SPECIAL PROCEEDINGS

Herrera Notes on Adoption

Adoption has been defined as a juridical act which creates between two persons a relationship similar to that which
results from legitimate paternity.
Adoption is a juridical act, a proceeding in rem24 which creates between the two persons a relationship similar to
that which results from legitimate paternity and filiation.
Adoption is also a proceeding in rem which no court may entertain unless it has jurisdiction not only over the
subject matter of the case and over the parties but also over the res, which is the personal status of the parties. Our
Civil Code adheres to the theory that jurisdiction over the status of a natural person is determined by the latter's
nationality. Personal status, in general, is determined by and/or subject to the jurisdiction of the domiciliary law. This
perhaps, is the reason why our Civil Code (now Family Code) does not permit adoption by aliens (as a general rule).
In adoption, as a proceeding in rem, constructive notice, such as publication duly made is enough where the
residence of the parents is unknown. Notice moreover is not required in adoption cases in regard to the abandoning
parent.
Effect of Non-Observance of Adoption Proceedings: It has become a practice in recent times for people who want to
avoid the expense and trouble of a judicial adoption simply to register the child as their supposed child in the civil
registry. However, registration of a child in his or her birth certificate as the child of the supposed parents is not a
valid adoption, does not confer upon the child the status of an adopted child and the legal rights of such child, and
even amounts to a simulation of the child's birth or falsification of his or her birth certificate, which is a public
document.
RESCISSION OF ADOPTION ONLY BY THE ADOPTEE. Since the adoption is for the best interests of the adoptee, it is
only the latter and not the adopter who can rescind the adoption. Sections 19, 20, 21, 22, 23 and 24 of the
proposed Rule provide for the procedure on the rescission of adoption. Also specified are grounds for rescission,
period of filing the petition, the venue of the petition, and the action of the court in the event the adopter fails to
answer, the contents of the judgment and its service upon the civil registrar.
WHEN PARENTAL CONSENT OF THE PERSON TO BE ADOPTED MAY BE DISPENSED WITH
Where a three-day-old child was declared abandoned by an unknown parent, there is no longer any legal need to
require the written consent of such parent of the child to the adoption. Parental consent required by the law in
adoption refers to parents who have not abandoned their child. Accordingly, one to whom such child was given by
its mother, who does not wish to be identified, is considered said child is considered abandoned.
In Cang v. Court of Appeals, the Court after adverting to the earlier laws on adoption held that written consent of
the natural parent is indispensable for the validity of the decree of adoption. Nevertheless, the requirement of
written consent can be dispensed with if the parent has abandoned the child or that such parent is "insane or
hopelessly intemperate." In reference to abandonment of a child by his parent, the act of abandonment imports
"any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental
claims to the child." It means "neglect or refusal to perform the natural and legal obligations of care and support
which parents owe their children." (id.) * * * Physical estrangement alone, without financial and moral desertion, is
not tantamount to abandonment. While admittedly, petitioner was physically absent as he was then in the United
States, he was not remiss in his natural and legal obligations of love, care and support for his children. He
maintained regular communication with his wife and children through letters and telephone. He used to send
packages by mail and catered to their whims.
Parental Authority during Trial Period: Under Article 35 of the Child and Youth Welfare Code, parental authority is
provisionally vested in the adopting parents during the period of trial custody, i.e., before the issuance of a decree
of adoption, precisely because the adopting parents are given actual custody of the child during such trial period.
Where the trial custody had not yet begun or had already been completed at the time of a quasi-delict committed
by the child to be adopted, the adopting parents cannot assume any liability therefor. Accordingly, his natural
parents should be joined as indispensable parties to the suit for damages.
Adoption Strictly Personal Between Adopter and Adopted: The relationship established by adoption is limited solely
to the adopter and the adopted and does not extend to the relatives of the adopting parents or of the adopted child
except only as expressly provided by law. Hence, no relationship is created between the adopted and the collaterals
of the adopting parents. As a consequence, the adopted is an heir of the adopter but not of the relatives of the
adopter.1 Accordingly, if the adopting parent should die before the adopted child, the latter cannot represent the
former in the inheritance from the parents and ascendants of the adopter. The adopted child is not related to the
deceased in that case because the filiations created by fiction of law is exclusively between the adopter and the
adopters. By adoption, the adopters can make for themselves an heir but they cannot thus make one for their
kindred.
Name of the Adopted Child: An adopted child shall bear the surname of the adopter. The change of surname of the
adopted child however is more of an incident rather than the object of adoption proceedings. The act of adoption

fixes a status, viz., that of parent and child. More technically, it is an act by which relations of paternity and filiation
are recognized as legally existing between persons not so related by nature. It has been defined as the taking into
one's family the child of another as son or daughter and heir and conferring on it a title to the rights and privileges
of such. Nonetheless the adopted child may petition the court for the use of his former name where his adoptive
parents have consented to the same.6 f. Heirs of the Adopted Child Under Article 190 of the Family Code, the
following successional rules shall be observed with regard to an adopted child: (1) Legitimate and illegitimate
children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance
with the ordinary rules of legal or intestate succession; (2) When the parents, legitimate or illegitimate, or the
legitimate ascendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be
inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the
illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares,
one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the
adopters; (4) When the adopters concur with the illegitimate and the surviving spouse of the adopted, they shall
divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the
surviving spouse and one-third by the adopters; (5) When only the adopters survive, they shall inherit the entire
estate; and (6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or
intestate succession shall apply.