file:spcpro_part4.htm

4. ADOPTION

1. Governing Laws

1. The basic governing law on domestic adoption
is found in Republic Act No. 8552, which is "An Act Establishing the Rules
and Policies on the Domestic Adoption of Filipino Children." It was
approved on February 25, 1998. It took effect fifteen (15) days after its
complete publication in a newspaper of general circulation in the Official
Gazette.

2. On December 2, 1998, Rules and Regulations to
Implement the Domestic Adoption Act of 1998 were promulgated to govern the
adoption of Filipino children within the Philippines.

3. Foreign adoptions are governed by Republic Act
No. 8043, which is "An Act Establishing the Rules to Govern Inter-Country
Adoption of Filipino Children," approved on June 2, 1995.

4. Prior laws on adoption include provisions in
the Child and Youth Welfare Code (Presidential Decree No. 603), the Family
Code, and Executive Order No. 91.

5. The Family Code expressly repealed Articles
17-19, 27-31, 39-42 of the Civil Code and Articles 27-29, 31, 33 and 35
of Presidential Decree No. 603.

6. The Civil Code provisions, however, were
expressly repealed by the provisions of P.D. No. 603, which took effect in
1975, or six months after its approval on December 10, 1974.

7. About six months before the Family Code was
signed by President Corazon C. Aquino as Executive Order No. 209 on July 6,
1987, she promulgated Executive Order No. 91 on December 23, 1986. It was
published in the Official Gazette on January 12, 1987. It should have
taken effect fifteen (15) days thereafter or on January 27, 1987.

8. Republic Act No. 8552 provides that any law,
presidential decree or issuance, executive order, letter of instruction,
administrative order, rule, or regulation contrary to, or inconsistent with its
provisions is repealed, modified or amended accordingly.166
The provisions of Rules 99 and 100 in the Rules of Court should thus be
considered amended.

2.  Petition for
Adoption

1. Who may adopt

Those who may adopt are enumerated in Sec. 7 of
Rep. Act No. 8552, viz:

(a) 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.

Note: 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.

(b) 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:

(i) a former Filipino citizen who seeks to
adopt a relative within the fourth (4th) degree of consanguinity or affinity;
or

(ii) one who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or

(iii) 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; or

(iv) the guardian with respect to the ward
after the termination of the guardianship and clearance of his/her financial
accountabilities.

(c) Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the
other; or

(ii) 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

(iii) 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.

2. Jurisdictional Venue

A petition for adoption shall be filed in the
Regional Trial Court of the place in which the petitioner resides.167Adoption now falls under the original
and exclusive jurisdiction of the Regional Trial Court.168

3. Subjects of adoption

Who may be adopted are enumerated in Sec. 8 of
Rep. Act No. 8552.

4. Aliens

Aliens are now allowed to adopt. For a time,
under the Family Code repealing the provisions in the Civil Code, aliens were
not allowed to adopt. Those who possess the same qualifications as Filipino nationals
upon the following conditions:

4.1 That his/her country has
diplomatic relations with the Republic of the Philippines.

4.2 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.

4.3 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.

4.4 That the requirements of
residency and certification of the alien’s qualification to adopt in his/her
country may be waived by the following:

4.4.1 a former Filipino
citizen who seeks to adopt a relative within the fourth degree of consanguinity
or affinity; or

4.4.2 one who seeks to adopt
the legitimate son/daughter of his/her Filipino spouse; or

4.4.3 one who is married to a
Filipino citizen and seeks to adopt jointly with his/her spouse a relative
within the fourth consanguinity or affinity of the Filipino spouse.

5. Joint Adoption

Husband and wife are required to adopt except (a)
if one spouse seeks to adopt the legitimate son/daughter of the other; (b) if
one spouse seeks to adopt his/her own illegitimate son/daughter, provided that
the other spouse has signified his/her consent thereto; and (c) if the spouses
are legally separated from each other.169

6. Age Difference

The age difference should be 16 years between the
adopter and the adopted, provided that it may be waived when the adopter is the
biological parent of the adoptee or is the spouse of the adoptee’s parent.170

7. Procedure

7.1 Contents of petition

The petition should contain
the same allegations in a petition for guardianship, to wit:

(1) The jurisdictional facts;

(2) The qualifications of the
adopter;

(3) That the adopter is not
disqualified by law;

(4) The name, age, and
residence of the person to be adopted and of his relatives or of the persons
who have him under their care;

(5) The probable value and
character of the estate of the person to be adopted.

7.2 Required consent

Under Sec. 9, Republic Act No.
8552, written consent of the following is required:

(1) The adoptee, if ten (10)
years of age or over.

(2) 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.

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

(4) 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.

(5) The spouse, if any, of the
person adopting or to be adopted.

7.3 Order for hearing

If the petition and consent
are sufficient in form and substance, and a favorable case study has been made,
as hereafter mentioned, the court, by an order, shall fix the date and place of
the hearing which shall not be more than six (6) months after the issuance of
the order.171

7.4 Publication of order

The order shall direct that a
copy thereof be published before the hearing once a week for three (3)
successive weeks in a newspaper of general circulation in the province.

7.5 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.

7.6 Birth registration

At the time of preparation of
the adoptee’s case study, the social worker concerned 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, the social
worker shall ensure that the adoptee is registered.

7.7 Legally available

The case study shall establish
that the adoptee is legally available for adoption and that the documents to
support this fact are valid and authentic. Further, the case study of the
adopter shall ascertain his genuine intentions and that the adoption is in the
best interest of the child.

