Spec Pro Class 2020

New Rule on Adoption, effective August 22, 2002

 

SECTION 1. VENUE.

 

      A person desiring to adopt another or have the custody of a minor shall present his petition to the Court of First Instance of the province, or the municipal or justice of the peace court of the city or municipality in which he resides.

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     In the City of Manila, the proceedings shall be instituted in the Juvenile and Domestic Relations Court.

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SECTION 2. CONTENTS OF PETITION.

 

      The petition for adoption shall contain the same allegations required in a petition for guardianship, to wit:

              (a) The jurisdictional facts;

              (b) The qualification of the adopter;

              (c) That the adopter is not disqualified by law;

              (d) The name, age, and residence of the person to be adopted and                     of his relatives of the persons who have him under their care;

              (e) The probable value and character of the estate of the person                       to be adopted.

 

 

SECTION 3. CONSENT OF ADOPTION.

 

      There shall be filed with the petition a written consent to the adoption signed by the child, if fourteen years of age or over and not incompetent, and by the child's spouse, if any, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned such child, or if there is no such parents by the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum, children's home, or benevolent society or person, by the proper officer of such asylum, home, or society, or by such person; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required.

 

       If the person to be adopted is of age, only his or her consent and that of the spouse, if any, shall be required.

 

 

SECTION 4. ORDER FOR HEARING.

 

      If the petition and consent filed are sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, which shall not be more than six (6) months after the entry of the order, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best.

 

 

SECTION 5. HEARING AND JUDGMENT.

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      Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed, that the allegations of petition are true, and that it is a proper case for adoption and the petitioner or petitioners are able to bring up and educate the child properly, the court shall adjudge that thenceforth the child is free from all legal obligations of obedience and maintenance with respect to its natural parents, except the mother when the child is adopted by her husband, and is, to all legal intents and purposes, the child of the petitioner or petitioners, and that its surname is changed to that the petitioner or petitioners. The adopted person or child shall thereupon become the legal heir of his parents by adoption and shall also remain the legal heir of his natural parents. In case of the death of the adopted person or child, his parents and relatives by nature, and not by adoption, shall be his legal heirs.

 

ADOPTION

 

Preliminary  Considerations

 

      The provisions of the Rules of Court on Adoption have been  amended by the RA 8552, the Domestic Adoption Act of 1998; RA 8143, the Inter-county Adoption Act of 1995; Administrative Matter 02-6-02-SC, the Rule on Domestic and Inter County Adoption; Administrative Matter 02-1-19-SC, Re: Proposed Rule on Commitment of Childred; and Administrative Matter 03-04-04-SC, the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors.

 

Nature and Concept of Adoption

 

      Adoption is a juridical act, a proceeding in rem  which creates between the two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction.It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity.28 The fact of adoption is never presumed, but must be affirmatively proved by the person claiming its existence. The destruction by fire of a public building in which the adoption papers would have been filed if existent does not give rise to a presumption of adoption nor is the destruction of the records of an adoption proceeding to be presumed. On the contrary, the absence of a record of adoption has been said to evolve a presumption of its non-existence. (2 CJS 444) Where, under the provisions of the statute, an adoption is effected by a court order, the records of such court constitute the evidence by which such adoption may be established.

     

      While adoption has often been referred to in the context of a "right", the privilege to adopt is itself not naturally innate or fundamental but rather a right merely created by statute. It is a privilege that is governed by the state's determination on what it may deem to be for the best welfare of the child. Matters relating to adoption including the withdrawal of the right of an adopter to nullify the adoption decree, are subject to regulation by the state. Concomitantly a right of action given by statute maybe taken away at anytime before it has been exercised.

Adoption is also a proceeding in rem which no court may entertain unless it has jurisdiction not only over the subject matter of the case and over the parties but also over the res, which is the personal status of the parties. Our Civil Code adheres to the theory that jurisdiction over the status of a natural person is determined by the latter's nationality. Personal status, in general, is determined by and/or subject to the jurisdiction of the domiciliary law. This perhaps, is the reason why our Civil Code (now Family Code) does not permit adoption by aliens (as a general rule).

 

    In adoption, as a proceeding in rem, constructive notice, such as publication duly made is enough where the residence of the parents is unknown. Notice moreover is not required in adoption cases in regard to the abandoning parent.

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Purpose of Adoption

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     Adoption used to be for the benefit of the adoptor. It was intended to afford persons who have no child of their own the consolation of having one, by creating through legal fiction the relation of paternity and filiation where none exists by blood relationship. The present tendency however, is geared more towards the promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life, and every intendment is sustained to promote that objective. Under the law now in force, having legitimate, legitimated, acknowledged natural children or children by legal fiction is no longer a ground for disqualification to adopt.