Adoption (Rules 99-100, superseded by AM 02-6-02-SC and Secs 26 and onwards of RA 8043)

Definition: 1. 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).

Nature of the Proceeding2. It is a non-adversarial proceeding (as opposed to an adversarial proceeding which 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). There is no particular opposing parties or defendant to speak of since the proceeding involves the status of a person. 3. It is a privilege it is not naturally innate or fundamental but rather a right merely created by statute. 4. It is a proceeding in rem no ocurt may entertain unless it has jurisdiction over the subject matter, the parties and the res (personal status of the person) CONSTRUCTIVE NOTICE by publication is enough where the residence of the parents is unknown. NOTICE is not required for abandoning parents.

Purpose5. BEST INTEREST OF THE ADOPTEE vs BENEFIT OF THE ADOPTOR.

Construction1. Sustained to promote and fulfuill the noble and compassionate objective of the law best interest of the child 2. Technical rules of pleadings should not be stringently applied Substantial Compliance with the adoption statute applies.

Pedigree Testimony is not allowed GR: declarations in regard to pedigree, although hearsay, are admitted on the principle that they are natural expressions of persons who must know the truth. EXCEPTION: ADOPTION, because there is better proof available and it must be proved.

Secondary evidence of adoption is admissible where the records of adoption proceeding are actually lost or destroyed but it has been established that such adoption paper really existed and was lost. Effects of adoption(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).(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).(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).(4) Issuance of new certificate and first name and surname of adoptee(a) The adoption decree shall state the name by which the child is to be known (Sec. 13). An amended certificate of birth shall be issued by the Civil Registry attesting to the fact that the adoptee is the child of the adopter(s) by being registered with his/her surname (Sec. 14);(b) 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 (Sec. 14);(c) 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 and the court may order its release under the following conditions only: (1) the disclosure of the information to a third person is necessary for purposes connected with or arising out of the adoption; (2) the disclosure will be for the best interest of the adoptee; and (3) the court may restrict the purposes for which it may be used (Sec. 15).

Confidential Nature of Proceedings and RecordsAll hearings in adoption cases, after compliance with the jurisdictional requirements shall be confidential and shall not be open to the public.Except: 1. Necessary , 2. security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used.

Inter-Country Adoption (RA 8043)(1) 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]).

When allowed(1) Inter-country adoptions are allowed when the same shall prove beneficial to the childs best interests, and shall serve and protect his/her fundamental rights (Sec. 2).(2) It is allowed when all the requirements and standards set forth under RA 8043 are complied with.

Functions of the RTC(1) 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 (Sec. 10).

Best Interest of the Minor Standard(1) In case of custody cases of minor children, the court after hearing and bearing in mind the best interest of the minor, shall award the custody as will be for the minors best interests.(2) The totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.

DOMESTIC ADOPTION: DEFINITION OF TERMS: (SEC 3)1. A child legally available for adoption :a. a child who has been voluntarily(knowingly or willingly) or involuntarily(due to abandonment(6 continuous months and declared); substantial, continuous or repeated neglect and abuse; or incompetence to discharge parental responsibilities.) committed to the DSWD or to a duly licensed and accredited child-placing or child-caring agencyb. freed of the parental authority of his biological parents, or c. in case of rescission of adoption, his guardian or adopter(s).2. Foundling a. deserted or abandoned infant or child whose parents, guardian or relatives are unknown; or b. a child committed to an orphanage or charitable or similar institution with unknown facts of birth and parentage and registered in the Civil Register as a foundling.3. "Deed of Voluntary Commitment refers to the written and notarized instrument relinquishing parental authority and committing the child to the care and custody of the Department executed by the childs biological parents or in their absence, mental incapacity or death, by the childs legal guardian, to be witnessed by an authorized representative of the Department after counseling and other services have been made available to encourage the biological parents to keep the child.

Distinguish domestic adoption from inter-country adoptionDomestic AdoptionInter-Country Adoption

Governed by RA 8552, the Domestic Adoption Act of 1998; procedure governed by AM No. 02-06-02-SC, Aug. 22, 2002.Governed by RA 8043, the Inter-Country Adoption Act of 1995; procedure governed by the Amended Implementing Rules and Regulations on ICAA.

