Halila SudagarFamily CodeRA 8043(Inter-Country Adoption Act of 1995),RA 8552 Republic Act 8552 Domestic Act of 1998.[footnoteRef:1] [1: ]

1. Under the Family Code, foreigners, subject to certain exceptions, are already prohibited from adopting.NOTE: The court may allow aliens to adopt under the Child and Youth Welfare Code.1. Republic Act 8043 (Inter-Country Adoption Act of 1995), where it governs aliens or Filipinos permanently residing abroad qualified to adopt Filipino children. RA 8043 only applies to aliens or Filipinos permanently residing abroad.

2. Common RA 8552The first is that the adopter must be at least 16 years older than the adopted, subject to certain exceptions:a. adopter is the biological parentb.spouse of such parent

Common- Family CodeThe first is that the adopter must be at least 16 years older than the adopted, subject to certain exceptions:a. adopter is the biological parentb.spouse of such parent

This (2nd) is under RA 8552 because under the Family Code the spouse of the legitimate parent of the person to be adopted. Under the Family Code spouse of the legitimate parent of the person to be adopted.The word legitimate is no longer found in RA 8552. It states spouse of such parent.

Other common provision is if married, husband and wife must jointly adopt.

Other common provision is if married, husband and wife must jointly adopt.

The exceptions under the Family Code are the following:a. when one spouse seeks to adopt his own illegitimate childb.when one spouse seeks to adopt the legitimate child of the other.

Under RA 8552:a.if one spouse seeks to adopt the legitimate child of the otherb.when one spouse his or her illegitimate spouse provided the other signifies his consent theretoc.(not found in the Family Code) if both spouses are legally separated. Then, there is no need for a joint adoption. Only the prospective adopter may file the petition for adoption

Who will adopt?Under the Family Code, Filipinos with full civil capacity and legal rights. Under the Family Code and the Domestic Adoption Act, at least 16 years older. There is no age setBut under RA 8043, aliens or Filipinos permanently residing abroad at least 27 years of age. Here (RA 8043), the prospective adoptive parent, whether a foreigner or a Filipino permanently residing abroad, must be at least, not only 16 years older, but at least 27 years of age.

The same hold true with RA 8552. Under the Family Code and the Domestic Adoption Act, at least 16 years older. There is no age set

Under the Family Code, aliens are generally not qualified to adopt, subject to certain exceptions. Under Article 184, paragraph 3:

ARTICLE 184. The following persons may not adopt: xxx(3)An alien, except;(a)A former Filipino citizen who seeks to adopt a relative by consanguinity;(b)One who seeks to adopt the legitimate child of his or her Filipino spouse; or (c)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 adoption as may be provided by law.

But under RA 8552, aliens are already qualified to adopt subject to requirement that must be living (in the Philippines) for 3 continuous years prior to the filing of the petition for adoption and maintaining such residence until the decree is entered.The exception to that requirement of 3-year continuous residency are the following:a. a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinityUnder the Family Code, it merely says consanguinity. Here, it includes a relative by affinity up to the 4th degreeb. one who seeks to adopt the legitimate child of his Filipino spousec. If one is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative a relative within the 4th degree of consanguinity or affinity of the Filipino spouse.

Who will be adopted?(Family Code) The general rule is only minors, subject to certain exceptions:a. Child by natureb.The person had been consistently treated by the adopter as his/her own child during minority.- In both laws, the Family Code and the Domestic Adoption Act, minors

Under RA 8043, only a legally free child. Child under RA 8043 means below 15 years of age. So, 14 or below. But here (RA 8043), the child is a child below 15 years of age.

In Domestic Adoption Act, any person below 18 administratively or judicially declared available for adoption. Those may be adopted. In both laws, the Family Code and the Domestic Adoption Act, minors

Who shall give consent in writing?The same provision found in the Family Code is provided for under the Domestic Adoption Act. The consent is only in writing both in the Family Code and RA 8552.

ARTICLE 188.The written consent of the following to the adoption shall be necessary: (1)The person to be adopted, if ten years of age or over;(2)The parents by nature of the child, the legal guardian, or the proper government instrumentality;(3)The legitimate and adopted children, ten years of age or over, of the adopting parent or parents;(4)The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latter's spouse, if any; and(5)The spouse, if any, of the person adopting or to be adopted.

