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TULIKA ANAND BBA LL.B "A" 2nd YEAR ROLL NO. 063
ADOPTION
Adoption refers to the act by which an adult formally becomes the guardian of a child and incurs the rights and responsibilities of a parent. At the conclusion of the formal process, a legal relationship between child and guardian will have formed. The legal relationship results in the adoptee becoming the legal heir of the adopter and terminates any legal rights then in existence with the natural parents. While certain jurisdictions only permit one of the two types of adoptions, other jurisdictions recognize two types of adoptions open and closed adoptions. An open adoption permits the birth mother to select her childs adoptive parents. A closed adoption, meanwhile, results in the birth mother relinquishing all rights over the child and allows a state administrative agency to conduct the selection process. Some jurisdictions also permit the parents in an open adoption to maintain their visitation and contact rights.
1. Methods of Adoption
THREE PRIMARY WAYS TO ADOPT IN THE UNITED STATES Foster care adoption: Children adopted from foster care are those who, prior to their adoption, were involved with the child protective services system and removed from their families due to their families inability or unwillingness to provide appropriate care. Public child welfare agencies oversee such adoptions, although they may contract with private adoption agencies to perform some adoption functions. Private domestic adoption: This group is defined here as children who were adopted privately from within the United States, and who were not part of the foster care system at any time prior to their adoption. Such adoptions may be arranged independently or through private adoption agencies. International adoption: This group includes children who originated from countries other than the United States. Typically, adoptive parents work with private U.S. adoption agencies, which coordinate with adoption agencies and other entities in childrens countries of origin.
Parents looking to adopt can choose one of two methods an agency or through independent contact with the biological parents. Both public agencies and private agencies exist for the purpose of facilitating adoptions. States run the public agencies, as a state interest exists in placing parentless children with couples looking to adopt. By the time a public agency becomes involved, the natural parents have already relinquished their rights and therefore lack all control over the process. Public agencies employ a stringent test to determine the suitability of parents looking to adopt. With adoptions through public agencies, adoptive parents do not have the child placed with them until the natural parents have relinquished their rights. Both public and private agencies abide by these practices. With independent adoptions, the natural parents take on the responsibility for finding suitable adoptive parents. Often, the natural parents will place the child in the prospective adoptive parents house for a trial period without the natural parents having relinquished their rights.
backgrounds, social history, financial status, moral fitness, mental and physical fitness, and criminal background. After weighing the factors, the agency makes a recommendation, which the court can accept or reject, with the court basing its decision on serving the best interests and welfare of the child. Many states, including Florida, Nebraska, and Oklahoma have restricted gays and lesbians from adopting children. But because adoption does not constitute a fundamental right, court challenges to the constitutionality of these restrictions have not worked thus far. Legislatures have enacted these statutes upon the premise that child rearing by gays and lesbians would not be in the best interests of the child. Other jurisdictions may only consider sexual orientation as one factor when considering if a parent fits the acceptability requirement.
PRIOR TO ADOPTION, prospective adoptive parents undergo an assessment, often called a home study2. The purpose of this assessment is to identify families appropriateness and readiness for adoption. Specific requirements vary across jurisdictions and depend upon the type of adoption, but often involve training, individual and family interviews, home safety inspections, and reviews of records (such as health evaluations, child abuse and criminal clearances, and driving records).
A home study involves education, preparation, and gathering information about the prospective adoptive parents. 3 T he word approximately is used to stress the fact that States frequently amend their laws. This information is current through April 2012. The States that provide for inheritance from a deceased birth parent are Alaska, Connecticut, Florida, Georgia, Idaho, Iowa, Massachusetts, Minnesota, New Jersey, North Dakota, Ohio, Oregon, Tennessee, and Wisconsin.
by a stepparent, the child may inherit from either birth parent, depending on the circumstances.4
Alabama, Arizona, California, Colorado, Maine, Michigan, Montana, South Dakota, Utah, and Vermont. 5 The States that provide for intestate inheritance for adopted children who are omitted from a will include Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin 6 The term class refers to all those persons in the same category or level of rights, such as heirs of a deceased person who are related by the same degree.
