Wednesday, February 08, 2012

Kris Aquino and James Yap cannot adopt Bimby jointly or sequentially; only one of them can adopt Bimby

Several days ago, Kris Aquino revealed in a Boy Abunda interview that her marriage to James Yap has been declared void by a Quezon City court. Kris also revealed that, for purposes of inheritance, she is planning to adopt Bimby and her other illegitimate son, Josh.

Reason why Baby James is illegitimate

Based on misinformation, some people in Internet chat rooms and in Facebook are saying that all children born in a void marriage are illegitimate. We must distinguish:

[1] If a marriage is declared void because of Article 36 of the Family Code (“psychological incapacity”), then a child is considered legitimate under Article 54. The article states:

Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.
[2] The court declared Kris and James’s marriage void because of Article 35 of the Family Code (“lack of authority of the solemnizing officer”). As a consequence, Bimby, better known as “Baby James”, is illegitimate.

On the other hand, Josh is illegitimate because his parents, Kris and Philip Salvador, were not married.

Please read my article “Legal lessons from the Kris Aquino - James Yap breakup: legal separation, annulment, declaration of nullity, essential and formal requisites of marriage”.

Is the consent of the father of an illegitimate child required in adoption?

Section 9, paragraph (b) of RA 8552 states that the written consent of the biological parent/s is necessary. UP College of Law professor Danilo L. Concepcion in his article “Domestic Adoption: Law and Procedure” (IBP Journal, March 2009, Vol. 34, No. 1) states that the reason why RA 8552 requires such consent is that their parental authority over the child (the prospective adoptee) will be terminated.

Several women have e-mailed about this kind of situation. Either they do not know where the biological father of their illegitimate children is or the father is making things difficult for them. One woman even told me that the biological father asked her for money in exchange for his written consent.

Prof. Concepcion argues (and I agree with him) that since an illegitimate child is under the sole parental authority of the mother under Article 176 of the Family Code, then the consent of the biological father is not necessary.
Prof. Concepcion states that the problem is with the wording of the law. He says that instead of “biological parent/s” the law should have used “legal parent/s” instead.

Why should an unwed mother adopt her own child?

To a lot of Filipinos, Kris’s plan to adopt Baby James and Josh doesn’t make sense. Well, let me explain.

Legally speaking, the relationship between Kris and her children, or between any unwed mother and her child, for that matter, is illegitimate. In order for an unwed mother to legitimize her relationship with her illegitimate child, she has to file a petition under RA 8552, our domestic adoption law.

What if an unwed mother gets married subsequently to the biological father?

The legal remedy would not be adoption under RA 8552 but legitimation under Articles 177 to 182 of the Family Code (that is, if there were no legal obstacles when the child was conceived or born).

What if an unwed mother gets married to a man (not the biological father) who wants to adopt her child?

RA 8552 provides that husband and wife must adopt jointly. In this situation, the result would be (1) the relationship between the mother and the child will become legitimate, and (2) the man will acquire parental authority over the child.

The problem in this situation is when the biological father refuses to give his consent to the adoption. As I explained in my article on adoption, RA 8552 requires the consent of the biological father.

February 2011, I wrote to more than a dozen members of Congress asking them to consider filing a bill clarifying or amending RA 8552 so that the biological father’s consent will no longer be necessary. It’s now February 2012 and I still have not received any reply from these members of Congress.

Instead of waiting for a law clarifying or amending RA 8552, a mother or her husband can file a petition for declaratory relief before a competent court asking that the term “biological parent/s” be interpreted to mean “legal parent/s”.


If Kris adopts Bimby, will James Yap later on be able to adopt him?

No. Both the Family Code and RA 8552 state that, as a rule, a person who has already been adopted cannot be adopted again. The Family Code states it negatively while RA 8552 states it positively. Here’s the comparison:

Article 187, Family CodeSection 8, RA 8552
The following may not be adopted:

(1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to the adoption, said person has been consistently considered and treated by the adopter as his or her own child during minority.

(2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and

(3) A person who has already been adopted unless such adoption has been previously revoked or rescinded.
Who May Be Adopted. — The following may be adopted:

(a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption;

(b) The legitimate son/daughter of one spouse by the other spouse;

(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;

(d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority;

(e) A child whose adoption has been previously rescinded; or

(f) A child whose biological or adoptive parent(s) has died:
Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s).

Can Kris adopt Bimby without the consent of James Yap?

This issue is very interesting. RA 8552 does provide that an unwed mother can adopt her own child to raise the child’s status to that of a legitimate child. But, as I discussed above, RA 8552 also provides that the biological father’s consent is necessary. The issue of consent most often arises when the mother gets married and her husband wants to adopt her child. In this situation, courts require that the prospective adopter present the notarized affidavit of consent of the biological father.

But if Kris wants to adopt Bimby by herself, would she still need James’s consent? Kris will do a lot of women a big favor if she goes ahead with the adoption without asking for James’s consent. Perhaps then, if James refuses to give his consent, the issue can reach the Supreme Court.

Can Kris and James Yap jointly adopt Bimby?

No. RA 8552 and the Family Code speak of “joint adoption” by husband and wife.

By invoking the “best interest of the child doctrine”, can Kris and James file for Bimby’s adoption at the same time and in the same petition?

This novel and interesting possible remedy faces both practical and legal problems:

[1] Right now, James Yap only has visitation rights over Bimby. If he is able to adopt Bimby, he will have parental authority over Bimby. Will Kris agree to James being able legally to decide on all matters relating to Bimby?

[2] The Family Code speaks of parental authority in several ways:
  • an unwed mother’s exclusive parental authority over her child;
  • the spouse’s joint parental authority over their children;
  • the parental authority of a man and woman whose marriage has been declared void because of Article 36;
  • the parental authority of a man or woman whose spouse has died;
  • substitute parental authority by grandparents;
  • special parental authority of a school, its administrators, and teachers.
As you can see, the Family Code does not speak of parental authority by two unmarried persons over their common child.

If Kris adopts Baby James, will he later on be able to inherit from PNoy and the other Aquino siblings?

No. The legal effects of adoption, like the right to inherit, only apply to Kris and Baby James.

Should Kris adopt Bimby and Josh for purposes of inheritance?

It depends on whether Kris wants to get married again and have children with her husband.

[1] If Kris gets married again and has children with her husband, then she should adopt Baby James and Josh. Why? So that Article 176 of the Family Code will not apply. Under Article 176, the legitime of an illegitimate child is only 50% of what a legitimate child is entitled to. If Kris adopts Baby James and Josh, they will be able to inherit from her as legitimate children.

[2] If Kris does not plan to get married again, then she does not have to adopt Baby James and Josh. Why? Because Baby James and Josh are already protected financially by the provisions on intestate succession under the New Civil Code of the Philippines (NCC).

If Kris dies without a last will, then under Article 988 of the NCC, Baby James and Josh will inherit all of her estate. Since her parents Ninoy and Cory are dead, Baby James and Josh are her only compulsory heirs. The NCC excludes PNoy and the other siblings from inheriting from Kris. Please read my article “Heirs and inheritance (Part 3): Rights of illegitimate children when their parent dies without a last will”.

Another alternative for Kris in providing financially for Baby James and Josh is for her to execute a last will under Article 901 of the NCC; she can designate all of the so-called “free portion” to Baby James and Josh.

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