Applies 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.Applies 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.

Who may be adopted (SEC 5)Who may be adopted

A child legally available for adoption.Requisites:

a) Below 18 years of age; andb) Judicially declared available for adoption.

Exceptions:a) Legitimate son/daughter of one spouse by the other spouse;b) Illegitimate son/daughter by a qualified adopter;c) 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.d) child whose adoption has been previously rescinded;e) child whose biological or adoptive parents have die but no proceedings initiated within 6 months from death of parents; and f) child otherwise disqualified by law.

Only a legally free child may be adopted. Requisites: (SEC 29)

a) Below 15 years of age; andb) Has been voluntarily or involuntarily committed to the DSWD in accordance with PD 603.

Who may adopt (SEC 4)Who may adopt

1 Filipino Citizens1) 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 adoptees parent; and8) Permanent resident of the Philippines.

1 Aliens1) 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; and5) 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.

Guardians With respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.

1 Filipino Citizens1) Permanent resident of a foreign country;2) Has the capacity to act and assume all rights and responsibilities of parental authority under Philippine laws;3) Has undergone the appropriate counseling from an accredited counselor in country of domicile;4) Has not been convicted of a crime involving moral turpitude;5) Eligible to adopt under Philippine laws;6) 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 UN Convention on Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of the ICAA;8) 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;9) Possesses all the qualifications and none of the disqualifications provided in the ICAA and in other applicable Philippine laws;10) At least 27 years of age at the time of the application; and11) 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.1 Aliens1) 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;6) Eligible to adopt under his/her national law;7) 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;8) 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;9) 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; and10) Possesses all the qualifications and none of the disqualifications provided in the ICAA and in other applicable Philippine laws.

Requirement of Joint Adoption by Spouses (SEC 4) Requirement of Joint Adoption by Spouses

General rule: husband and wife shall jointly adopt; otherwise, the adoption shall not be allowed. Exceptions:

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.

EFFECT: joint parental authority shall be exercised by the spouses. Rule: if the adopter is married, his/her spouse must jointly file for the adoption.

Procedure (SEC 6 onwards)Procedure

JURISDICTION: FAMILY COURTSVENUE: The province or city where the prospective parents reside.

CONTENT OF THE VERIFIED PETITION (SEC 7):1. initiatory pleading CAN BE CONSOLIDATED AND should state if it contains an application for change of name, rectification of simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned, dependent or neglected this is allowed for SPEEDY AND INEXPENSIVE PROCEEDINGS

2. CERTIFICATE OF NON-FORUM SHOPPING IS also required:

3. GENERALLY must contain: (a) name, age, residence of the adoptee in record of birth, baptismal or foundling certificate and school records,

(b) That the adoptee is not disqualified by law to be adopted.

(c) The probable value and character of the estate of the adoptee.(d) the name by which the adoptee is to be known and registered in the Civil Registry.

SPECIFICALLY if adopter is:a. FILIPINO jurisdictional facts and capacity to adopt as stated in Sec 4. b. ALIEN jurisdictional facts and capacity to adopt as stated in Sec 4. c. GUARDIAN fact that he is the legal guardian and the guardianship has terminated and has been cleared of accountabilitiesd. MARRIED- spouse must be co-petitionere. ADOPTEE is FOUNDLING allege the entries in his birth certificate - name of child, date of birth, place of birth, if known; sex, name and citizenship of adoptive mother and father, and the date and place of their marriage.SEC 8: Rectification of Simulated BirthSEC 9: Adoption of a foundling, adandoned, dependent or neglected childSEC 10: CHANGE OF NAMESEC 11: ANNEXES to PETITION

