ADOPTION: Points to Consider

By:
Agcaoili, Joeshua
Alviarne, Aprille
de Lara, Claudette Abigail

The State recognizes the Filipino family as the foundation of the

nation. Accordingly, it shall strengthen its solidarity and actively promote its
total development. Filipino families are basically composed of a Father, who
is the pillar of the family, the mother, who serves as the guiding light, and
the children, as the fruit of parents love.
Unfortunately, some couples suffer from health conditions that
prevent them from bearing their own child. Thus, the legislative body of the
government enacted Republic Act 8552 entitled, Domestic Adoption Act of
1998, that enable childless couples to become parents thru adopting
qualified child or person. Adoption is a juridical act, a proceeding in rem,
which creates between two persons a relationship similar to that which
results from legitimate paternity or filiation.
Adoption used to be for the benefit of the adopter. However, as time
passes by, the tendency shifted towards the promotion of the welfare of the
child and the enhancement of his or her opportunities for a useful and happy
life.

Under Section 7 of the Domestic Adoption Act, the following may

adopt:
(1)A Filipino citizen who is:
a. Of legal age;
While the law recognizes a person who is at least 18 years old as
already of legal age, he is still not considered in possession of his full
civil capacity. His does not absolutely enjoy his legality because, while
of legal age, he still cannot marry without his parents consent. It is
understood, therefore, that only persons who are qualified to marry of
their own volition are qualified to adopt.
b. In possession of full civil capacity and legal rights;
c. Of good moral character;
d. Has not been convicted of any crime involving moral
turpitude;
In the conviction of a crime involving moral turpitude, there must
be a final judgment of conviction. A person convicted in the first
instance may after all be eventually acquitted.
e. Emotionally and psychologically capable of caring for
children;
f. At least 16 years older than the adoptee, however, this
requirement may be waived when the adopter is the
biological parent;
g. In a position to support and care for his or her children
in keeping with the means of the family.

The case of Landingin vs. Republic (G.R. No. 164948, June

27, 2006 states that since the primary consideration in adoption is the
best interest of the child it follows that the financial capacity of
prospective parents should be carefully evaluated and considered. The
court denied the petition for adoption filed by Petitioner Landingin on
the ground that the Home Study Report shows that Petitioner
Landingin is employed on a part-time basis and her house is still being
amortized. The adopter should be personally capable and financially
stable to support the prospective adoptee and not depend on his or her
own legitimate child for support and care.
(2)An alien:
a. Who possess all the qualifications abovementioned;
b. Whose country has diplomatic relations with our
country;
c. Has been living in the Philippines for at least three (3)
continuous years prior to the filing of application for
adoption

and

maintains

such

residence

until

the

adoption decree is entered;

d. Has been certified by his or her diplomatic or consular
office or any appropriate government or agency that he
or she has the legal capacity to adopt in his own
country;
e. His or her government allows the adoptee to enter in his
or her country as his or her adopted child.

Nevertheless, the residency requirement and certification of the

aliens qualification to adopt in his country may be waived for the
following:
a. A former Filipino citizen who seeks to adopt a relative
within 4th degree of consanguinity or affinity;
b. One who seeks to adopt legitimate child of his Filipino
spouse;
c. One who is married to a Filipino citizen and seeks to
adopt jointly with his spouse a relative within the 4 th
degree of consanguinity or affinity;
In the case Republic vs. Miller (G.R. No. 125932, April 22,
1999), the Spouses Miller, both American citizens, filed in July
29, 1988 a verified petition to adopt a Filipino child under the
provisions of the Child and Youth Welfare Code which allows
aliens to adopt. However, on August 3, 1998, the Family Code
became effective, prohibiting the adoption of a Filipino child by
aliens. The Solicitor General questioned the granting of the
petition for adoption by the RTC. The Supreme Court held that an
alien qualified to adopt under the Child and Youth Welfare Code,
which was in force at the time of the filing of the petition,
acquired a vested right which could not be affected by the
subsequent enactment of a new law disqualifying him. Vested
right include not only legal or equitable title to the enforcement

of a demand, but also an exemption from new obligations

created after the right has vested.
(3)The guardian with respect to the ward after the termination of
the

guardianship

and

clearance

of

his

financial

accountabilities.
Anyone desiring to adopt may, under Section 6 of the Rules on
Adoption, file the petition for adoption with the Family Court of the City or
Province where the prospective adoptive parents reside.
Husband and wife shall jointly adopt, except in the following
cases:
a. If

one

spouse

seeks

to

adopt

the

legitimate

son/daughter of the other; or

b. If one spouse seeks to adopt his/her own illegitimate
child: Provided, however, that the other spouse has
signified his/her consent thereto; or
c. If the spouse are legally separated from each other.
The use of the word shall in the abovementioned provision
means that joint adoption by the husband and the wife is mandatory.
This is in consonance with the concept of joint parental authority over
the child which is the ideal situation.
Explained in the case of In Re: Petition for the Adoption of
Michelle P. Lim (G.R. No. 168992-93), it is undisputed that at the