7.8 Intervention by DWSD

The DWSD shall intervene on
behalf of the adoptee if it finds, after the case study, 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.172

7.9 Supervised Trial Custody

No petition for adoption shall
be finally granted until the adopter/s has/have 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.

(a) 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 adopters, they must complete the
six (6)-month trial custody except for those enumerated in
Sec.7(b)(i)(ii)(iii).

(b) If the child is below
seven (7) years of age and is placed with the prospective adopter through a
pre-adoption placement authority issued by the Department, the prospective
adopter shall enjoy all the benefits to which biological parents are entitled
from the date the adoptee is placed with the prospective adopter.173

7.10 Decree of adoption

If, after the publication of
the order of hearing, no opposition has been interposed, and after
consideration of the case studies, the qualifications of the adopter, the 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. The decree
shall state the name by which the child is to be known174which
shall be effective as of the date the original petition was filed.

Note: This provision
shall also apply in case the petitioner dies before the issuance of the decree
of adoption to protect the interest of the adoptee.175

8. Civil Registry Record

An amended certificate of birth, without any
notation that it is an amended issue, shall be issued by the Civil Registry,
attesting to the fact that the adoptee is the child of the adopter 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 records176

9. Confidential Nature of
Proceedings

All hearings in adoption cases are 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 DWSD, or any other agency or
institution participating in the adoption proceedings shall be kept strictly
confidential. The court may authorize the necessary information to be released,
if it is for the best interest of the adoptee and the disclosure is necessary,
restricting the purposes for which it may be used.177

10. Service of judgment

The judgment shall be served by the clerk on the
civil registrar.

3.  Rescission of
Adoption

1. Grounds for rescission

Upon petition of the adoptee, with the assistance of the DSWD 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): (a) repeated physical and verbal maltreatment by
the adopter(s) despite having undergone counselling; (b) attempt on the life of
the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to
comply with parental obligations.178

2. Who may file

A minor or other incapacitated person may,
through a guardian or guardian ad litem, file the petition for
rescission of adoption. Under Rep. Act No. 8552, Sec. 19, 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.

3. Time to file petition

The petition must be filed within five (5) years
following attainment of majority, or following recovery from incompetency.179

4. Procedure

The court shall issue an order requiring the
adverse party to answer the petition within fifteen (15) days from receipt of a
copy thereof. The order and a copy of the petition shall be served on the
adverse party in such manner as the court may direct. After trial, if the court
finds the allegations of the petition to be true, the court shall render
judgment ordering rescission, with or without costs, as justice requires.

5. Service of judgment

A certified copy of the judgment shall be served
upon the civil registrar concerned. Within thirty (30) days from rendition of
the judgment, he shall enter the action in the civil register.180

4.  Inter-Country
Adoption (Rep. Act No. 8043):

1. Adoption by aliens

The Family Code had provided that adoption by
aliens of Filipino children, while generally prohibited by the Code, shall be
authorized in inter-country adoption as may be allowed by law.

2. The law and the implementing rules and
regulations

The Inter-Country Adoption Act was thereafter
passed on June 7, 1995 and took effect fifteen days after publication in two
newspapers of general circulation.. Its Implementing Rules and Regulations was
passed by the Inter-Country Adoption Board (ICAB) which was thereby created.
The implementing rules, which were patterned after the 1993 Hague Convention,
became effective on January 17, 1996. It has been observed that the
implementing rules contain provisions which are adopted from the Hague
Convention but are not authorized by the law.

3. The process

The process of inter-country adoption refers to
the process of adopting a Filipino child by a foreigner or by a Filipino
citizen permanently residing abroad where the petition is filed. The supervised
child custody is undertaken and the decree of adoption is issued outside the
Philippines.

4. A legally-free child

For a child to be placed under the coverage of
the Inter-Country Adoption Law, he must be legally-free which means that the
child has been voluntarily or involuntarily committed to the DSWD in accordance
with P.D. No. 603 and the necessary documents submitted to the ICAB.

5. Adopters

The qualifications for adopters are more
stringent than the qualifications for adopters in domestic adoption. For one,
an adopter must at least be 27 years of age aside from the 16-year difference
between the adopter and the adopted.

6. Application

An application for inter-country adoption may be
filed with the Regional Trial Court having jurisdiction over the child or with
the ICA Board, through an intermediate agency in the country of the prospective
or adoptive parents.

7. Functions of the RTC

The Regional Trial Court appears merely to
receive applications from foreign adoption agencies, evaluate and assess the
qualifications of the proposed adopter, and pursuant to the implementing rules,
the court must submit its findings and the application papers to the ICAB. The
supervised trial custody is conducted and the decree of adoption is issued by
the court in the place of the adopter abroad.

8. Resident Aliens

Aliens who permanently reside in the Philippines
are not qualified to become adopters under the Inter-Country Adoption
Act. However, under the Domestic Adoption Act, they are qualified to
adopt.

8.1 Art. 184, Family Code
provides that an alien cannot adopt under Philippine law except ‘(a) a
former Filipino citizen who seeks to adopt a relative by consanguinity; and (b)
one who seeks to adopt the legitimate child of his or her Filipino spouse.’

8.2 Where one of the spouses
is an alien, the adoption cannot be allowed. 181

9. Case rulings

9.1 Where one of the spouses
is an alien, they are disqualified to adopt under Philippine laws. 182

9.2 Husband and wife must
jointly adopt. 183

9.3
Non-resident aliens cannot adopt. 184