After filing: The petition shall not be set for hearing without a case study report by a licensed social worker. Otherwise, if the petition and attachments are sufficient in form and substance, the court shall issue an order a. registered name of the adoptee in the birth certificate and the names by which the adoptee has been known which shall be stated in the caption;b. the purpose of the petition;c. the complete name which the adoptee will use if the petition is granted;d. date and place of hearing within 6 months from the date of the issuance of the order e. direction that a copy of the order be PUBLISHED before the date of hearing at LEAST ONCE A WEEK for 3 consecutive weeks in Newspaper of general circulation in the province or city where the court is situated;

except if with change of name: date set for hearing shall not be within four (4) months after the last publication of the notice nor within thirty (30) days prior to an election. NOTICE to SOL GEN is also MANDATORY to protect the interest of the state. (SEC 12)

(5) social worker or his equivalent to prepare and submit child and home study reports before the hearing if such reports had not been attached to the petition due to unavailability at the time of the filing of the latter; and

(6) social worker to conduct counseling sessions with the biological parents on the matter of adoption of the adoptee and submit her report before the date of hearing.

HEARING: petitioner and the adoptee must personally appear and the former must testify before the presiding judge of the court on the date set for hearing. (SEC 14)

SUPERVISED TRIAL CUSTODY (SEC15)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.Decree of Adoption: Issued by Philippine Family Court - a EFFECTIVITY: as of the date the original petition was filed even if the petitioners die before its issuance. (SEC 16) Decree contains: 1. name of child which he shall be known and registered. 2. Order: a. Certificate of Finality by Clerk of Court - Issued after finality (expiration of 15-day reglamentary period to appeal)b. Certified true copy of Decree of adoption and cert of finality to be registered with the Civil Registrar where child is originally registered 30 days; if with change of name, Civil reg of court issuing the same is located.c. Civil Registrar of place where adoptee was registered annotate original BC and seal it to be opened only upon order of the court who issued the decree of adoption, issue new BC without annotation, submit proof of compliance within 30 daysConsent Required: Sec 9 of RA 8552: 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 latters spouse, if any; (5) spouse, if any, of the person adopting or to be adopted.JURISDICTION AND VENUE: 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.

CONTENT OF PETITION: 1. Same as above alleging qualifications of adopterSEC 31 requires the following to be annexed TRANSLATED in ENGLIHS: Sec.a) Birth certificate of petitioner;

b) Marriage contract, if married, and, if applicable, the divorce decree, or judgment dissolving the marriage;

c) Sworn statement of consent of petitioners biological or adopted children above ten (10) years of age;

d) Physical, medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist;

e) Income tax returns or any authentic document showing the current financial capability of the petitioner;

f) Police clearance of petitioner issued within six (6) months before the filing of the petitioner;

g) Character reference from the local church/minister, the petitioners employer and a member of the immediate community who have known the petitioner for at least five (5) years;

h) Full body postcard-size pictures of the petitioner and his immediate family taken at least six (6) months before the filing of the petition.

After 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.

Supervised 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.

Decree of Adoption: Issued by a foreign court.

COSTS: the Adopter would shoulder costs of travelling expenses and other fees including passports, visa and other clearances.

Consent 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.

Domestic Adoption Act (RA 8552; AM 02-06-02-SC)Instances when adoption may be rescinded(1) Grounds for rescission:(a) Repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling;(b) Attempt on the life of the adoptee;(c) Sexual assault or violence; or(d) Abandonment and failure to comply with parental obligations (Sec. 19).(2) 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).

Effects of rescission of adoption(1) Parental authority of the adoptees biological parent(s), if known, or the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated;(2) Reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished;(3) Cancellation of the amended certificate of birth of the adoptee and restoration of his/her original birth certificate; and(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).Inter-Country Adoption (RA 8043)(1) 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]).

When allowed(1) Inter-country adoptions are allowed when the same shall prove beneficial to the childs best interests, and shall serve and protect his/her fundamental rights (Sec. 2).(2) It is allowed when all the requirements and standards set forth under RA 8043 are complied with.

Functions of the RTC(1) 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 (Sec. 10).

Best Interest of the Minor Standard(1) In case of custody cases of minor children, the court after hearing and bearing in mind the best interest of the minor, shall award the custody as will be for the minors best interests.(2) The totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.