But in RA 8043, this requires that the written consent must be in the form of a sworn statement. The consent of the children above 10 years of age must be in the form of a sworn statement.

Who shall give consent in writing?The same provision found in the Family Code is provided for under the Domestic Adoption Act. The consent is only in writing both in the Family Code and RA 8552.

ARTICLE 188.The written consent of the following to the adoption shall be necessary: (1)The person to be adopted, if ten years of age or over;(2)The parents by nature of the child, the legal guardian, or the proper government instrumentality;(3)The legitimate and adopted children, ten years of age or over, of the adopting parent or parents;(4)The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latter's spouse, if any; and(5)The spouse, if any, of the person adopting or to be adopted.

Where the petition shall be filed?

In both cases in Family Code as well as RA 8552, with the Family Court. In RA 8043, it can be filed here in the Philippines before the Family Court or with the Inter-Country Adoption Board, through an intermediate agency in the country of the prospective parent.

Under RA 8043, there are 2 options available to the adoptive parent. The petition can be filed before our Family Courts or it can be filed before the Inter-Country Adoption Board.In both cases in Family Code as well as RA 8552, with the Family Court.

What are the effects?Under the Family Code: a. the adopted becomes the legitimate child of the adopterb.parental authority of the parents by nature is terminated and is now vested with the adoptive parentsUnder RA 8552:a. the parental authority of the parents by nature is terminated and is now vested upon the adoptive parentsb. the legitimate child of the adopter is entitled to all the rights and obligations provided by law to legitimate children without discrimination of any kindc. in legal and intestate succession, the adopter and the adopted shall have reciprocal rights of succession without distinction from legitimate filiation.

RescissionUnder the Family Code, both the adoptive parent and the adopted child may file a petition for rescission of the decree of adoption.This is not true under RA 8552. The person given the right to file a petition for rescission of the decree of adoption is only the adopted child. The adoptive parent is no longer given the right to rescind. At most, as in the case of LAHOM vs. SIBULO (406 SCRA 135), the recourse of the adoptive parent is to disinherit the child for purposes mentioned under the law on succession.

There is this provision under Section 13 of RA 8552.

SECTION 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.

This means that it has retroactive effect. When shall it retroact? As of the date of the filing of the original petition. So, there is that retroactive effect.

What is the meaning of that retroactive effect? This was answered in the case of:TAMARGO vs. COURT OF APPEALS (June 3, 1992)The decree of adoption was already issued by the court. But the adopting parents, at the time the adoption was issued, were not in the Philippines. They were in abroad. The custody of the child has to remain with the parents by nature.While staying with the parents by nature, the child committed an act, which gave rise to damages. Who shall be liable for the damages caused by the act of the child?The parents by nature said that it should be the adopting parents because of the retroactive effect of that decree of adoption. Are the parents by nature correct?The Supreme Court said in the case of Tamargo, we do not consider that retroactive effect may be given 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. Put a little differently, no presumption of parental dereliction on the part of the adopting parents could have arisen since Adelberto was not in fact subject to their control at the time the tort was committed.Inasmuch that there was absence of actual or physical custody, the adoptive parent cannot be held liable for damages. The one answerable for it would be the parents by nature inasmuch as they were the one who had actual and physical custody over the adopted child.

One of the provisions under the Family Code on Adoption, which according to most authors, has not been carried over to RA 8552 is Article 190.Article 190 refers to the adopted child dying intestate. So, how shall the estate of the adopted child be partitioned?

ARTICLE 190.Legal or intestate succession to the estate of the adopted shall be governed by the following rules:(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 adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters;

Take note that if the adopted child is survived by ascendants, the ascendants must be legitimate. With the parents, there is no question whether legitimate or illegitimate. But if ascendants or grandparents, it must be legitimate.

(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.

That is one provision not carried over by RA 8552.Section 18 of RA 8552 does not give the adopter the right of representation because it does not involve a reciprocal right between a parent and a child. There is no right of representation.

RA 8552 SECTION 18.Succession. 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.

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