The Applicable laws

To know more about adoption in the Philippines it is equally important to be aware of the laws governing the adoption process. These laws are Republic Act 8552, known as Domestic Adoption Act of 1998, and  Republic Act 8043, known as Inter-Country Adoption Act of 1995. The former encourages domestic adoption to preserve the child’s identity and culture and only when this is not available shall inter-country adoption be considered as a last resort. Republic Act 8043 governs the adoption of Filipinos by foreigners and Filipinos residing abroad. The said law  is being implemented by the Inter-Country Adoption Board (ICAB).

The subject of this article is all about Republic Act 8552 better known as the Domestic

Adoption Act of 1998.

Who can adopt and be adopted

Can aliens equally adopt, like Filipino citizens, under the domestic adoption law and who may be adopted? Yes, alien can equally adopt subject to certain requirements.

Section 7 (b) of RA 8552 allows an alien to adopt under the domestic adoption law provided that he /she meets the following requirements:

• Of legal age and at least 16 years older than the adoptee (except when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent).
• Possesses full civil capacity and legal rights.
• Of good moral character and has not been convicted of any crime involving moral turpitude.
• Emotionally and psychologically capable of caring for children.
• In a position to support and care for his / her children in keeping with the means of the family.
• His / her country has diplomatic relations with the Philippines.
• Has been certified by the 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 an adopted child.
• Has been living continuously in the Philippines for at least three (3) years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered.

Section 7 (c) also provides that the guardian, with respect to the ward after the termination of the guardianship and clearance of his / her financial accountability, is also qualified to adopt under the law.

The same qualifications, with the exceptions of the 3 years residency and certifications,  is applicable to Filipino nationals.

In so far as the alien adopter is concerned compliance with the residency requirements can be very difficult. This is because the law requires them to continuously reside in the Philippines for at least three (3) years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered. There are certain concerns for relocation of an alien adopter like the fact of his/her being gainfully employed abroad and it would be impractical to relocate even temporarily. But how they can do away with the said requirements. The said residency, together with the certification requirement  on the diplomatic relations, is subject to certain exceptions.  The requirements on residency and certification of the alien’s qualification to adopt in his / her country may be waived for the following cases:

• The applicant is a former Filipino citizen seeking to adopt a relative within the fourth (4th) degree of consanguinity or affinity;
• The applicant is seeking to adopt the legitimate son or daughter of his / her Filipino spouse;
• The applicant 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.

Any person below eighteen (18) years of age who has been administratively declared (those children who were surrendered, abandoned, neglected and dependent) available for adoption;After having determined the qualifications, it is equally important to ask on who may be adopted. According to the domestic adoption law, those that can be adopted are:

• The legitimate son or daughter of one spouse by the other spouse;
• An illegitimate son or daughter by a qualified adopter to improve his / her status to that of legitimacy;
• A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adoptor(s) as his / her own child since minority;
• A child whose adoption has been previously rescinded;
• A child whose biological or adoptive parent (s) has / have died, provided that no proceedings shall be initiated within six (6) months from the time of death of said parent (s);

Parties to the petition for adoption

The law requires that husband and wife should adopt jointly. Therefore, both of them should join the petition as petitioners. However, the following are exceptions to the rule that the husband and wife shall jointly adopt:

• If one spouse seeks to adopt the legitimate son / daughter of the other
• If one spouse seeks to adopt his / her own illegitimate son or daughter, provided, however, that the other spouse has signified his/her consent.
• If the spouses are legally separated from each other.

In case the husband and wife jointly adopt, or one spouse adopts the illegitimate son or daughter of the other, joint parental authority shall be exercised by the spouses.

Supervised trial custody

The law provides that no petition for adoption shall be finally granted until the adopter has been given by the court a supervised trial custody period for at least six (6) months. This is the period where the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. Furthermore, during the said period temporary parental authority shall be vested on the adopter. An alien adopter must complete the six (6) month trial custody except in the following cases:

• Former Filipino citizens adopting a relative within the fourth (4th) degree of consanguinity or affinity
• One who is adopting the legitimate son or daughter of his / her Filipino spouse
• 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.

The one who must give consent to adoptionHowever,  the period for trial custody may be reduced or the parties may even be exempted by the court, on its own instance or upon motion of any party, if it finds that the same shall be for the best interests of the adoptee.

The following should give consent to the adoption:

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.

Documents required

The petition should accompany the following documents:

1. Birth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee;
2.  Affidavit of consent of those required to give consent
3. Child study report on the adoptee and his biological parents;
4. If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate  government agency that he has the legal capacity to adopt in his country and that his government  allows the adoptee to enter his country as his own adopted child unless exempted under Section 4(2);
5.  Home study report on the adopters.  If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; and
6. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any.