time the petitions for adoption were filed, Petitioner Monina Lim had
already remarried. She filed the petitions by herself, without being
joined by her husband Olario. The Court has no other recourse but to
affirm the trial courts decision denying the petitions for adoption.
Neither does Petitioner Lim fall under any of the three exceptions
enumerated above. The fact that Olario gave his consent to the
adoption as shown in his Affidavit of Consent does not suffice.
In the case of Prasnick vs. Republic (98 Phil 665), the Supreme
Court, thru Justice Felix Angelo Bautista, held that the modern trend is to
consider adoption not merely as an act to establish a relationship of
paternity and filiation, but also as an act which endows the child with a
legitimate status.
While there are several couples who cannot produce their own child,
the number of homeless and abandoned children in the country are
increasing too. Thus, the following persons are available for adoption:
(1)Any

person

below

18

years

of

age

who

has

been

administratively or judicially declared available for adoption;

(2)The legitimate son or daughter of one spouse by the other
spouse;
(3)An illegitimate child by a qualified adopter to improve his or
her status of legitimacy;
(4)A person of legal age if, prior to the adoption, said person has
been consistently considered and treated by the adopter as
his or her own child since minority;

(5)A child whose adoption has been previously rescinded;

(6)A child whose biological or adoptive parents has died,
provided that no proceedings shall be initiated within 6
months from the time of death of said parents;
(7)Any person who is not disqualified by law to be adopted.
Under the new rules on adoption, the judicial declaration that a
child is available for adoption may be done by the court in the adoption
proceeding. However, a prospective adoptee may also be declared
available

for

adoption

administratively,

since

the

voluntary

relinquishment under the Child and Youth Welfare Code has not been
repealed expressly or impliedly by either the Family Code or RA 8552.
Consent of certain individuals is necessary for adoption as
required by Section 9 of RA 8552 after being properly counseled and
informed of his or her right to give or withhold his or her approval of
the adoption, the written consent of the following:
(1)The adoptee, if 10 years of age or over;
(2)The biological parents of the child, if known, or the legal
guardian or the proper government instrumentality which has
legal custody of the child;
In the case of Cang vs. CA (G.R. No. 105308, September 25,
1998), the written consent of the natural parent is indispensable for
the validity of the decree of adoption. Nevertheless, the requirement of
written consent can be dispensed with if the parent has abandoned the
child or that such parent is insane or hopelessly intemperate. The court

may acquire jurisdiction over the case even without the written
consent of the parents or one of the parents provided that the petition
for adoption alleges facts sufficient to warrant exemption from
compliance therewith. This is in consonance with the liberality with
which this Court treats the procedural aspect of adoption.
In this case, however, Herbert did not manifest any conduct that
would forego his parental duties and relinquish all parental claims over
his children as to, constitute abandonment. Physical abandonment
alone, without financial and moral desertion, is not tantamount to
abandonment. While Herbert was physically absent, he was not remiss
in his natural and legal obligations of love, care and support for his
children. The Court find pieces of documentary evidence that he
maintained regular communications with his wife and children through
letters and telephone, and send them packages catered to their whims.
(3)The legitimate and adopted children, if 10 years or over, of
the adopter and adoptee, if any;
(4)The illegitimate children, if 10 years or over, of the adopter, if
living with said adopter;
(5)The spouse, if any, of the adopter or adoptee.
The

rationale

behind

this

requirement

is

to

protect

the

successional rights of the abovementioned persons are affected as a

result of the adoption. Therefore, the law deems it necessary to obtain
the consent of the concerned persons as a condition before any

petition for adoption may be granted. This requirement also serves as

a tool to preserve the harmony between the prospective siblings and
members of the family.
Consent of the illegitimate parent is not necessarily required.
Under the Family Code, the illegitimate child is under the sole parental
authority of the mother even though the legitimate father may have
recognized the child. Hence, if the basis for requiring the consent of
the parent is the termination of his parental authority over the child,
then the consent of the illegitimate father is not necessary because he
has no more parental authority over the child as this has been severed
by the adoption.
The consent given by the parents may be withdrawn, as provided
for under Section 4 of RA 8552 whenever the parents of the child have
voluntary relinquish their child for adoption, a period of 6 months shall
be allowed for the biological parents to reconsider any decision to
relinquish his or her child for adoption before the decision becomes
irrevocable. It is submitted that when the revocation of the consent is
for the best interest of the child, the court should allow it even beyond
the 6-month period. With respect to other persons, withdrawal of
consent may be given before the adoption is decreed by the court.
Before the issuance of the decree of adoption the court
shall give the adopter trial custody of the adoptee for a period of at

least 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.
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 and shall take
effect as of the date of the original petition was filed even if the
petitioners die before its issuance.
As enunciated in the case of Tamargo vs. CA (209 SCRA
518), we do not consider that retroactive effect may be given to the
decree of adoption so as to impose liability upon the adopting parents
accruing at the time when the adopting parents had no actual or
physical custody over the adopted child. Retroactive effect may be
given if its favorable to the adoptee. In the instant case, to hold that
parental authority had been retroactively lodged in the Repisura
spouses so as to burden them with liability or fortuitous act that they
could not have foreseen and which they could not have been
prevented would be unfair and unconscionable.
After the decree of adoption has been entered, the
adoption decree has the following effects:

