Dear Atty. Angela,
I have a 10-year-old nephew who was legally adopted by my brother and sister-in-law since he was a baby. A year ago, both my brother and sister-in-law figured in a car accident and passed away but my nephew survived. I am the only relative alive so my husband and I took over parental authority treating him like our own child. However, few weeks ago, the biological mother of my nephew called and wants her son back. I am at a loss now as I do not want to give him back. Do I have legal rights over my adopted nephew?
Grace
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Dear Grace,
Under the Family Code, regrettably, you do not have legal rights over the adopted son of your brother. Thus, the custody of the child after the passing of his adopting parents, reverts back to the biological parents.
One of the legal effects of adoption, under the second paragraph of Article 189 of the Family Code, is that the parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent, parental authority over the adopted shall be exercised jointly by both spouses.
In the case of Bartolome v. SSS, G.R. 192531 (2014), the Supreme Court pronounced that parental authority should be deemed to have reverted in favor of the biological parents in case the adopting parents die during the minority of the adopted child. The court stated, (C)onsidering that adoption is a personal relationship and that there are no collateral relatives by virtue of adoption, who would be left to look after the adopted child if the adopter passed away? The relationship established by the adoption is limited to the adopting parents and does not extend to their other relatives, except as expressly provided by law.
While I understand that you have already formed a special relationship with your adopted nephew, under the law, however, there are no collateral relatives by virtue of adoption. It is your legal and moral obligation to return him to his biological parent.
Atty. Angela Antonio