Procedure in initiating the petition

It is important to engage a counsel of your own choice to initiate the petition in court. The foregoing discussions on the qualifications and requirements should be considered in filing the petition in compliance with the sufficiency requirements of the petition for adoption in terms of its form and substance. Thereafter, the court where the case is raffled will issue an order finding the petition to be sufficient in form and substance. The order contains the following:

(1)  the 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;

(2)  the purpose of the petition;

(3)  the complete name which the adoptee will use if the petition is granted;

(4)  the date and place of hearing which shall be set within six (6) months from the date of the  issuance of the order and shall direct that a copy thereof be published before the date of hearing   at least once a week for three successive weeks in a newspaper of general circulation in the  province or city where the court is situated; Provided, that in case of application for change of  name, the 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.

(5)  a directive to the social worker of the court, the social service office of the local government unit or any child-placing or child-caring agency, or the Department 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) a directive to the social worker of the court 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.

Order of proceedings according to the Adoption Rules

According to the rules on adoption, upon satisfactory proof that the order of hearing has been published and jurisdictional requirements have been complied with, the court shall proceed to hear the petition.  The 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. The court shall verify from the social worker and determine whether the biological parent has been properly counseled against making hasty decisions caused by strain or anxiety to give up the child; ensure that all measures to strengthen the family have been exhausted; and ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest. If the supervised trial custody is satisfactory to the parties and the court is convinced from the trial custody report and the evidence adduced that the adoption shall redound to the best interests of the adoptee, a decree of adoption shall be issued which shall take effect as of the date the original petition was filed even if the petitioners die before its issuance. The decree shall:

1.  State the name by which the child is to be known and registered;
2. Order:

(1)  the Clerk of Court to issue to the adopter a certificate of finality upon expiration of the 15-day reglementary period within which to appeal;

(2)  the adopter to submit a certified true copy of the decree of adoption and the certificate of finality to the Civil Registrar where the child was originally registered within thirty (30) days  from receipt of the certificate of finality.  In case of change of name, the decree shall be  submitted  to the Civil Registrar where the court issuing the same is situated.

(3)   the Civil Registrar of the place where the adoptee was registered:

1.  to annotate on the adoptee’s original certificate of birth the decree of adoption within thirty (30) days from receipt of the certificate of finality;
2.  to issue a certificate of birth which shall not bear any notation that it is a new or  amended  certificate and which shall show, among others, the following:  registry  number, date of registration, name of child, sex, date of birth, place of birth, name and  citizenship of adoptive mother and father, and the date and place of their marriage, when applicable;
3.  to seal the original certificate of birth in the civil registry records which can be opened  only upon order of the court which issued the decree of adoption; and
4.  to submit to the court issuing the decree of adoption proof of compliance with all the  foregoing within thirty days from receipt of the decree.

If the adoptee is a foundling, the court shall order the Civil Registrar where the foundling was registered, to annotate the decree of adoption on the foundling certificate and a new birth certificate shall be ordered prepared by the Civil Registrar in accordance with the decree.

The rules requires that all hearings in adoption cases, after compliance with the jurisdictional requirements 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 DSWD, 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 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.

In case of an alien adopter/s  and Filipino citizens, who are citizens of other countries at the same time, it is important to consider consulting your immigration lawyer before resorting to domestic adoption laws of the Philippines. This is to avod any legal issues concerning the immigration of the child to be adopted.

September 30,2015

LEGAL ISSUES ON INTERNATIONAL CHILD ABDUCTION

What will happen in case a child abducted from the United States and wrongly retained in the Philippines by the Filipino spouse? Can the left behind parent seek relief to pursue recovery by reason of the child’s abduction to or being wrongfully retained in the Philippines?

Once in the Philippines, the issues regarding child custody can be resolved applying Philippine laws. The Hague Convention on the Civil Aspects of International Child Abduction cannot be invoked by the left behind American spouse. Why? Because the Philippines is  not a signatory to the said convention nor  there were any international or bilateral treaties in force between the Philippines and the United States concerning international parental child abduction. Thus, the treaty remedy by which the left behind parent can pursue to recover the child’s custody is not available. Moreover, not even a US court order awarding custody to the American spouse can bind the Philippine courts or be binding in Philippine territory. There is no existing treaty or convention on the enforcement of court orders on which the  United States is a party so  much so the said decree issued by the US courts can have a binding force here in the Philippines. Therefore, that US court decree will have no other force rather than its persuasive effect once invoked in the Philippine courts.

It is important to take note that  parental child abduction is not a crime under Philippine laws. In that case, any custody issues  should be resolved by invoking jurisdiction of the Philippine courts and applying its laws. It may be true that there is an extradition treaty between the United States and the Philippines, however, the left behind parent cannot resort to extradition as parental child abduction is not an extraditable offense. The extradition process is only applicable involving the abduction of adult, a fugitive and not the child. On the other hand, it is another thing if the parent who brought the child to the Philippines is a U.S. citizen and  whose passport was revoked due to an outstanding federal Unlawful Flight to avoid Prosecution (UFAP) warrant or indictment on charges of International Parental Kidnapping (IPKCA) in violation of 18 USC Section 1204. In that case, a deportation proceedings can be initiated based on lack of a valid travel document against the taking spouse.