(1)

Sever all legal ties between biological parents and

the adoptee, except when the biological parents is the

spouse of the adopter;
(2) Deem the adoptee as the legitimate child of the
adopter;
(3) Give adopter and adoptee reciprocal rights and
obligations arising from the relationship of parent and
child.
Therefore, even if emancipation terminates parental authority
the adoptee is considered a legitimate child of the adopter with all the
rights of a legitimate child, such as:
(1)To bear the surname of the father and the mother;
(2)To receive support from their parents;
(3)To be entitled to legitimate and other successional
rights.
The adoptee being considered a legitimate child of the adopter is
entitled to all the rights of a legitimate child such as use of surname,
support, and inheritance. In as much as a legitimate child is a
compulsory heir of the legal parent, the adopted child must also be a
compulsory heir of the adopter. As compulsory heir, he is entitled to
the legitime of a legitimate child. He excludes the parents of the
adopter from the inheritance and may be subject to preterition in case
he is totally excluded from the inheritance of the adopter.

In the case of In the Matter of the Adoption of Stephanie

Nathy Garcia (G.R. No. 148311), the court tackled the issue of
whether or not an illegitimate child upon adoption by the natural father
use the surname of her natural mother as her middle name. The court
held that adoption statutes being humane and salutary should be
liberally construed to carry out the beneficent purpose of adoption.
Hence, since there is no law prohibiting any illegitimate child adopted
by her natural father to use as middle name the surname of her natural
mother, the court finds no reason why she should not be allowed to do
so.
Furthermore, the case of Republic vs. CA and Wong (G.R. No.
97906) provides that, while it is true that the statutory fiat under
Article 365 of the Civil Code is to the effect that an adopted child shall
bear the surname of the adopter, it must nevertheless be borne in
mind that the change of the surname of the adopted child is more an
incident rather than the object of adoption proceedings. The act of
adoption fixes a status, viz., that of parent and child. More technically,
it is an act by which relations of paternity and affiliation are recognized
as legally existing between persons not so related by nature. It has
been defined as the taking into one's family of the child of another as
son or daughter and heir and conferring on it a title to the rights and
privileges of such. The purpose of an adoption proceeding is to effect
this new status of relationship between the child and its adoptive

parents, the change of name which frequently accompanies adoption

being more an incident than the object of the proceeding. The welfare
of the child is the primary consideration in the determination of an
application for adoption.
While the enactment of the adoption statutes is intended for the
purpose of giving opportunity to childless parents to have their own
child and most especially to consider the best interest of children who
were abandoned or neglected by their natural parents, there may arise
several legal reasons to disunite the relationship the adopter and the
adoptee have created as a result of the grant of the petition for
adoption.
Upon petition of the adoptee, with the assistance of the
Department of Social Welfare and Development (DSWD) if minor, or if
over 18 but is incapacitated, as guardian/counsel, the adoption may be
rescinded on any of the following ground committed by the adopter:
(1)

Repeated

physical

and

verbal

maltreatment

despite

undergoing counselling;
(2)Attempt on the life of the adoptee;
(3)Sexual assault or violence;
(4)Abandonment and failure to comply with parental obligations.
Adoption being the best interest of the child shall not be subject
to rescission by the adopter. However, the adopter may disinherit the
adoptee for causes provided in Article 919 of the New Civil Code.

It was stated in the case of Lahom vs. Sibulo (G.R. 143989,

July 14, 2002) that, prior to the enactment of RA 8552, the adopter
has the right to rescind the adoption. However, when RA 8552 became
effective it has unqualifiedly withdrawn from an adopter the right to
rescind the adoption even in cases where the adoption might clearly
turn out to be undesirable. It remains, nevertheless, the duty of the
court to apply the law. Dura lex sed lex would be the hackneyed truism
that those caught in the law have to live with it. It is deem noteworthy
that an adopter, while barred from severing the legal ties of adoption,
can always for valid reasons cause the forfeiture of certain benefits,
otherwise accruing to a non-deserving child. For instance, upon the
grounds recognized by law, an adopter may deny to an adopted child
his legitime and by a will and testament may freely exclude him from
having a share in the disposable portion of his estate.
We are not unmindful of the main purpose of adoption statutes,
which is the promotion of the welfare of the children. Accordingly, the
law should be construed liberally, in a manner that will sustain rather
than defeat said purpose. The law must also be applied with
compassion, understanding and less severity in view of the fact that it
is intended to provide homes, love, care and education for less
fortunate children.