ADOPTION Domestic Adoption Act of 1998

Abandoned child Parents deserted him for a period of at least 6 continuous months + judicially declared as such (thus if exactly 6 months deserted = abandoned)

AMENDMENT: RA 9523 An Act Requiring the Certification of the DSWD to declare a Child Legally Available for Adoption as a prerequisite for adoption proceedings. The time period for the child to be declared abandoned has been reduced to a maximum of 3 months from the original of maximum of 6 months, while the period for the child to be declared legally available for adoption will be limited to less than 2 months from up to 3 years in court proceedings. RA 9523 has made declaration of abandonment of a child administrative in nature as it now requires a certification signed by the DSWD Secretary in lieu of a judicial order. The DSWD is the agency charged to implement the provisions of this Act and shall have the sole authority to issue the certification declaring a child legally available for adoption. Under the IRR, the petition declaring a child legally available for adoption can be filed by the head of the agency or institution managed by the national government or local government unit; head or executive director of a licensed or accredited child-caring or child placing agency; and a provincial, city or municipal social welfare and development officer. 1

Adoption is a statutory creation All requisites must be satisfied (strictly construed) But if mere irregularities, possible for there to be substantial compliance If requisites not complied with = judicial decree void (In Re OKeefe)

Philippine Star News Paper, By: Helen Flores May 31, 2009

ADOPTION Domestic Adoption Act of 1998

Sec. 7 - Who may adopt:

1. Filipino citizen:

a. Of legal age b. In possession of full civil capacity & legal rights c. Good moral character d. Not convicted of crime involving moral turpitude (if pardoned, still disqualified) e. Emotionally/psychologically capable of caring for (own biological) children f. At least 16 years older than adoptee g. Not applicable if adopting parent is biological parent (or his spouse) h. In a position to support his children in keeping with means of the family

Qualifications:

Relatives by Blood or Affinity may adopt one another, provided the all the statutory qualifications, exclusions, and requirements are met. i.e. Siblings may adopt one another / Step parent may adopt Step child (Party of Five Show / Kiko Pangilinan and KC)

Childs extended family is the preferred adopter of the State. In the event of unavailability of extended family, unrelated parties will be considered as adopters.

Capacity for Adoptive Parenthood:

Adopter should be Emotionally and Psychologically able to care for the child Financially capable to support child Should be able to support the adopted child with in the means of the family The adoption should not affect prospective parents own children

ADOPTION Domestic Adoption Act of 1998

6 Factors to Evaluating Prospective Parents (Child Welfare League of America): *CWLA is the oldest Child Welfare group in the US, Est. 19202

1. Total Personality of the Applicants 2. Emotional maturity 3. Quality of marital relationship 4. Feeling about children 5. Feeling about childlessness and readiness to adopt 6. Motivation

Conviction Necessary:

Presumption of innocence should be maintained, conviction is necessary to disqualify petitioner. Even if petitioner was pardoned form conviction, the disqualification still would stand. Example: Charles Manson not a good candidate

Advance Age of Prospective Parents:

Older prospective parents may adopt but, have to factor in the health of the petitioners and the home they will be able to provide. Advanced age, by itself, is not sufficient to disqualify desiring adopting parent (In Re Browns Adoption) Example: Dolphy Quizon 83, adopted a child Nicole with Zsa-Zsa.3

2 3

Child Welfare League of America, website ABS-CBN.com, Funfare, Ricardo Lo, July 20, 2008

ADOPTION Domestic Adoption Act of 1998

2. Aliens:

a. Same qualifications as Filipino b. His country has diplomatic relations with the Philippines. This requirement is present so the Philippines can monitor the progress of the Filipino adoptee.

c. Living in the Phils. for at least 3 years (continuous) prior to filing application d. Maintains his residence until adoption decree is entered e. Certified to have legal capacity to adopt by his diplomatic/consular office

* Residency & certification requirements may be waived in following cases: 1. Former Filipino adopting a relative within 4th degree of affinity/consanguinity 2. Adopting legitimate child of Filipino spouse 3. Married to Filipino & adopting jointly with spouse a relative within 4th degree of said spouse Note: The waiver is not automatically granted, the courts have discretion over waiver.

f. His country allows entry of adoptee as his child

Example: APL De Ap, adopted @ age 14 by American Lawyer

3. Guardian with respect to ward, after:

a. Termination of guardianship relation b. Clearance of his financial accountabilities Final accounting and clearance is needed before terminating said guardianship, this is to make guardian accountable for mismanagement of wards properties.