Under Philippine law, a child below seven (7) years old cannot be separated from the mother except for compelling reasons. This is known as the maternal preference rule. In assailing custody of the child from the taking parent (Filipino spouse) the left behind parent can initiate a petition for child custody with habeas corpus. However, the left behind parent will have to engage a Philippine attorney to initiate this  proceedings and said left behind parent should actively prosecute the petition in the Philippine courts. Or a petition for recognition and enforcement of a foreign judgment can also be initiated in case the US courts had issued a custody judgment joined with the petition for child custody and habeas corpus.  During the pendency of the main case, the left behind parent, petitioner before the Philippine courts, can move for an order regarding temporary custody or  ask for a court order to exercise his/her visitation rights. Even if the left behind parent was given the temporary custody he/she cannot bring the child out of the country pending the resolution of the main issue involving custody. The other spouse can resort to asking the court to issue a hold departure order (HDO) for the child to prevent the left behind parent (petitioner) from taking the child out of the country.

The Basic Law

The applicable provision can be found in Article 36 of the Family Code, providing as follows:

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

Key Phrases on Psychological Incapacity

1.       A party contracted a marriage
2.      At the time of the celebration of the marriage
3.      Was Psychologically Incapacitated
4.      To comply with the essential marital obligations of marriage
5.      Such incapacity becomes manifest only after its solemnization.

What does it include?

As interpreted by Jurisprudence

The phrase “psychological incapacity” is not meant to comprehend all possible cases of psychoses. It refers to no less than a mental (not physical) incapacity that causes a party to be truly noncognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity; and render help and support. The intendment of the law has been to confine it to the most serious of cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. (Santos versus Court of Appeals, G. R. No. 112019, January 4, 1995, 240 SCRA 20)

Accepted Types of Personality Disorders

In Te versus Te, G.R. No. 161793, February 13,2009, the Honorable Supreme Court  recognized the following types:

Types of Disorders   According to the American Psychiatric Association’sDiagnostic and Statistical Manual of Mental Disorders (3d ed., rev., 1987), or DSM-III-R, personality disorders are categorized into three major clusters:

Cluster A:  Paranoid, schizoid and schizotypal personality disorders. Individuals who have these disorders often appear to have odd or eccentric habits and traits.

Cluster B:  Antisocial, borderline, histrionic and narcissistic personality disorders.  Individuals who have these disorders often appear overly emotional, erratic and dramatic.

Cluster C:  Avoidant, dependent, obsessive-compulsive and passive-aggressive personality disorders.  Individuals who have these disorders often appear anxious or fearful.

The DSM-III-R also lists another category, “personality disorder not otherwise specified,” that can be used for other specific personality disorders or for mixed conditions that do not qualify as any of the specific personality disorders.

Individuals with diagnosable personality disorders usually have long-term concerns, and thus therapy may be long-term.

What are the characteristics to be proved in psychological incapacity?

Existing at “the time of the celebration” of the marriage (known as juridical antecedence).

The evidence must show that the illness was existing when the parties exchanged their “I do’s.” The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.

Medically or clinically permanent or incurable.

Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job.

Gravity

Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, “mild characterological peculiarities, mood changes, occasional emotional outbursts” cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.On the other hand, root cause must be identified as a psychological illness

Those that do not constitute psychological incapacity.

In Ricardo B. Toring v. Teresita M. Toring, G.R. No. 165321, August 3, 2010, 626 SCRA 389, 408,  the Honorable Supreme Court emphasized that irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility, and the like do not by themselves warrant a finding of psychological incapacity, as these may only be due to a person’s difficulty, refusal or neglect to undertake the obligations of marriage that is not rooted in some psychological illness that Article 36 of the Family Code addresses.

Furthermore, habitual alcoholism, sexual infidelity or perversion, and abandonment do not by themselves constitute grounds for declaring a marriage void based on psychological incapacity (Hernandez versus Hernandez, G.R. No. 126010. December 8,199)

According to the Supreme Court, “Mixed personality disorder, the “leaving-the-house” attitude whenever he and Amy quarreled, the violent tendencies during epileptic attacks, the sexual infidelity, the abandonment and lack of support, and his preference to spend more time with his band mates than his family, are not rooted on some debilitating psychological condition but a mere refusal or unwillingness to assume the essential obligations of marriage” (G.R. No. 162368. July 17, 2006).

While habitual alcoholism, sexual infidelity or perversion, and abandonment irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility do not by themselves warrant a finding of psychological incapacity. However, if they are manifestations of a disordered personality which make the party completely unable to discharge the essential obligations of the marital state then it may constitute psychological incapacity.

Unless you can comply with the foregoing key points your efforts to declare your marriage null and void will fall short.