Adoption; Use of Surname of her Natural Mother (2006)
May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as the middle name?
SUGGESTED ANSWER:
Yes, an illegitimate child, upon adoption by her natural father, can use the surname of her natural mother as her middle name. The Court has ruled that there is no law prohibiting an illegitimate child adopted by her natural father to use, as middle name, her mother’s surname. What is not prohibited is allowed. After all, the use of the maternal name as the middle name is in accord with Filipino culture and customs and adoption is intended for the benefit of the adopted [In re: Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005; Rabuya, The Law on Persons and Family Relations, p. 613].
Inter-Country Adoption; Formalities (2005)
Hans Berber, a German national, and his Filipino wife, Rhoda, are permanent residents of Canada. They desire so much to adopt Magno, an 8-year old orphaned boy and a baptismal godson of Rhoda. Since the accidental death of Magno’s parents in 2004, he has been staying with his aunt who, however, could hardly afford to feed her own family. Unfortunately, Hans and Rhoda cannot come to the Philippines to adopt Magno although they possess all the qualifications as adoptive parents.
Is there a possibility for them to adopt Magno? How should they go about it?
SUGGESTED ANSWER:
Yes, it is possible for Hans and Rhoda to adopt Magno. Republic Act No. 8043 or the Inter-Country Adoption Act, allows aliens or Filipinos permanently residing abroad to apply for inter-country adoption of a Filipino child. The law however requires that only legally free child, or one who has been voluntarily or involuntarily committed to the DSWD or any of its accredited agencies, may be subject of inter- country adoption. The law further requires that aside from possessing all the qualifications, the adoptive parents must come from a country where the Philippines has diplomatic relations and that the government maintains a similarly accredited agency and that adoption is allowed under the national law of the alien. Moreover, it must be further shown that all possibilities for a domestic adoption have been exhausted and the inter-country adoption is best for the interest of the child.
Hans and Rhoda have to file an application to adopt Magno, either with the Regional Trial Court having jurisdiction over Magno or with the Inter-Country Adoption Board in Canada. Hans and Rhoda will then undergo a trial custody for six (6) months from the time of placement. It is only after the lapse of the trial custody that the decree of adoption can be issued.
Parental Authority; Rescission of Adoption (1994)
In 1975, Carol begot a daughter Bing, out of wedlock. When Bing was ten years old, Carol gave her consent for Bing’s legal adoption by Norma and Manuel, which was granted by the court in 1990. In 1991, Carol learned that Norma and Manuel were engaged in a call-girl-ring that catered to tourists. Some of the girls lived with Norma and Manuel. Carol got Bing back, who in the first place wanted to return to her natural mother.
1) Who has a better right to the custody of Bing, Carol or Norma?
2) Aside from taking physical custody of Bing, what legal actions can Carol take to protect Bing?
SUGGESTED ANSWER:
1) a) It depends on whether or not Bing was at least 18 years old at the time Carol asserts the prerogative to take custody of Bing. If she was at least 18 years old, then she is no longer under parental authority and neither Carol nor Norma can assert the prerogative to take custody. However, if she was less than 18 years old, then Norma has a better right since the adoption by Norma of Bing terminates the parental authority of Carol over Bing.
b) The natural mother, Carol, should have the better right in light of the principle that the child’s welfare is the paramount consideration in custody rights. Obviously, Bing’s continued stay in her adopting parents’ house, where interaction with the call girls is inevitable, would be detrimental to her moral and spiritual development. This could be the reason for Bing’s expressed desire to return to her natural mother. It should be noted, however, that Bing is no longer a minor, being 19 years of age now. It is doubtfu1 that a court can still resolve the question of custody over one who is sui juris and not otherwise incapacitated.
SUGGESTED ANSWER:
2) a) On the assumption that Bing is still a minor or otherwise incapacitated, Carol may petition the proper court for resolution or rescission of the decree of adoption on the ground that the adopting parents have exposed, or are exposing, the child to corrupt influence, tantamount to giving her corrupting orders or examples. She can also ask for the revesting in her of parental authority over Bing. If However, Bing is already 19 years of age and therefore no longer a minor, it is not Carol but Bing herself who can petition the court for judicial rescission of the adoption, provided she can show a ground for disinheritance of an ascendant.
b) Carol may file an action to deprive Norma of parental authority under Article 231 of the Family Code or file an action for the rescission of the adoption under Article 191 in relation to Article 231 (2) of the Family Code.
Qualification of Adopter (2005)
In 1984, Eva, a Filipina, went to work as a nurse in the USA. There, she met and fell in love with Paul, an American citizen, and they got married in 1985. Eva acquired American citizenship in 1987. During their sojourn in the Philippines in 1990, they filed a joint petition for the adoption of Vicky, a 7-year old daughter of Eva’s sister. The government, through the Office of the Solicitor General, opposed the petition on the ground that the petitioners, being both foreigners, are disqualified to adopt Vicky.
a) Is the government’s opposition tenable? Explain.
SUGGESTED ANSWER:
The government’s position is untenable. Under paragraph 3, Article 184 of the Family Code, an alien, as a general rule cannot adopt. However, an alien who is a former Filipino citizen and who seeks to adopt a relative by consanguinity is qualified to adopt, (par. 3[a], Art. 184, Family Code)
In the given problem, Eva, a naturalized American citizen would like to adopt Vicky, a 7-year old daughter of her sister. Thus, under the above-cited provision, Eva is qualified to adopt Vicky.
b) Would your answer be the same if they sought to adopt Eva’s illegitimate daughter? Explain.