(www.cara.nic.in )
The following conditions have been stipulated: a. An individual above 25 years of age, irrespective of his/her marital status. b. Parents, irrespective of the number or sex, of the living biological children. c. A childless couple. d. A married couple must be married for more than 2 years and the marriage must be stable. e. A married couple whose composite age does not exceed 90 years and where the individual ages of either of the prospective parents is not less than 25 years and more than 50 years may adopt a child of less than 3 years of age. f. A married couple whose composite age does not exceed 105 years and where the individual ages of either of the prospective parents is not less than 25 years and more than 55 years may adopt a child above the age of 3 years; g. The PAPs8 should have adequate financial resources to provide a good h. upbringing to the child. i. The PAPs should have good health and should not suffer from any contagious or terminal disease or any such mental or physical condition, which may prevent them from taking care of the child. j. Couples in live-in relationship are not eligible. k. Except in the case of siblings, a second child may be adopted only when the legal adoption of the first child has been finalized. l. A single male cannot adopt a girl child.
An Indian Prospective Adoptive Parent (PAP) who is a habitual resident of India i.e. an individual who has lived in a place of settled dwelling in India, which constitutes her/his ordinary residence, for at least one year.
Registering with an Adoption Agency The PAP shall apply for registration as per the form prescribed in Schedule-IV of the CARA Guidelines. The application for registration shall be supported by the documents listed in Schedule V of the CARA Guidelines (indicated below). The prospective parent shall pay the requisite registration fee. The following documents must be submitted in original along with two self attested copies: Proof of identity (voter card or pan card or passport or driving license) Proof of address indicating residence in India exceeding 365 days Marriage Certificate Family Photograph (Three recent postcard sized photographs of the adoptive family). Health certificate by a registered medical practitioner certifying that the PAPs are not suffering from any contagious or terminal disease or any such mental or physical condition, which may prevent them from taking care of the child. Two letters of recommendation from persons who know the family well. Such recommendations should not be from immediate relatives of either spouse. If the PAPs are self-employed, IT statement for the last three years and if they are employed, Income Certificate from the employer also indicating the date of superannuation. Financial statement including copies of bank statement for the last six months, details of movable and immovable property owned by the family and details of loans taken by the PAPs. Written consent of the biological or adopted child or children and if they are above 7 years of age. Adoption decree, if the couple have adopted child or children earlier. Divorce or legal separation decree in case of single PAP(if applicable). Letter from close relative of single PAP stating that in the event of any unforeseen circumstance, the relative would take care of the child. Copy of the passport of PAPs and in case the parents do not have passport ,undertaking to that effect. Referral and Acceptance The SAA shall identify a child for referral and seek the approval of the Adoption Committee (an internal committee set up by the SAA consisting its Secretary/Managing Trustee, a senior professional social worker, a visiting Medical Officer and one other functionary of the Agency) for assignment of the child.
The SAA shall make best efforts to assign a child as per the description given by the PAP(s), if any. The SAA shall then advise the PAP to see the child physically so that they can indicate their acceptance. Should they so desire the PAP may get the child medically examined by their own medical practitioner. The Child Study Report and Medical Examination Report of the matched child shall be forwarded by the SAA to the PAP(s) for acceptance and this may be called a referral. If the prospective parents decide to adopt the referred child, the PAP shall indicate their formal acceptance by signing on the Child Study Report and Medical Examination Report. This will be done within a period of ten days. In case the referred child is not acceptable, a maximum of two other children shall be proposed to them at a given time. In case a matching does not take place, the PAPs shall be eligible for reconsideration only after a lapse of three months from the date on which the last child was shown to them.9
In the case of placement of children of the age of seven years and above, written consent of the child for the proposed placement shall be obtained. If the child cannot read and write, verbal consent can be taken in the presence of the Adoption Committee who shall record the same and take the signature or thumb impression of the child on the recorded statement. The date on which the consent of the child is obtained shall be clearly indicated in the Statement.
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(b) any property which vested in the adopted child be before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth. (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption. Comment: On adoption, adoptee gets transplanted in adopting family with the same rights as that of natural-born son. Adopted child becomes coparcener in Joint Hindu Family property after severing all his ties with natural family.11 Right in property after adoption An adoptee can take only that property to his adoptive family from his birth family which is already vested in the adoptee prior to adoption by inheritance or by partition in the natural family or as sole surviving coparcener as he becomes its absolute owner. Clause (b) of the proviso to section 12 cannot be attracted when the property has not been vested in him and is still a fluctuating coparcener property. 12 Vested property Vested property in the context of clause (b) of the proviso to section 12 means property in which indefeasible right is created, i.e., on no contingency it can be defeated in respect of particular property.13
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Basavarajappa v. Gurubasamma , (2005) 12 SCC 290. Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189 13 Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189.