Letter to a Lawyer

Dear Attorney,

I hope this letter finds you well. I am writing to seek your legal advice regarding a matter of personal importance. I have been married to my husband for 11 years. Before my current marriage, I had a son, who is now 14 years old, from a former partner with whom I was not married. My son currently uses his biological father's surname.

For over 13 years, there has been no communication between my son's biological father and me. Neither I nor my son's father has made any effort to establish contact during this time. My husband has expressed his desire to adopt my son and change my son's surname to his.

Given the circumstances, I would like to understand the legal process and requirements for my husband to adopt my son, particularly regarding whether my son's biological father's consent is required in this situation. I am also interested in understanding the process for changing my son’s surname once the adoption is completed.

Your guidance on how to proceed with this matter would be greatly appreciated. I look forward to hearing your legal opinion on this.

Sincerely,

A Concerned Mother

Adoption and Change of Surname of a Minor Child in the Philippines: Legal Considerations and Process

Adopting a child in the Philippines, especially when the child already has a biological parent not married to the prospective adoptive parent, involves several legal complexities. The process is rooted in the provisions of the Domestic Adoption Act of 1998 (Republic Act No. 8552), supplemented by various family law principles and jurisprudence regarding parental authority, child welfare, and the right to a name. Below is a thorough discussion of the legal framework governing adoption and surname change in cases like the one described.

1. Legal Basis for Adoption in the Philippines

In the Philippines, adoption is primarily governed by Republic Act No. 8552, known as the Domestic Adoption Act of 1998. The law establishes the procedure for legally adopting a child and confers upon the adopted child the same rights and responsibilities as if they were a legitimate child of the adoptive parent(s).

Adoption creates a new legal relationship between the child and the adoptive parent, severing the legal ties between the child and their biological parent(s). This includes transferring parental authority, rights of inheritance, and obligations to the adoptive parents. Importantly, it also provides the adopted child with the option to change their surname to that of the adoptive parent.

2. Who Can Adopt?

Section 7 of the Domestic Adoption Act specifies who can adopt. The primary requirements include:

The adoptive parent must be of legal age.
The adoptive parent must be at least 16 years older than the adoptee, although this requirement may be waived in cases where the adopter is the biological parent’s spouse.
The adoptive parent must have the legal capacity to act and assume parental authority over the child.
The adoptive parent must be in a position to support and care for the child.
The adoptive parent must not have been convicted of a crime involving moral turpitude.

In this case, the stepfather—being the husband of the child’s mother—qualifies to adopt the child under these provisions. The law explicitly allows a spouse to adopt the child of his or her partner, which is the situation in question.

3. Consent of the Biological Parent

One of the key considerations in the adoption process is the issue of consent. The law mandates that consent must be obtained from:

The adoptee, if 10 years of age or older.
The biological parent(s) of the child, unless such parental authority has been terminated by the court or through other legal mechanisms.

In cases where the biological father is not married to the child’s mother, and he has not been involved in the child’s life, determining whether his consent is required for the adoption becomes crucial.

Absence of Communication and Abandonment

Under Philippine law, the court may dispense with the biological father’s consent if certain conditions are met. One of these conditions is abandonment. Abandonment is defined by the Supreme Court as the failure of a parent to perform his or her parental duties for a period of time without justifiable cause, demonstrating an intention to sever the parental relationship.

In the given scenario, where the biological father has not communicated with the child or the mother for 13 years, it is possible that the court would find that he has abandoned the child. If abandonment is established, the court may dispense with the requirement of the biological father’s consent. However, it is crucial to present evidence of abandonment, such as affidavits, testimonies, or other documents that demonstrate the absence of the father’s involvement in the child’s life.

Efforts to Notify the Biological Father

Even if abandonment is assumed, the court typically requires that the biological father be notified of the adoption proceedings. The court may require that notice be served through publication if the biological father cannot be located, ensuring that all possible steps are taken to protect his rights before adoption is granted.

4. The Adoption Process

Once the issue of consent is resolved, the adoption process involves several steps:

Filing of a Petition for Adoption
The prospective adoptive parent (the stepfather in this case) must file a petition for adoption in the Regional Trial Court (Family Court) of the city or municipality where the adoptee resides.
Home Study Report
A social worker from the Department of Social Welfare and Development (DSWD) will conduct a home study report to evaluate the suitability of the adoptive parent. The report will assess the living conditions, financial stability, and the relationship between the adoptive parent and the child.
Supervised Trial Custody
If the court finds merit in the petition, it may issue an order for supervised trial custody. This trial period allows the adoptive parent to assume care of the child under the supervision of a social worker to ensure that the adoption will serve the best interests of the child.
Decree of Adoption
After the trial custody, if everything is satisfactory, the court will issue a Decree of Adoption, which legally recognizes the stepfather as the child’s parent, and the child will acquire the rights of a legitimate child.

5. Change of Surname

Once the adoption is granted, the adopted child may change their surname to that of the adoptive parent. Under Article 174 of the Family Code, legitimate children shall principally use the surname of their father, while adopted children are granted the same rights as legitimate children. Therefore, the child in this case, after the adoption is finalized, may use the surname of the adoptive father.

It is also important to note that, as the child is over 10 years old, his consent is necessary for any change in surname, as provided under the law. The child’s preferences should be respected, and he must be consulted before any formal changes are made.

6. Rights of the Biological Father Post-Adoption

Once the adoption is finalized, the biological father’s rights are severed. He will no longer have parental authority or any legal claim over the child. This includes losing the right to object to decisions regarding the child’s welfare, education, or other matters. Moreover, the biological father will also be released from obligations such as child support.

7. Best Interests of the Child

Throughout the adoption process, the overriding principle is the best interests of the child. The court will assess whether the adoption and the change of surname will promote the child’s welfare and development. The stepfather must demonstrate that he has formed a close relationship with the child and that adopting him would benefit the child emotionally, socially, and financially.

The social worker’s report, the child’s views (especially if over 10 years old), and the relationship between the child and the adoptive parent will be critical in ensuring that the adoption is in the child’s best interests.

Conclusion

In summary, the process for a stepfather to adopt his spouse’s child from a previous relationship is legally viable in the Philippines under the Domestic Adoption Act of 1998, provided all requirements, particularly regarding the consent of the biological father, are met. If the biological father has abandoned the child, the court may waive his consent, and the adoption can proceed with the child’s and the court’s approval. Once adopted, the child can change their surname to that of the adoptive father, ensuring full integration into the new family unit. It is recommended that the prospective adoptive parents consult with a lawyer to navigate the complexities of the legal process and ensure the best outcome for the child involved.