Bar Q and A #14

1.) True or False A dead child can be legitimated

TRUE. To be legitimated, the law does not require a child to be alive at the same time of the marriage of his or her parents. (Art. 177, FC) Furthermore, Art. 181 of the Family Code which states that “The legitimation of children who died before the celebration of marriage will benefit their descendants,” does not preclude instances where such legitimation will benefit no one but the child's ascendants, or other relatives.

2.) Spouses Esteban and Maria decided to raise their two (2) nieces, Faith and Hope, both minors, as their own children after the parents of the minors died in a vehicular accident. Ten (10) years after, Esteban died. Maria later on married her boss Daniel, a British national who had been living in the Philippines for two (2) years. With the permission of Daniel, Maria filed a petition for the adoption of Faith and Hope. She did not include Daniel as her co- petitioner because for Maria, it was her former husband Esteban who raised the kids. If you are the judge, how will you resolve the petition?

I will dismiss the petition for adoption. The rule is that the husband and wife must jointly adopt and there are only three recognized exceptions to joint adoption by the husband and wife:

1) if one spouse seeks to adopt the legitimate child of the other;

2) if one spouse seeks to adopt his or her own illegitimate child;

3) if the spouses are legally separated. The case of Maria and Daniel does not appear to fall under any of the recognized exceptions, accordingly the petition filed by the wife alone should be dismissed.

3.) Honorato filed a petition to adopt his minor illegitimate child Stephanie, alleging that Stephanie’s mother is Gemma Astorga Garcia; that Stephanie has been using her mother’s middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanie’s middle name be changed from "Astorga" to "Garcia," which is her mother’s surname and that her surname "Garcia" be changed to "Catindig," which is his surname. This the trial court denied. Was the trial court correct in denying Hororato’s request for Stephanie’s use of her mother’s surname as her middle name? Explain.

No, the trial court was not correct. There is no law prohibiting an illegitimate child adopted by his natural father to use as middle name his mother's surname. The law is silent as to what middle name an adoptee may use. In the case of In re: Adoption of Stephanie Nathy Astorga Garcia (G.R. No, 148311, March 31, 2005), the Supreme Court ruled that the adopted child may use the surname of the natural mother as his middle name because there is no prohibition in the law against it. Moreover, it will also be for the benefit of the adopted child who shall preserve his lineage on his mother’s side and reinforce his right to inherit from his mother and her family. Lastly, it will make the adopted child conform with the time-honored Filipino tradition of carrying the mother’s surname as the person’s middle name.

4.) Spouses Primo and Monina Lim, childless, were entrusted with the custody of two (2) minor children, the parents of whom were unknown. Eager of having children of their own, the spouses made it appear that they were the children’s parents by naming them Michelle P. Lim and Michael Jude Lim. Subsequently, Monina married Angel Olario after Primo’s death. She decided to adopt the children by availing the amnesty given under R.A. 8552 to those individuals who simulated the birth of a child. She filed separate petitions for the adoption of Michelle, then 25 years old and Michael, 18. Both Michelle and Michael gave consent to the adoption. The trial court dismissed the petition and ruled that Monina should have filed the petition jointly with her new husband. Monina, in a Motion for Reconsideration argues that mere consent of her husband would suffice and that joint adoption is not needed, for the adoptees are already emancipated. Is the trial court correct in dismissing the petitions for adoption? Explain.

Yes, the trial court was correct. At the time the positions for adoptions were filed, petitioner had already remarried. Under the law, husband and wife shall adopt jointly, except in cases enumerated in the law. The adoption cases of Michelle and James do not fall in any of the exceptions provided in the law where a spouse is permitted to adopt alone. Hence, Monina should adopt jointly with her husband Angel. (Adoption of Michelle P. Lim, G.R. Nos. 168992-93, May 21, 2009)

5.) 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?

1) 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 doubtful that a court can still resolve the question of custody over one who is sui juris and not otherwise incapacitated.

2) Carol may file an action to deprive Norma of parental authority under Art. 231 of the Family Code. Or file an action for the rescission of the adoption under Article 191 in relation to Art. 231 (2) of the Family Code.

6.) 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?

It depends. If Tom and Sarah have been residing in the Philippines for at least 3 years prior to the effectivity of RA 8552, the petition may be granted because the American husband is not qualified to adopt.

While the petition for adoption was filed in 1990, it was considered refiled upon the effectivity of RA 8552, the Domestic Adoption Act if 1998. This is the law applicable, the petition being still pending with the lower court.

Under the Act, Sarah and Tom must adopt jointly because they do not fall in any of the exceptions where one of them may adopt alone. When husband and wife must adopt jointly, the Supreme Court has held in a line of cases that both of them must be qualified to adopt. While Sarah, an alien, is qualified to adopt under Section 7(b)(1) of the Act for being a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity, Tom an alien, is not qualified because he is neither a former Filipino citizen, nor married to a Filipino. One of them not being qualified to adopt their petition has to be denied. However, if they have been residents of the Philippines three years prior to the effectivity of the Act and continues to reside here until the decree of adoption is entered, they are qualified to adopt the nephew of Sara under Section 7(b) thereof, and the petition may be granted.

7.) 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 alien 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?

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, G.R. No. 92326, January 24, 1992)

8.) 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.

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).

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, G.R. No. 94147, June 8, 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.

9.) 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. b) Would your answer be the same if they sought to adopt Eva's illegitimate daughter? Explain. c) Supposing that they filed the petition to adopt Vicky in the year 2000, will your answer be the same? Explain.

a) Yes, the position of the government is tenable. Foreigners are disqualified to adopt unless they fall in any of the exceptions provided for in the law. Eva and Paul are both foreigners. Eva, Falls in one of the exceptions. She is qualified to adopt because she is a former Filipino citizen who wishes to adopt a relative by consanguinity. Unfortunately, Paul is not qualified to adopt because he does not fall in any of the exceptions. Hence, they cannot adopt jointly. When husband and wife are adopting jointly, both of them must be qualified to adopt in their own right Eva cannot, alone by herself, adopt her niece because husband and wife must adopt jointly unless they fall in any of the exceptions provided for in the law. They cannot adopt separately because they do not fall in any of the exceptions. Hence, whether separately or jointly, Eva and Paul cannot adopt Vicky in the Philippines. (Domestic Adoption Law [RA 8552])

b) No, my answer would be different. Eva is qualified to adopt her illegitimate daughter, because she falls in one of the exceptions that allow foreigners to adopt. She is a former Filipino citizen adopting her relative by consanguinity. Eva can adopt separately her illegitimate child because her case is also an exception to the rule that husband and wife should adopt jointly.

c) Yes, my answer will be the same. The new Law on Domestic Adoption allows a foreigner to adopt in the Philippines if he has been residing in the Philippines for at least 3 years prior to the filing of the petition unless the law waives that residency requirement. Paul and Eva have not resided in the Philippines for the last 3 years. However, Eva will qualify for waiver because she was a former Filipino citizen who wishes to adopt a relative by consanguinity within the 4th degree. Unfortunately, Paul will not qualify to adopt because he does not fall in any of the instances for waiver to apply. They cannot adopt jointly because one of them is not qualified. Neither may Eva adopt alone because she does not fall in any of the exceptions that allow husband and wife to adopt separately.

10.) May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as the middle name?

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)