H. Adoption

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

1. Domestic adoption (R.A. No. 8552)

a. Who may adopt

Who may adopt:
1) Filipino citizen – 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. (Section 7[a], R.A. No. 8552)
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. (Ibid.)
2) Alien or foreigner – 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:
1) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or
2) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
3) 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; (Section 7[b], Ibid.)
3) Guardian w/ respect to ward – The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. (Section 7[c], Ibid.)
4) Husband and wife –
General Rule: Husband and wife shall jointly adopt (Paragraph 7, Section 7, Ibid.).
Exceptions:
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. (Ibid.)
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. (Ibid.)

b. Who may be adopted

Who may be adopted:
1) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption;
2) The legitimate son/daughter of one spouse by the other spouse;
3) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;
4) 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;
5) A child whose adoption has been previously rescinded; or
6) 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). (Section 8, Ibid.)

c. Rights of an adopted child

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 16, Ibid.)

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 17, Ibid.)

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. (Section 18, Ibid.)

d. Instances and effects of rescission

Grounds for rescission of adoption by adoptee. Upon petition of the adoptee, with the assistance of the Department 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):

1) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling;

2) attempt on the life of the adoptee;

3) sexual assault or violence; or

4) abandonment and failure to comply with parental obligations.(Section 19, Ibid.)

Who may rescind. It is only the adoptee who may rescind adoption. (See above Section 19, Ibid.)

Adoption, being in the best interest of the child, shall not be 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. (Paragraph 2, Section 19, Ibid.)

Effects of rescission:
1) Restoration of parental authority;
2) Extinguishment of reciprocal rights and obligations;
3) Cancellation of amended certificate of birth of the adoptee and restore to original;
4) Reversion of succession rights prior to adoption, retroacts until date of judgment only; and
5) Vested rights prior judicial rescission, are respected.

If the petition is granted, the parental authority of the adoptee’s biological parent(s), if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished. (Section 20, Ibid.)

The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate. (Paragraph 2, Section 20, Ibid.)

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. (Paragraph 3, Section 20, Ibid.)

All the foregoing effects of rescission of adoption shall be without prejudice to the penalties imposable under the Penal Code if the criminal acts are properly proven. (Paragraph 4, Section 20, Ibid.)

2. Inter-country adoption (RA 8043)

a. When allowed

Inter-Country Adoption as the Last Resort. The Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child. Towards this end, the Board shall set up the guidelines to ensure that steps will be taken to place the child in the Philippines before the child is placed for inter-country adoption: Provided, however, That the maximum number that may be allowed for foreign adoption shall not exceed six hundred (600) a year for the first five (5) years. (Section 5, R.A. No. 8043)

b. Who may adopt

An alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she:

1) is at least twenty-seven (27) years of age and at least sixteen (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:

2) if married, his/her spouse must jointly file for the adoption;

3) has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country;

4) has not been convicted of a crime involving moral turpitude;

5) is eligible to adopt under his/her national law;

6) is 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;

7) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act;

8) 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

9) possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws. (Section 9, Ibid.)

c. Who may be adopted

Only a legally free child may be the subject of inter-country adoption. (Section 8, Ibid.)

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