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ADOPTION PowerPoint Presentation

ADOPTION

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ADOPTION

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  1. ADOPTION

  2. Lazatin v. Campos (1979) Adoption 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. Only an adoption made through the court, or in pursuance with the procedure laid down under the Rule 99 of the Rules of Court is valid in this jurisdiction.

  3. Cervantes v. Fajardo (1989) • Besides, the minor has been legally adopted by petitioners with the full knowledge and consent of respondents. A decree of adoption has the effect, among others, of dissolving the authority vested in natural parents over the adopted child, except where the adopting parent is the spouse of the natural parent of the adopted, in which case, parental authority over the adopted shall be exercised jointly by both spouses. The adopting parents have the right to the care and custody of the adopted child and exercise parental authority and responsibility over him.

  4. R.A. No. 8552 • R.A. No. 8552 - Domestic Adoption Act of 1998 • A.M. No. 02-6-02-SC – Rule on Adoption

  5. Requisites to be an adopter – Sec. 7 Section 7. Who May Adopt. – The following may adopt: (a) Filipinos (b) aliens (c) guardians adopting ward

  6. (a) Filipino (a) - 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 - emotionally and psychologically capable of caring for children - at least sixteen (16) years older than the adoptee - 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;

  7. (b) Aliens (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:

  8. 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: (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 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.

  9. (c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.

  10. Husband and wife jointly – Sec. 7 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.

  11. In re petition for adoption of Michelle Lim (2009) • Petitioner, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground. Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally separated from each other. • Since the husband is an American Citizen, he also has to meet the requirements on residency and certification that he can adopt.

  12. Need for Consent – Sec. 9 • the written consent of the following to the adoption is hereby required: (a) The adoptee, if ten (10) years of age or over; (b) parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; (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.

  13. Landingin v. Republic (2006) • The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption. • Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and re-established in adoptive parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the adoption.

  14. Aliens as adopters – Sec. 7(b) (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: (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 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;

  15. Republic v. Toledano (1994) The historical evolution of this provision is clear. Presidential Decree 603 (The Child and Youth Welfare Code), provides that husband and wife "may" jointly adopt. 4Executive Order No. 91 issued on December 17, 1986 amended said provision of P.D. 603. It demands that both husband and wife "shall" jointly adopt if one of them is an alien.It was so crafted to protect Filipino children who are put up for adoption. The Family Code reiterated the rule by requiring that husband and wife "must" jointly adopt, except in the cases mentioned before. Under the said new law, joint adoption by husband and wife is mandatory.This is in consonance with the concept of joint parental authority over the child, which is the ideal situation. 7As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.

  16. R.A. 8043 • Inter-Country Adoption Act of 1995 • The ICAB shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child (the last resort).

  17. Who may be adopted – Sec. 8 (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; (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).

  18. Effect of Death – Sec. 13 • Decree of Adoption. – If, after the publication of the order of hearing has been complied with, and no opposition has been interposed to the petition, and after consideration of the case studies, the qualifications of the adopter(s), trial custody report and the evidence submitted, the court is convinced that the petitioners are qualified to adopt, and that the adoption would redound to the best interest of the adoptee, a decree of adoption shall be entered which shall be effective as of the date the original petition was filed. This provision shall also apply in case the petitioner(s) dies before the issuance of the decree of adoption to protect the interest of the adoptee. The decree shall state the name by which the child is to be known.

  19. Procedure in adoption • R.A. No. 9253 - AN ACT REQUIRING CERTIFICATION OF THE DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT (DSWD) TO DECLARE A "CHILD LEGALLY AVAILABLE FOR ADOPTION" AS A PREREQUISITE FOR ADOPTION PROCEEDINGS • Rule on Adoption

  20. Effects of a decree of adoption • 1. on status – legitimate child • 2. on parental authority – adoptive parents

  21. Tamargov. CA We do not believe that parental authority is properly regarded as having been retroactively transferred to and vested in the adopting parents, the Rapisura spouses, at the time the air rifle shooting happened. We do not consider that retroactive effect may be giver to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time when adopting parents had no actual or physically custody over the adopted child. Retroactive affect may perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the Rapisura spouses so as to burden them with liability for a tortious act that they could not have foreseen and which they could not have prevented (since they were at the time in the United States and had no physical custody over the child Adelberto) would be unfair and unconscionable. Such a result, moreover, would be inconsistent with the philosophical and policy basis underlying the doctrine of vicarious liability. Put a little differently, no presumption of parental dereliction on the part of the adopting parents, the Rapisura spouses, could have arisen since Adelberto was not in fact subject to their control at the time the tort was committed.

  22. Effects of a decree of adoption • 3. on hereditary rights – Sec. 18 In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.

  23. Effects of a decree of adoption • 4. on name In the Matter of Adoption of Stephanie Garcia (2005) since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mother’s surname, we find no reason why she should not be allowed to do so.

