After marriage, parents jointly file petition to adopt wife’s child

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dearpao

Dear PAO,
I have an illegitimate son with a married man. He was duly acknowledged by his father in his birth certificate and is using the latter’s surname. I am already separated with the father of my son and he has not contacted me or has given financial support for our child. I am now in a relationship with another man and we are planning to get married soon.

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My boyfriend wants to adopt my son so he can also use his surname once we are married. He said that he does not want our son to be teased because his surname will be different from ours. Is this possible?
Anne

Dear Anne,
Adoption is defined as a juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation (Arturo M. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines: Volume One (1990 edition), page 554). It is also a means of elevating the status of an illegitimate child who was born of parents who have legal impediments to marry at the time of his conception, to that of a legitimate child.

The intention of your boyfriend to adopt your illegitimate child once you are married is highly commendable. If granted, your son will be considered as you and your husband’s legitimate child and will be entitled to use the surname of your husband. Because of this, your son will be saved from being in the unlikely situation of having a different surname with the rest of your legitimate family.

After your marriage, you and your husband may jointly file a petition for adoption of your son, or you may file this alone provided your husband has signified his consent thereto (Section 7, Republic Act (R.A.) No. 8552). The petition shall be filed with the Family Court of the province or city where you reside (Section 6, New Rule on Adoption). Your petition for adoption shall be verified and shall specifically state in the heading that you are also applying for the change of surname of your son (Section 7, id.). You need to secure the consent of your son to the adoption if he is already ten (10) years old or over. Moreover, since your son was duly acknowledged by his biological father, you also need to secure the latter’s consent to the adoption. However, in the case of Cang vs. Court of Appeals (GR No. 105308, September 25, 1998), the Supreme Court of the Philippines held that the requirement of written consent can be dispensed with if the parent, whose consent cannot be obtained, has abandoned the child or is “insane or hopelessly intemperate.” In this case, the court may still acquire jurisdiction over the adoption case as long as the petition alleges facts sufficient to warrant exemption from the requirement.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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