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Written Report on Adoption (First Part)

Definition of Adoption:

Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.

It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.

The modern trend is to consider adoption not merely an act to establish a relationship of paternity and filiation, but also an act which endows the child with a legitimate status.

Background on Law and Origin of Adoption

In Lahom v. Sibulo , 406 SCRA 135 (2003), the Court gave a brief background of the law and origin of adoption in order to provide some insights on the subject.

Romans Resorted to adoption in order to assure male heirs in the family Primary purpose: the continuity of adopters family

Greeks, French, Spaniards and English First: neither allowed nor recognized adoption It was only later when adoption was given impetus in law and the welfare of the child became a paramount concern

Americans

Introduced their own ideas on adoption, which made the interests of the child an overriding consideration.

Written instruments that would also safeguard the rights of the adopted children were promulgated, namely:

1. Geneva Declaration of Rights of the Child of 1924 2. Declaration of Human Rights of 1948 3. United Nations Declarations of the Rights of the Child

In the Philippines, the Civil Code of the Philippines of 1950 on adoption, later modified by the Child and Youth Welfare Code and then by the Family Code of the Philippines, gave immediate statutory acknowledgement to the rights of the adopted.

Domestic Adoption Act of 1998 & Inter-Country Adoption Act of 1995 Repealing Clause Republic Act No. 8043 Inter-Country Adoption Act of 1995 Republic Act No. 8552 Domestic Adoption Act of 1998

These two laws did not expressly repeal Title VII on Adoption in the Family Code. The repealing clauses of these laws provide as follows: Sec. 21. Repealing Clause. Any law, decree, executive order, administrative order or rules and regulations contrary to, or inconsistent with the provisions of this Act are hereby repealed, modified or amended accordingly. (Inter-Country Adoption Act of 1995)

Sec. 26. Repealing Clause. Any law, presidential decree or issuance, executive order, letter of instruction, administrative order, rule or regulation contrary to, or inconsistent with the provisions of this Act are hereby repealed, modified or amended accordingly. (Domestic Adoption Act of 1998) As provided by par. 1 of Article 7 of the New Civil Code, Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary, and as discussed, implied repeals rest only on the presumption that because the old and the new laws are incompatible with each other, there is an intention to repeal the old. There must be a plain, unavoidable and irreconcilable repugnancy between the two and if both laws can by reasonable construction stand together, both will be sustained.

Thus, the foregoing clauses are not considered as express repeal because they fail identify or designate the act or acts that are intended to be repealed.

Domestic Adoption - Governing Laws:

Domestic Adoption Act Provisions of Title VII of the Family Code

Who are Qualified to Adopt:

1. Filipino Adopter 2. Alien Adopter 3. Guardian as Adopter

1. Filipino adopter

Qualifications of an adopter: 1. He must be of age and at least 16 years older than the adoptee, except if the biological parent of the adoptee or the spouse of the adoptees parent, in which case the requirement of the sixteen-year difference may be waived; 2. He must be in possession of full civil capacity and legal rights of good moral character and has not been convicted of any crime involving moral turpitude 3. The adopter must be emotionally and psychologically capable of caring for children in keeping with the means of the family In addition: 1. He must be of age and at least 16 years older than the adoptee, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted; 2. Of good moral character and has not been convicted of any crime involving moral turpitude; and

2. Alien adopter

Qualifications: 1. He/she must possess the same qualifications required of Filipino nationals, and in addition: 2. His/her country must have diplomatic relations with the Republic of the Philippines;

3. He/she has been certified by his/her diplomatic or consular office or any appropriate government agency to be legally capacitated to adopt in his/her country; 4. His/her government allows the adoptee to enter his/her country as his/her adopted son/daughter; 5. 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.

3. Guardian as adopter

The guardian may not adopt his or her ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation. The guardian may only adopt the ward after termination of the guardianship and clearance of his/her financial accountabilities.

Joint Adoption of Spouses

The Domestic Adoption Act and the Family Code both require a joint adoption by the husband and wife.

Joint adoption of spouses is for both spouses, except in three instances:

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 legitimate son/daughter, provided however, that the other spouse has signified his/her consent thereto; or 3. If the spouse are legally separated from each other.

Who May Be Adopted

1. Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption. A child is considered legally available for adoption if the child is below 18 years of age, has been voluntarily or involuntarily committed to the Department of Social Welfare and Development or to a duly licensed and accredited child-placing or child-caring agency and freed of the parental authority of his/her biological parent(s) or guardian or adopter(s), in case of rescission of adoption. A voluntarily committed child is one whose parent(s) knowingly and willingly relinquishes parental authority to the DSWD. An involuntarily committed child is one whose parent(s) known or unknown, has been permanently and judicially deprived of parental authority due to (1) abandonment; substantial, continuous, or repeated (2) neglect; (3) abuse; or (3) incompetence to discharge parental responsibilities.

2. The legitimate son/daughter of one spouse by the other spouse Not necessary that adoptee be below eighteen (18) years of age

3. An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy 4. 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. 5. A child whose adoption has been previously rescinded. To be legally available for adoption, the child must be below 18 years of age. 6. A child whose biological or adoptive parent(s) has died provided that the child is below eighteen (18) years of age.

Requirement of Consent

The written consent of the following to the adoption 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 latters spouse, if any; 5. The spouse, if any, of the person adopting or to be adopted.