ADOPTION Domestic Adoption Act of 1998

General Rule: spouses must adopt jointly

Husband and Wife shall jointly adopt, Except in the following:

1. Spouse adopting legitimate child of other spouse 2. Adopting his own illegitimate child (provided the other spouse has consented) 3. Spouses legally separated

(Joint parental authority in the first 2 cases) Situation: Filipino adopts alien. Alien is not automatically conferred Filipino citizenship. Sec. 8. 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; (General Rule) (b) The legitimate son/daughter of one spouse by the other spouse; Example: Sen. Francis Kiko Pangilinan adopted KC Conception. 4

(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; Example: Grandmother adopted grandchild even if he/she was 20yrs old.

(e) A child whose adoption has been previously rescinded; or (Child was re-adopted due to abuse of previous adopter)

Philippine Daily Inquirer , By Christine Avendao, Alcuin Papa, Marinel Cruz, Bayani San Diego Jr., Oct. 11, 2008

ADOPTION Domestic Adoption Act of 1998

(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). Letters b,c,d, are referred to as De facto adoptions. They must be converted into legal adoption for the legal rights & privileges to attach. Sec. 9. Whose Consent is Necessary to the Adoption. 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.

*By requiring consent, the adopter and his/her family will be prepared psychologically and emotionally a new member to enter their family. Example: Adams Family

No need to get consent of parents of the child when: Parents not known Parents abandoned child

Sufficient that written consent was attached to the petition. Need not identify his signature in open court (Cathey vs. Republic). Adopter may also just testify that he/she secured the consent required

ADOPTION Domestic Adoption Act of 1998

If child abandoned by natural parents, consent of guardian ad litem suffices. Illegitimate child : Consent of mother suffices If father acknowledges the child & cohabits with the mother, his consent also needed

No binding adoption plan shall be permitted before birth of the child.

6 months for biological parent to reconsider decision to relinquish child for adoption After 6 months, decision becomes irrevocable (statutory estoppel)

Sec. 10 Hurried Decisions. In all proceedings from adoption, the court shall require proof that the biological parents his/her from making hurried decision 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. Sec. 11 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 childplacing or child-care agency has made a case study of the adoptee, his/her biological parent(s0, as well as the adopter(s), and has submitted the report and recommendations on the matter to the court hearing such petition. At the time of preparation of the adoptees 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. The case study of 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

ADOPTION Domestic Adoption Act of 1998

adopter(s) shall ascertain his/her genuine intentions and that the adoption is in the best interest of the child. 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.

*The two sections above will also be integral requirements for the adoption petition mentioned in RA 9523, Sec. 3. Sec. 12. 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). 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).

Exceptions for Foreigner: 1. Former Filipino adopting a relative within 4th degree of affinity/consanguinity; 2. Adopting legitimate child of Filipino spouse; 3. Married to Filipino & adopting jointly with spouse a relative within 4th degree of said spouse.

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). Adoption can only be by judicial decree (not private agreement = void) Constructive notice by publication is sufficient (Santos vs. Aranzaso)

ADOPTION Domestic Adoption Act of 1998

Sec. 13. 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.

*Once decree of adoption is issued, cannot be collaterally attacked.

Effectivity of Adoption Decree: Adoption decree will be effective as of the date the original petition was filed. *(During the period of trial custody, parental authority shall be vested in the adopting parent.)5

Adoptee treated as a legitimate child for purposes of succession (but only with respect to the adoptive parent). Adoptee subject to the rule on preterition

Once adoption decree becomes final, all legal ties with biological parent are severed. Adopter is the one who gives consent to marriage of adopted child (18-21 years old) Death of adopter or emancipation of child does not restore relation with natural parents But relation is personal, does not extend to other relatives Adoption only creates parent-child relation Adopted child cannot inherit from grandparents by representation of parent Cannot also inherit from other relatives of the adoptive parent

Art 3., Child and Youth Welfare Code

ADOPTION Domestic Adoption Act of 1998

Children of adopted child not treated as descendants of the adopter (Santos vs. Republic) Biological parent gets nothing by intestacy from adopted child (but may be devisee/legatee in a will). Adoptee also will not inherit from biological parent by intestacy (but may be devisee/legatee) Sec. 14. 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. Once the final adoption decree has been issued the surname of the adopted will be changed to the surname of the adopter. The original birth certificate will be replaced with a new birth certificate with the childs new name without any annotations of amendments that had been made. Sec. 15. 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. 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. Confidentiality of Proceedings and Records has been enforced to protect the Natural Parents, Adopters, and Adoptees. Upon the age of majority the Adoptee, may reconcile the adoption records if he/she wishes to do so.