SOLIS MEDINA

LIMPINGCO
& FAJARDO
11th Floor, East Tower, Philippine Stock Exchange Centre
Exchange Road, Ortigas Business Center
1605 Pasig City, Philippines
Tel. (+632) 634.6722 / 6788 / 6789 Fax: (+632) 634.6724
www.solismedina.com email: lawyers@solismedina.com

MEMORANDUM

For : Mr. Gerry Scotmarit

Date : 18 March 2008
Re : Adoption
x----------------------------------------------------x

I. FACTS:

Mr. Scotmarit, a British National, is married to a Filipina, whose previous marriage has
been annulled. The Filipina wife has two (2) children from the previous marriage, aged
14 and 16. The spouses and the 2 children are presently residing in Malaysia. Mr.
Scotmarit intends to adopt the 2 children of his Filipina spouse.

II. QUERY:

Under what law can Mr. Scotmarit adopt the two legitimate children of his Filipina
spouse and what steps must be undertaken to effect the adoption?

III. OPINION:

Adoption by foreigners of Filipino children may be undertaken either under the Inter-
Country Adoption Act of 1995 (R. A. No. 8043) or the Domestic Adoption Act of 1998
(R.A. No. 8552).

Based on the stated facts, Mr. Scotmarit cannot adopt the two (2) children under the
Inter-Country Adoption Act of 1995 (R.A. No. 8043). Under the said law, only a legally
free child may be the subject of inter-country adoption. 1 A legally free child is one
who has been voluntarily or involuntarily committed to the Department of Social Welfare
and Development (DSWD), in accordance with the Child and Youth Welfare Code. 2 In
Mr. Scotmarits case, since the children sought to be adopted are the legitimate children
of his Filipino wife and are neither voluntarily nor involuntarily committed to the DSWD,
they are not eligible for inter-country adoption.

1
Sec. 8, R.A. No. 8043.
2
Sec. 3(f), R.A. No. 8043.
 SOLIS MEDINA
LIMPINGCO
& FAJARDO

However, Mr. Scotmarit can adopt the 2 legitimate children of his Filipina spouse under
the Domestic Adoption Act of 1998 (R.A. No. 8552). Under Section 8(b) of the said law,
the legitimate son/daughter of one spouse may be adopted by the other spouse.

To be qualified to adopt, Mr. Scotmarit must possess the following qualifications

prescribed under R.A. 8552, to wit:

1. Of legal age;

2. In possession of full civil capacity and legal rights;

3. Of good moral character;

4. Has not been convicted of any crime involving moral turpitude;

5. Emotionally and psychologically capable of caring for the children;

6. At least sixteen (16) years older than the adopted; and

7. Is in a position to support and care for his/her children in keeping with the
means of the family.3

Under the same provision, however, the requirement of sixteen (16) year-difference
between the age of the adopter and adoptee may be waived when the adopter is the
spouse of the adoptees parent. Thus, since Mr. Scotmarit intends to adopt the
legitimate children of his Filipina spouse, the 16-year age difference no longer applies.

In addition, since Mr. Scotmarit is a British National, R.A. No. 8552 further sets the
following conditions for aliens to be able to adopt through domestic adoption:

1. That his/her country has diplomatic relations with the Republic of the
Philippines;

2. 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; and

3. 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. 4

3
Sec. 7(a), R.A. No. 8552.
4
Sec. 7(b), R.A. No. 8552.
 SOLIS MEDINA
LIMPINGCO
& FAJARDO

The exceptions5 to the requirements on residency and certification of aliens qualification

to adopt in his/her country may be waived in the following cases:

i. a former Filipino citizen who seeks to adopt a relative within the fourth (4 th)
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 (4 th) degree of consanguinity or
affinity of the Filipino spouse.

While the waiver is not automatic but discretionary upon the court, 6 Mr. Scotmarits case
clearly falls under the second exception. Hence, the requirements of residency and
certification of his qualification to adopt in his country may be dispensed with.

Likewise, the written consent of the following persons to the adoption is required:

1. The adoptees (the 2 children) because they are over ten (10) years of
age;

2. The biological parents of the adoptees;

3. On the assumption that the adopter has children,

i. The legitimate and adopted sons/daughters, ten (10) years or over

of the adopter;

ii. The illegitimate sons/daughters, ten (10) years of age or over, of

the adopter if living with said adopter and the latters spouse, if any.

A verified petition for adoption shall be filed with the Family Court of the province or city
where the prospective adoptive parents reside. 7 A copy of the verified petition is hereto
attached for your reference.

The following documents must be attached to the petition:

1. Birth, baptismal or foundling certificate, as the case may be, and school
records showing the name, age and residence of the adoptee;

5
Ibid.
6
Sta. Maria, Jr., Persons and Family Relations Law, Third Edition, 1999, pp. 607.
7
Sec. 6, A.M. No. 02-6-02-SC.
 SOLIS MEDINA
LIMPINGCO
& FAJARDO

2. Affidavits of consent;

3. Child study report on the adoptee and his biological parents;

4. If the petitioner is an alien, certification by his diplomatic or consular office

or any appropriate government agency that he has the legal capacity to
adopt in his country and that his government allows the adoptee to enter
his country as his own adopted child unless exempted under Section 4(2);

5. Home study report on the adopters. If the adopter is an alien or residing

abroad but qualified to adopt, the home study report by a foreign adoption
agency duly accredited by the Inter-Country Adoption Board; and

6. Decree of annulment, nullity or legal separation of the adopter as well as

that of the biological parents of the adoptee, if any. 8

A supervised trial custody for at least six (6) month is also required before a decree of
adoption may be issued. However, the court may, motu proprio or upon motion of any
party, reduce the period or exempt the parties if it finds that the same shall be for the
best interests of the adoptee, stating the reasons therefor. 9

An alien adopter, however, must complete the 6-month trial custody except the
following:

a. a former Filipino citizen who seeks to adopt a relative within the fourth
(4th) degree of consanguinity or affinity; or

b. one who seeks to adopt the legitimate child of his Filipino spouse; or

c. one who is married to a Filipino citizen and seeks to adopt jointly with his
or her spouse the latters relative within the fourth (4th) degree of
consanguinity or affinity.10

Thus, in the case of Mr. Scotmarit, the trial custody period may be reduced.

For your guidance and information.

8
Sec. 11, A.M. No. 02-6-02-SC.
9
Sec. 15, A.M. No. 02-6-02-SC.
10
Ibid.