domicile; ž4) Has not been convicted of a crime involving moral turpitude; ž5) Eligible to adopt under Philippine laws; ž6) In a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted;ž 7) Agrees to uphold the basic rights of the child as embodied under Philippine laws, the UN Convention on Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of the ICAA; ž8) Residing in a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed in that country; ž9) Possesses all the qualifications and none of the disqualifications provided in the ICAA and in other applicable Philippine laws; ž10) At least 27 years of age at the time of the application; and ž11) At least 16 years older than the child to be adopted at the time of application, unless (a) adopted is the parent by nature of the child to be adopted; or (b) adopter is the spouse of the parent by nature of the child to be adopted.
- Aliens 1) At least 27 years of age at the time of the application; 2) At least 16 years older than the child to be adopted at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent; 3) Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws; 4) Has undergone the appropriate counseling from an accredited counselor in his/her country; 5) Has not been convicted of a crime involving moral turpitude; ž6) Eligible to adopt under his/her national law; ž7) In a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; ž8) Agrees to uphold the basic rights of the child as embodied under Philippine laws, the UN Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of the ICAA; ž9) Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and ž10) Possesses all the qualifications and none of the disqualifications provided in the ICAA and in other applicable Philippine laws.
- žRule: if the adopter is married, his/her spouse must jointly file for the adoption.
- Procedure: žWhere to file application: Either in (a) Family Court having jurisdiction over the place where the child resides or may be found, or (b) Inter-Country Adoption Board (ICAB) through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents. žAfter filing: (a) if filed in the FC, court determines sufficiency of petition in respect to form and substance, after which, petition is transmitted to ICAB; (b) if petition is already with ICAB, it conducts matching of the applicant with an adoptive child; (c) after matchmaking, the child is personally fetched by the applicant for the trial custody which takes place outside of the Philippines.
- žSupervised Trial Custody: a) This process takes place outside of the country and under the supervision of the foreign adoption agency; b) For a period of 6 months; c) If unsuccessful, ICAB shall look for another prospective applicant. Repatriation of the child is to be resorted only as a last resort; d) If successful, ICAB transmits a written consent for the adoption to be executed by the DSWD, and the applicant then files a petition for adoption in his/her country.
- žConsent Required: (1) Written consent of biological or adopted children above 10 years of age, in the form of sworn statement is required to be attached to the application to be filed with the FC or ICAB; (2) If a satisfactory pre-adoptive relationship is formed between the applicant and the child, the written consent to the adoption executed by the DSWD is required.
Question: What are the effects of adoption?
Answer
ž(1) Transfer of parental authority – except in cases where the biological parent is the spouse of the adopter, the parental authority of the biological parents shall terminate and the same shall be vested in the adopters (Sec. 16).
ž(2) 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 (Sec. 17).
ž(3) Successional rights
(a) In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation (Sec. 18);
(b) However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern (Sec. 18);
(c) Art. 18(3) of the Family Code and Sec. 18, Art V of RA 8552 provide that the adoptee remains an intestate heir of his/her biological parent (Obiter Dictum in In re In the Matter of Adoption of Stephanie Naty Astorga Garcia, 454 SCRA 541).
Question: What are the instances when an adoption may be rescinded?
Answer
žThe following are the instances when adoption may be rescinded:
ž(a) Repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling;
ž(b) Attempt on the life of the adoptee;
ž(c) Sexual assault or violence; or
ž(d) Abandonment and failure to comply with parental obligations (Sec. 19).
ž(2) Prescriptive period:
ž(a) If incapacitated – within five (5) years after he reaches the age of majority;
ž(b) If incompetent at the time of the adoption – within five (5) years after recovery from such incompetency (Sec. 21, Rule on Adoption).
Question: Is there a prescriptive period for such rescission?
Answer: YES. Below are the prescriptive period:
(a) If incapacitated – within five (5) years after he reaches the age of majority;
(b) If incompetent at the time of the adoption – within five (5) years after recovery from such incompetency (Sec. 21, Rule on Adoption).
Question: What are the effects of adoption rescission?
Answer
ž(1) Parental authority of the adoptee’s biological parent(s), if known, or the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated;
ž(2) Reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished;
ž(3) Cancellation of the amended certificate of birth of the adoptee and restoration of his/her original birth certificate; and
ž(4) Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected (Sec. 20).
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Rules on Custody of Children, download here