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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 Proceeding
2. 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.
Purpose
5. BEST INTEREST OF THE ADOPTEE vs BENEFIT OF THE ADOPTOR.
Construction
1. 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 Records
All 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
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; and
10) 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
Rule: if the adopter is married, his/her
spouse must jointly file for the adoption.
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.
Procedure (SEC 6 onwards)
JURISDICTION: FAMILY COURTS
VENUE: 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
Procedure
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
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
accountabilities
d. MARRIED- spouse must be copetitioner
e. 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 Birth
SEC 9: Adoption of a foundling,
adandoned, dependent or neglected child
SEC 10: CHANGE OF NAME
SEC 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
qualifications of adopter
SEC 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
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 6month 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
days
Consent 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)