SUGGESTED ANSWER:
My answer will still be the same. Paragraph 3(a) of Article 184 of the Family Code does not make any distinction. The provision states that an alien who is a former Filipino citizen is qualified to adopt a relative by consanguinity.
c) Supposing that they filed the petition to adopt Vicky in the year 2000, will your answer be the same? Explain.
SUGGESTED ANSWER:
Yes, my answer will still be the same. Under Sec. 7(b), Art. III of the New Domestic Adoption Act, an alien who possesses all the qualifications of a Filipino national who is qualified to adopt may already adopt provided that his country has diplomatic relations with the Philippines, that he 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 has been certified 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 adopted child.
Qualification of Adopter; Applicable Law (2001)
A German couple filed a petition for adoption of a minor Filipino child with the Regional Trial Court of Makati under the provisions of the Child and Youth Welfare Code which allowed aliens to adopt. Before the petition could be heard, the Family Code, which repealed the Child and Youth Welfare Code, came into effect. Consequently, the Solicitor General filed a motion to dismiss the petition, on the ground that the Family Code prohibits aliens from adopting. If you were the judge, how will you rule on the motion? (5%)
SUGGESTED ANSWER:
The motion to dismiss the petition for adoption should be denied. The law that should govern the action is the law in force at the time of filing of the petition. At that time, it was the Child and Youth Welfare Code that was in effect, not the Family Code. Petitioners have already acquired a vested right on their qualification to adopt which cannot be taken away by the Family Code (Republic v. Miller G.R. No. 125932, April 21, 1999, citing Republic v. Court of Appeals, 205 SCRA 356).
ALTERNATIVE ANSWER:
The motion has to be granted. The new law shall govern their qualification to adopt and under the new law, the German couple is disqualified from adopting. They cannot claim that they have already acquired a vested right because adoption is not a right but a mere privilege. No one acquires a vested right on a privilege.
[Note: If the examinee based his answer on the current law, RA 8552, his answer should be considered correct. This question is based on the repealed provision of the Family Code on Adoption.]
Qualifications of Adopter (2000)
Sometime in 1990, Sarah, born a Filipino but by then a naturalized American citizen, and her American husband Tom, filed a petition in the Regional Trial Court of Makati, for the adoption of the minor child of her sister, a Filipina. Can the petition be granted?
SUGGESTED ANSWER:
(per dondee) It depends. Rules on Adoption effective August 22, 2002 provides the following;
SEC. 4. Who may adopt. – The following may adopt:
Any Filipino Citizen
a. of legal age,
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;
e. who is emotionally and psychologically capable of caring for children,
f. at least sixteen (16) years older than the adoptee,
g. and who is in a position to support and care for his children in keeping with the means of the family.
The requirement of a 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;
AnyAlien possessing the same qualifications as above-stated for Filipino nationals: Provided,
a) That his country has diplomatic relations with the Republic of the Philippines,
b) that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered,
c) that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country,
d) and that his government allows the adoptee to enter his country as his adopted child.
Provided, further, That the requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for 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 spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.
Qualifications of Adopter (2003)
Lina, a former Filipina who became an American citizen shortly after her marriage to an American husband, would like to adopt in the Philippines, jointly with her husband, one of her minor brothers. Assuming that all the required consents have been obtained, could the contemplated joint adoption in the Philippine prosper? Explain.
SUGGESTED ANSWER:
Yes, Lina and her American husband can jointly adopt a minor brother of Lina because she and her husband are both qualified to adopt. Lina, as a former Filipino citizen, can adopt her minor brother under Sec. 7(b)(i) of RA 8552 (Domestic Adoption Act of 1998), or under Art. 184 (3)(1) of the Family Code. The alien husband can now adopt under Sec. 7(b) of RA8552. The Supreme Court has held in several cases that when husband and wife are required to adopt jointly, each one of them must be qualified to adopt in his or her own right (Republic v. Toledano, 233 SCRA 9 (1994). However, the American husband must comply with the requirements of the law including the residency requirement of three (3) years. Otherwise, the adoption will not be allowed.
Successional Rights of Adopted Child (2004)
A Filipino couple, Mr. and Mrs. BM, Jr., decided to adopt YV, an orphan from St. Claire’s orphanage in New York City. They loved and treated her like a legitimate child for they have none of their very own. However, BM, Jr., died in an accident at sea, followed to the grave a year later by his sick father, BM, Sr. Each left a sizable estate consisting of bank deposits, lands and buildings in Manila. May the adopted child, YV, inherit from BM, Jr.? May she also inherit from BM, Sr.? Is there a difference? Why? Explain.
SUGGESTED ANSWER:
YV can inherit from BM, Jr. The succession to the estate of BM, Jr. is governed by Philippine law because he was a Filipino when he died (Article 16, Civil Code). Under Article 1039 of the Civil Code, the capacity of the heir to succeed is governed by the national law of the decedent and not by the national law of the heir. Hence, whether or not YV can inherit from BM, Jr. is determined by Philippine law. Under Philippine law, the adopted inherits from the adopter as a legitimate child of the adopter.
YV, however, cannot inherit, in his own right, from the father of the adopter, BM, Sr., because he is not a legal heir of BM, Sr. The legal fiction of adoption exists only between the adopted and the adopter. (Teotico v. Del Val 13 SCRA 406 [1965]).Neither may he inherit from BM, Sr. by representing BM, Jr. because in representation, the representative must be a legal heir not only of the person he is representing but also of the decedent from whom the represented was supposed to inherit (Article 973, Civil Code).
From the ANSWERS TO BAR EXAMINATION QUESTIONS in CIVIL LAW by the UP LAW COMPLEX and PHILIPPINE ASSOCIATION OF LAW SCHOOLS.
