Understanding the Adoption Process and its Legal Effects

Posted on Dec 13, 2024 in Law & Jurisprudence

Adoption means to legally receive a child as one’s own, with all the rights, obligations, and legal requirements pertaining to a minor. Made in the interest of the child, its purpose is to provide children in distress with a safe and stable family environment.

Adopter Requirements

  • The adopter must have the legal capacity to act, and only individuals may adopt.
  • They can adopt either disabled children or children under the legal age.
  • Adoption can be done jointly or successively by both spouses.
  • If a single person is adopting, they must be more than 25 years old and at least fourteen years older than the adoptee.
  • Couples in a loving relationship analogous to marriage can also adopt together.
  • A person may be adopted after the death of the adopter if the Judge had previously given their consent.

Cases Where a Proposal by the Public Entity is Not Required

For adoption to have a true effect, a proposal by the Public Entity is generally required. However, this proposal is not required in the following cases:

  1. The child is an orphan, and the adoptive parent is a relative of the third degree by consanguinity or affinity.
  2. The adoptee is the child of the adopter’s spouse.
  3. The child has been legally under the measure of foster care for adoption for more than a year or has been under the adopter’s tutelage for the same time.

Who Can Be Adopted?

Unemancipated minors may be adopted. Exceptionally, an adult or an emancipated minor can be adopted when there has been an uninterrupted foster care situation or cohabitation that began before the adoptee turned fourteen.

Restrictions on Adoption

No one can adopt:

  1. A descendant.
  2. A relative in the second degree of the collateral line of consanguinity or affinity.
  3. A ward by their guardian until the general account of the guardianship has been approved.

Judicial Decision

Adoption is constituted by a judicial decision, taking into account the interest of the adoptee and the suitability of the adopter(s) for exercising parental authority. To start the adoption process, a prior proposal from the public entity declaring the adopter(s) ideal is required.

The process begins with an application made by the Public Entity to the Judge on behalf of the adopter. It will continue to handle acts of voluntary jurisdiction, requiring the intervention of the prosecutor, in which interested parties may act under the direction of counsel.

Consent

The Judge, the adopter(s), and the adoptee (if over twelve years old) must consent to the adoption. Consent is an express declaration of intention, conscious, voluntary, and free from wanting to adopt or accept being adopted by another person. In the absence of this, the process will be null.

The following individuals must provide consent:

  1. The adopter’s spouse, unless there is a legal separation by a final decision or by mutual agreement.
  2. The parents of the adoptee, unless they have been deprived of parental authority by a final decision or disqualified on legal grounds for such deprivation.

The agreement will be formalized either before the proposal with the appropriate entity, in a public document, or by appearance before the judge. If more than seven months have elapsed since the agreement, it will need to be renewed before the judge.

Hearing

The following individuals should be heard by the judge:

  1. Parents who have not been deprived of parental authority, when their consent is not required for adoption.
  2. The tutor and guardian(s).
  3. The adoptee, if under twelve years old and deemed to have sufficient judgment.
  4. The Public Entity, when the adoptee has been legally accepted for over a year.

Following the proposal for adoption, settlement, and hearing of the persons established by law, the adoption is formalized by a judicial decision. This decision is recorded in the civil registry alongside the foster child’s birth certificate.

Effects of Adoption

Once the adoption is finalized, all legal relationships with the adoptee’s family of origin are severed, and the adoptee is integrated into the adoptive family. If the adoptee has been adopted by a single person, they will have both of that person’s last names. In the case of adoption by two people, the adoptee’s last names will be the same as those of their new siblings. If there are no siblings, the parents decide the order of the last names.

Challenging Adoption

Adoption is irrevocable. It can only be extinguished by a court order following the exercise of an action to challenge it in an ordinary declaratory process. It is not terminated by the death of the adopter or the adoptee.

The judge may order the termination of the adoption at the request of either parent who did not intervene in the process, provided that it does not prejudice the child. The lawsuit must be filed within two years after the adoption. Adoption does not result in the loss of nationality or civil residence and extends to the property produced.