UP BarOps 2008

Hand-out No. 5
(From UP BarOps 2004)

UP BarOps 2008
Hand-out No. 5
(From UP BarOps 2004)

Definition of child

RA 8552: Domestic Adoption Act of

1995
"Child" is a person below eighteen
(18)
years
of
age.
-

Who may be adopted

"A child legally available for

adoption" refers to a child
who has been voluntarily or
involuntarily committed to
the Department or to a duly
licensed and accredited
child-placing or child-caring
agency,
freed
of
the
parental authority of his/her
biological
parent(s)
or
guardian or adopter(s) in
case
of
rescission
of
adoption.

(a) Any person below

eighteen (18) years of age
who
has
been
administratively
or
judicially declared available
for
adoption;
(b)
The
legitimate
son/daughter of one spouse
by the other spouse;

RA 8043: Intercountry Adoption Act

of 1995
Child means a person below fifteen
(15) years of age unless sooner
emancipated by law.
- Legally-free child means a child
who has been voluntarily or
involuntarily committed to the
Department, in accordance with the
Child and Youth Welfare Code.

Legally-free child means a child

who has been voluntarily or
involuntarily committed to the
Department, in accordance with the
Child and Youth Welfare Code.
- only a child who is below 15 years
old
and
is
voluntarily
or
involuntarily committed to the
DSWD

(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;
(e) A child whose adoption
has
been
previously
rescinded;
or
(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).
Who may adopt

(a) Any Filipino citizen of

legal age, in possession of
full civil capacity and legal

An alien or a Filipino citizen

permanently residing abroad may
file an application for inter-country
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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.
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;

adoption of a Filipino child if he/she:

(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:

(d)
has not been convicted of a
crime involving moral turpitude

a)
is at least twenty-seven
(27) years of age and at least
sixteen (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:
(b)
if married, his/her spouse
must jointly file for the adoption;
(c)
has the capacity to act and
assume all rights and
responsibilities of parental authority
under his national laws, and has
undergone the appropriate
counseling from an accredited
counselor in his/her country;

(e)
is eligible to adopt under
his/her national law;
(f)
is 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;
(g)
agrees to uphold the basic
rights of the child as embodied
under Philippine laws, the U.N.
Convention on the Rights of the
Child, and to abide by the rules and
regulations issued to implement the
provisions of this Act;
(h)
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
(i)
possesses
all
the
qualifications and none of the
disqualifications provided herein
and in other applicable Philippine
laws.

(i) a former Filipino

citizen who seeks
to adopt a relative
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UP BarOps 2008
Hand-out No. 5
(From UP BarOps 2004)

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

(c) The guardian with

respect to the ward after
the termination of the
guardianship and clearance
of
his/her
financial
accountabilities.
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.
Whose consent is necessary

(a) The adoptee, if ten (10)

years of age or over;

Written consent of their biological

or adoptive children above ten (10)
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UP BarOps 2008
Hand-out No. 5
(From UP BarOps 2004)
(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;

years of age, in the form of sworn

statement

(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.
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).
If the child is below seven
(7) years of age and is
placed with the prospective
adopter(s) through a preadoption
placement
authority issued by the

The governmental agency or the

authorized and accredited agency
in the country of the adoptive
parents which filed the application
for inter-country adoption shall be
responsible for the trial custody and
the care of the child. It shall also
provide family counseling and other
related services. The trial custody
shall be for a period of six (6)
months
from
the
time
of
placement. Only after the lapse of
the period of trial custody shall a
decree of adoption be issued in the
said country a copy of which shall
be sent to the Board to form part of
the records of the child.chan robles
virtual law library
During the trial custody, the
adopting parent(s) shall submit to
the governmental agency or the
authorized and accredited agency,
which shall in turn transmit a copy
to the Board, a progress report of
the
child's
adjustment.
The
progress report shall be taken into
consideration in deciding whether
or not to issue the decree of
adoption.
The Department of Foreign Affairs
shall set up a system by which
Filipino children sent abroad for trial
custody are monitored and checked
as reported by the authorized and
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UP BarOps 2008
Hand-out No. 5
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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).
Where to
adoption

file

application

for

RTC having jurisdiction over

the child

accredited inter-country adoption

agency as well as the repatriation
to the Philippines of a Filipino child
whose adoption has not been
approved.

