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I. Adoption

1. Domestic Adoption Law

R.A. 8552

a. CONCEPTS

Child – refers to a person below eighteen (18) years of age.(Section 3[a], R.A. 8552)

A child legally available for adoption – refers to a child who has been voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his/her biological parent(s) or guardian or adopter(s) in case of rescission of adoption.(Section 3[b], Ibid.)

Voluntarily committed child – refers to one whose parent(s) knowingly and willingly relinquishes parental authority to the Department. (Section 3[c], Ibid.)

Involuntarily committed child – refers to one whose parent(s), known or unknown, has been permanently and judicially deprived of parental authority due to abandonment; substantial, continuous, or repeated neglect; abuse; or incompetence to discharge parental responsibilities. (Section 3[d], Ibid.)

Abandoned child – refers to one who has no proper parental care or guardianship or whose parent(s) has deserted him/her for a period of at least six (6) continuous months and has been judicially declared as such. (Section 3[e], Ibid.)

Supervised trial custody – refers to a period of time within which a social worker oversees the adjustment and emotional readiness of both adopter(s) and adoptee in stabilizing their filial relationship. (Section 3[f], Ibid.)

Department – refers to the Department of Social Welfare and Development. (Section 3[g], Ibid.)

Child-placing agency – refers to a duly licensed and accredited agency by the Department to provide comprehensive child welfare services including, but not limited to, receiving applications for adoption, evaluating the prospective adoptive parents, and preparing the adoption home study. (Section 3[h], Ibid.)

Child-caring agency – refers to a duly licensed and accredited agency by the Department that provides twenty four (24)-hour residential care services for abandoned, orphaned, neglected, or voluntarily committed children. (Section 3[i], Ibid.)

Simulation of birth – refers to the tampering of the civil registry making it appear in the birth records that a certain child was born to a person who is not his/her biological mother, causing such child to lose his/her true identity and status. (Section 3[j], Ibid.)

b. PROCEDURE

1). Who may adopt

a) 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], Ibid.)

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.)

b) 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.)

c) 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.)

d) Husband and wife

GENERAL RULE: Husband and wife shall jointly adopt (Paragraph 7, Section 7, Ibid.).

EXCEPTION: … except in the following cases:

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.)

2) Who may be adopted

The following 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;

(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;

(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). (Section 8, Ibid.)

3) Whose consent is necessary

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;

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;

(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. (Section 9, Ibid.)

4) Prevention against 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 10, Ibid.)

5) 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. (Section 11, Ibid.)

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. (Paragraph 2, Section 11, Ibid.)

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. (Paragraph 3, Section 11, Ibid.)

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. (Paragraph 4, Section 11, Ibid.)

6) 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). (Section 12, Ibid.)

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). (Paragraph 2, Section 12, Ibid.)

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). (Paragraph 3, Section 12, Ibid.)

7) 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 13, Ibid.)

8) 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 14, Ibid.)

9) 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. (Section 15, Ibid.)

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. (Paragraph 2, Section 15, Ibid.)

c. EFFECTS OF ADOPTION

1) 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.)

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. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family. (Section 17, Ibid.)

3) 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. RESCISSION OF ADOPTION

1) 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.)

2) 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.)

3) 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

5) Vested rights prior judicial rescission, 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. Law on Inter-Country Adoption

R.A. 8043

a. CONCEPTS

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 outside the Philippines. (Section 3, R.A. 8043)

Child – refers to a person below fifteen (15) years of age unless sooner emancipated by law. (Section 3[b], Ibid.)

Department – refers to the Department of Social Welfare and Development of the Republic of the Philippines. (Section 3[c], Ibid.)

Secretary – refers to the Secretary of the Department of Social Welfare and Development. (Section 3[d], Ibid.)

Authorized and accredited agency – refers to the State welfare agency or a licensed adoption agency in the country of the adopting parents which provide comprehensive social services and which is duly recognized by the Department. (Section 3[e], Ibid.)

Legally-free child –refers to a child who has been voluntarily or involuntarily committed to the Department, in accordance with the Child and Youth Welfare Code. (Section 3[f], Ibid.)

Matching – refers to the judicious pairing of the adoptive child and the applicant to promote a mutually satisfying parent-child relationship. (Section 3[g], Ibid.)

Board – refers to the Inter-country Adoption Board. (Section 3[h], Ibid.)

b. PROCEDURE

1) 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.)

2) Who may be adopted

Only a legally free child may be the subject of inter-country adoption. In order that such child may be considered for placement, the following documents must be submitted to the Board:

1) Child study;

2) Birth certificate/foundling certificate;

3) Deed of voluntary commitment/decree of abandonment/death certificate of parents;

4) Medical evaluation /history;

5) Psychological evaluation, as necessary; and

6) Recent photo of the child. (Section 8, Ibid.)

3) Where to file application

An application to adopt a Filipino child shall be filed either with the Philippine Regional Trial Court having jurisdiction over the child, or with the Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents, which application shall be in accordance with the requirements as set forth in the implementing rules and regulations to be promulgated by the Board. (Section 10, Ibid.)

4) Family Selection/Matching

No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. The clearance, as issued by the Board, with the copy of the minutes of the meetings, shall form part of the records of the child to be adopted. When the Board is ready to transmit the Placement Authority to the authorized and accredited inter-country adoption agency and all the travel documents of the child are ready, the adoptive parents, or any one of them, shall personally fetch the child in the Philippines. (Section 11, Ibid.)

5) Pre-adoptive placement costs

The applicant(s) shall bear the following costs incidental to the placement of the child:

1a) The cost of bringing the child from the Philippines to the residence of the applicant(s) abroad, including all travel expenses within the Philippines and abroad; and

2) The cost of passport, visa, medical examination and psychological evaluation required, and other related expenses. (Section 12, Ibid.)

6) Fees, charges, assessments

Fees, charges, and assessments collected by the Board in the exercise of its functions shall be used solely to process applications for inter-country adoption and to support the activities of the Board. (Section 13, Ibid.)

7) Supervision of trial custody

The governmental agency or the authorized and accredited agency in the country of the adoptive parents which filed the application for inter-country adoption shall be responsible for the trial custody and the care of the child. It shall also provide family counseling and other related services. The trial custody shall be for a period of six (6) months from the time of placement. Only after the lapse of the period of trial custody shall a decree of adoption be issued in the said country a copy of which shall be sent to the Board to form part of the records of the child. (Section 14, Ibid.)

During the trial custody, the adopting parent(s) shall submit to the governmental agency or the authorized and accredited agency, which shall in turn transmit a copy to the Board, a progress report of the child’s adjustment. The progress report shall be taken into consideration in deciding whether or not to issue the decree of adoption.(Paragraph 2, Section 14, Ibid.)

The Department of Foreign Affairs shall set up a system by which Filipino children sent abroad for trial custody are monitored and checked as reported by the authorized and accredited inter-country adoption agency as well as the repatriation to the Philippines of a Filipino child whose adoption has not been approved. (Paragraph 3, Section 14, Ibid.)

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