  24. Rescission of adoption – Sec. 19 • Grounds for Rescission of Adoption. – Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations. Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

  25. Lahomv. Sibulo (2003) While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind the adoption decree even in cases where the adoption might clearly turn out to be undesirable, it remains, nevertheless, the bounden duty of the Court to apply the law. Dura lexsedlex would be the hackneyed truism that those caught in the law have to live with. It is still noteworthy, however, 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 an undeserving 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.

  26. Effects of Rescission – Sec. 20 - the parental authority of the adoptee's biological parent(s), if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated. - The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished. - The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate. - Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected. All the foregoing effects of rescission of adoption shall be without prejudice to the penalties imposable under the Penal Code if the criminal acts are properly proven.

  27. SUPPORT

  28. A. What comprises support – Art. 194 Support compromises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. • The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.

  29. B. Who are obliged to provide support – Art. 195 Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: • (1) The spouses; • (2) Legitimate ascendants and descendants; • (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; • (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and • (5) Legitimate brothers and sisters, whether of full or half-blood (291a)

  30. B. Who are obliged to provide support – Art. 196 Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant's fault or negligence.

  31. Pelayo v. Lauron (1909) • The rendering of medical assistance in case of illness is comprised among the mutual obligations to which spouses are bound by way of mutual support. • The person bound to pay the fees due to the plaintiff for the professional services that he rendered to the daughter-in-law of the defendants during childbirth is the husband of the patient and not her father and mother-in-law

  32. Sanchez v. Zulueta (1939) • the Court of Appeals erred in not allowing the defendant to present his evidence for the purpose of determining whether it is sufficient prima facie to overcome the application. Adultery on the part of the wife is a valid defense against an action for support.

  33. De Asis v. CA (1999) • Res judicata is inapplicable in an action for support for the reason that renunciation of waiver of future support is prohibited by law.

  34. C. Source of support – Art. 197 In case of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership.

  35. C. Source of support – Art. 198 During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After the final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order. 

  36. Lerma v. CA (1974) • Support of the spouses and the children shall be taken from the conjugal partnership property during the pendency of legal separation proceedings. • A right to separate support or maintenance, even from the conjugal partnership property, presupposes the existence of a justifiable cause for the spouse claiming such right to live separately. • A petition in bad faith, such as one filed by one who is guilty of an act which constitute a ground for legal separation at the instance of the other spouse, cannot be considered as within the intendment of the law granting separate support.

  37. Reyes v. Ines-Luciano (1979) • It is true that the adultery of the wife is a defense in an action for support. However, the alleged adultery of the wife must be established by competent evidence. The mere allegation will not bar her from the right to receive support pendentelite. • She was not asking for support to be taken from her husband’s personal funds but from the conjugal property.

  38. D. Order of Support – Art. 199 Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: • (1) The spouse; • (2) The descendants in the nearest degree; • (3) The ascendants in the nearest degree; and • (4) The brothers and sisters. 

  39. Mangonon v. CA (2006) There being prima facie evidence showing that petitioner and respondent Federico are the parents of Rica and Rina, petitioner and respondent Federico are primarily charged to support their children’s college education. In view however of their incapacities, the obligation to furnish said support should be borne by respondent Francisco. Under Article 199 of the Family Code, respondent Francisco, as the next immediate relative of Rica and Rina, is tasked to give support to his granddaughters in default of their parents. It having been established that respondent Francisco has the financial means to support his granddaughters’ education, he, in lieu of petitioner and respondent Federico, should be held liable for support pendentelite.

  40. Lim v. Lim (2007) • This inability of Edward and Cheryl to sufficiently provide for their children shifts a portion of their obligation to the ascendants in the nearest degree, both in the paternal (petitioners) and maternal lines, following the ordering in Article 199. To hold otherwise, and thus subscribe to petitioners’ theory, is to sanction the anomalous scenario of tolerating extreme material deprivation of children because of parental inability to give adequate support even if ascendants one degree removed are more than able to fill the void.

  41. E. Manner & time of payment – Art. 200-204 Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. (295a)

  42. E. Manner & time of payment – Art. 200-204 Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. (296a) Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. 

  43. E. Manner & time of payment – Art. 200-204 Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. Support pendentelite may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of each corresponding month or when the recipient dies, his heirs shall not be obliged to return what he has received in advance. (298a) Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. 

  44. F. Amount of support – Art. 200-208 Art. 205. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or execution. (302a) Art. 206. When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed. (2164a)

  45. Art. 207. When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This Article shall particularly apply when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. (2166a) Art. 208. In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes of circumstances manifestly beyond the contemplation of the parties.

  46. Lacson v. Lacson (2006) • The father who was remiss in his duty to provide support was ordered to pay his daughters support in arrears in the amount of P2,496,000 less the amount of P124,000 which they received as support pendentelite.

  47. G. Renunciation & Termination • NCC 2035 – future support cannot be the subject of a compromise • FC 194 - Support compromises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

  48. H. Support pendentelite Art. 198 - During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After the final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order.  • Rule 61

  49. I. Procedure in applications for support – Rule 61

  50. PARENTAL AUTHORITY & CUSTODY OF CHILDREN