1. Philippine Regional Trial Court

having jurisdiction over the child,
OR
2. with the Board
through an intermediate
agency,
whether
governmental
or
an
authorized and accredited
agency,
in the country of the
prospective
adoptive
parents

VIII.
ADOPTION
[A.M. No. 02-6-02-SC. July 31, 2002.]
RE: PROPOSED RULE ON ADOPTION

1. WHO MAY ADOPT/ BE ADOPTED

WHO MAY ADOPT: The following may adopt:
(1)

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;
who is 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 children in keeping with the
means of the family.
The requirement of a 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;
(2)
Any
alien
possessing
the
same
qualifications as above-stated for Filipino nationals:
Provided,
That his country has diplomatic
relations with the Republic of the
Philippines,
that he has been living in the
Philippines for at least three (3)
continuous years prior to the filing of
the petition for adoption and maintains
such residence until the adoption
decree is entered,
that he has been certified by his
diplomatic or consular office or any
appropriate government agency to have
the legal capacity to adopt in his
country, and
that his government allows the adoptee
to enter his country as his adopted
child.
Provided, further, That the requirements on
residency
and
certification
of
the
alien's
qualification to adopt in his country may be waived
for the following:

UP BarOps 2008
Hand-out No. 5
(From UP BarOps 2004)
(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 child
of his Filipino spouse; or
(iii)
one who is married to a Filipino citizen and
seeks to adopt jointly with his spouse a relative
within the fourth (4th) degree of consanguinity or
affinity of the Filipino spouse.

3. if the spouses are legally separated from each

other.
* In case husband and wife jointly adopt or one
spouse adopts the legitimate child of the other, joint
parental authority shall be exercised by the
spouses.
WHO MAY NOT BE ADOPTED:

(3)
The guardian with respect to the ward after
the termination of the guardianship and clearance
of his financial accountabilities.
Husband and wife shall jointly adopt, except in the
following cases:
(i)
if one spouse seeks to adopt the legitimate
child of one spouse by the other spouse; or
(ii)
if one spouse seeks to adopt his own
illegitimate child: Provided, however, That the other
spouse has signified his 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 child of the other,
joint parental authority shall be exercised by the
spouses.
WHO MAY NOT ADOPT:
1) The guardian with respect to the ward prior to
the approval of the final accounts rendered
upon the termination of their guardianship
relation
2) Any person who has been convicted of a crime
involving moral turpitude
3) An alien, except:
A former Filipino citizen who seeks to adopt
a relative by consanguinity
One who seeks to adopt the legitimate child
of his or her Filipino spouse
One who is married to a Filipino citizen and
seeks to adopt jointly with his or her spouse
a relative by consanguinity of the latter
Aliens not included in the foregoing
exceptions
may adopt
Filipino
children
in
accordance with the rules on inter-country
adoptions as may be provided by law.
GENERAL RULE: Husband and wife must jointly
adopt.
EXCEPTIONS:
1. if one spouse seeks to adopt the legitimate child
of one spouse by the other spouse; or
2. if one spouse seeks to adopt his own illegitimate
child: Provided, however, That the other spouse has
signified his consent thereto; or

1) A person of legal age unless:

Person is a child by nature of the adopter
Person is a child by nature of the spouse of
the adopter
Prior to the adoption, said person had been
consistently considered and treated by the
adopter as his or her own child during
minority
2) An alien whose government the Philippines has
no diplomatic relations
3) A person who has already been adopted unless
such adoption has been previously revoked
B. CONSENT NECESSARY FOR ADOPTION
PERSONS WHOSE WRITTEN
REQUIRED FOR ADOPTION:

