Notes on Domestic Adoption Act of 1998.

How is adoption defined?

In a petition for adoption decided by the Supreme Court (SC) entitled In the Matter of the Adoption of Stephanie Nathy Astorga Garcia[1], adoption was defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child; it 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. The Court further mentioned that the modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.

Who may adopt?

Under the law, i.e., Republic Act No. 8552, as amended otherwise known as the Domestic Adoption Act of 1998[2], as well as under the Rule on Adoption[3], there are 3 groups of people who may adopt:

(1) Filipino citizen

Any Filipino citizen 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; who is emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee*, 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.

(2) Alien

Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, 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, 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*, and that his government allows the adoptee to enter his country as his adopted child.

* The requirements on residency and certification of the alien’s qualification to adopt in his country may be waived based on the grounds provided under the law.

(3) Guardian

The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.

If the person seeking to adopt is a married person, is it enough if he/she alone files the petition for adoption?

No, it is enough for him/her to file the petition alone.

The general rule is that the husband and wife shall jointly adopt, subject only to the following exceptions.

(i) if one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or


(ii) if one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or


(iii) if the spouses are legally separated from each other.

In In Re: Petition for Adoption of Michelle P. Lim, the SC said that the use of the word "shall" in the provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As 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.[4]

In that same case, the SC denied the petition for adoption since the petitions were filed only by the wife without joining her husband. The Court further said that the Affidavit of Consent executed by the husband does not suffice. Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her husband.

Who may be adopted?

Under Sec. 8, R.A. No. 8552, as amended, and Sec. 5, Rule on Adoption, the following may be adopted:

(1) Any person below eighteen (18) years of age who has been declared available for adoption*;


(2) The legitimate child of one spouse, by the other spouse;


(3) An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy;


(4) A person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority;


(5) A child whose adoption has been previously rescinded; or


(6) A child whose biological or adoptive parents have died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parents.


(7) A child not otherwise disqualified by law or these rules.

* The certification that a child is legally available for adoption shall be issued by the Department of Social Welfare and Development (DSWD) in lieu of a judicial order, thus making the entire process administrative in nature.[5] The certification shall not be required in the following adoption proceedings:

(i) Adoption of an illegitimate child by any of his/her biological parent;


(ii) Adoption of a child by his/her step-parent; and


(iii) Adoption of a child by a relative within the 4th degree of consanguinity or affinity.[6]

What are the effects of adoption?

Article V, R.A. No. 8552, as amended provides for the effects of adoption. The SC summarized them in this wise, to wit:

Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including but not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter and adoptee to be legal and compulsory heirs of each other.[7]

May adoption be cancelled?

Yes, adoption may be cancelled or rescinded through a petition but only by the adoptee under the grounds provided for in Sec. 19, R. A. No. 8225, as amended:

(i) repeated physical and verbal maltreatment by the adopter despite having undergone counseling;


(ii) attempt on the life of the adoptee;


(iii) sexual assault or violence; or


(iv) abandonment or failure to comply with parental obligations.

The adopter may only disinherit the adoptee for causes provided in Art. 919 of the Civil Code.

What are the effects of rescission?

The following are the effects of rescission:

(i) the parental authority of the adoptee’s biological parent(s), if known, or the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated;


(ii) the reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished;


(iii) the court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate; and


(iv) succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission.[8]



[1]G.R. No. 148311. March 31, 2005.

[2] Section 7

[3] Sec. 4, A.M. No. 02-6-02-SC, 22 August 2002. [4] G.R. Nos. 168992-93, May 21, 2009. [5] Sec. 8, R.A. No. 9523, An Act Requiring the Certification of the DSWD to Declare a “Child Legally Available for Adoption” as a Prerequisite for Adoption Proceedings. [6] Sec. 4, Implementing Rules and Regulations of R.A. No. 9523. [7] Supra, note 4. [8] Sec. 20, R.A. No. 8225.

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