CONSENT

IS

1.
The adoptee, if ten (10) years of age or
over;
2.
The biological parents of the child, if known,
or the legal guardian, or the child-placement
agency, child-caring agency, or the proper
government instrumentality which has legal custody
of the child;
3.
The legitimate and adopted children of the
adopter and of the adoptee, if any, who are ten (10)
years of age or over;
4.
The illegitimate children of the adopter
living with him who are ten (10) years of age or
over; and
5.
The spouse, if any, of the adopter or
adoptee.
C. EFFECTS OF ADOPTION
1) For civil purposes, the adopted shall be deemed
to be a legitimate child of the adopters and both
shall acquire the reciprocal rights and
obligations arising from the relationship of
parent and child, including the right of the
adopted to use the surname of the adopters
2) The parental authority of the parents by nature
over the adopted shall terminate and be vested
in the adopters, except that if the adopter is the
spouse of the parent by nature of the adopted,
parental authority over the adopted shall be
exercised jointly by both spouses
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3) The adopted shall remain an intestate heir of his
parents and other blood relatives
RULES FOR LEGAL OR INTESTATE SUCCESSION
TO THE ESTATE OF THE ADOPTED:
1) Legitimate and illegitimate children and
descendants and the surviving spouse of the
adopted shall inherit from the adopted, in
accordance with the ordinary rules of legal or
intestate succession
2) When the parents, legitimate or illegitimate, or
the legitimate ascendants of the adopted
concur with the adopter, they shall divide the
entire estate, one-half to be inherited by the
parents or ascendants and the other half, by the
adopters
3) When the surviving spouse or the illegitimate
children of the adopted concur with the
adopters, they shall divide the entire estate in
equal shares, one-half to be inherited by the
spouse or the illegitimate children of the
adopted and the other half, by the adopters
4) When the adopters concur with the illegitimate
children and the surviving spouse of the
adopted, they shall divide the entire estate in
equal shares, one-third to be inherited by the
illegitimate children, one-third by the surviving
spouse, and one-third by the adopters
5) When only the adopters survive, they shall
inherit the entire estate; and
6) When only collateral blood relatives of the
adopted survive, then the ordinary rules of legal
or intestate succession shall apply
D. RESCISSION

the adopter. However, the adopter may

disinherit the adoptee for causes provided
in Article 919 of the Civil Code.( Re:
Proposed Rule on Adoption[A.M. No. 02-602-SC. July 31, 2002.])

EFFECTS OF JUDICIAL RESCISSION:

Extinguishes all reciprocal rights and

obligations between the adopters and the
adopted arising from the relationship of
parent and child.

The adopted shall lose the right to use the

surnames of the adopters and shall resume
his surname prior to the adoption.

The court shall order the amendment of the

records in the proper registries.

* If the adopted minor has not reached the age of

majority at the time of the judicial rescission, the
court in the same proceeding shall reinstate the
parental authority of the parents by nature.
Unless: the parents by nature are disqualified or
incapacitated, in which case the court shall appoint
a guardian over the person and property of the
minor.
* If the adopted person is physically or mentally
handicapped, the court shall appoint in the same
proceeding a guardian over his person or property
or both.

WHEN MAY FILE: verified and filed by the adoptee

who is over eighteen (18) years of age, or with the
assistance of the Department, if he is a minor, or if
he is over eighteen (18) years of age but is
incapacitated, by his guardian or counsel.
GROUNDS FOR RESCISSION: on the same
grounds prescribed for loss or suspension of
parental authority.
1)
repeated physical and verbal maltreatment
by the adopter despite having undergone
counseling;
2)
attempt on the life of the adoptee;
3)
sexual assault or violence; or
4)
abandonment or failure to comply with
parental obligations.
WHEN ADOPTERS MAY PETITION THE
COURT FOR RESCISSION OF ADOPTION:
Adoption, being in the best interests of the
child, shall not be subject to rescission by
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UP BarOps 2008
Hand-out No. 5
(From UP BarOps 2004)