Dear Atty. Peachy,
I have been married for six months now to a Japanese national. Prior to my marriage to him, I had an illegitimate son. My husband and I plan to have our own child very soon but my husband wishes to adopt my son first. My friend told me that we have to wait until my husband has lived in the Philippines for at least three continuous years prior to the filing of the application for adoption because there is allegedly a residency requirement before a foreigner can adopt in the Philippines. My husband has only been living in the country for about a year and a half. Is there really a need to wait for another year and a half before he can adopt my son? My friend also told me that my husband and I have to jointly adopt my son? Is this correct? Why do I have to adopt my own son?
Joanna
*****
Dear Joanna,
Your friend is incorrect in saying that your husband has to establish three years of residency in the Philippines before he can adopt your son, but she is correct in saying that you and your husband have to jointly adopt your son.
The applicable law, in this case, is Section 7 of the Domestic Adoption Act of 1998 (RA 8552) which provides:
“Section 7. Who May Adopt. – The following may adopt: (b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, further, that the requirements on residency and certification of the alien’s qualification to adopt in his/her country may be waived for the following: (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or Husband and wife shall jointly adopt, except in the following cases: (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, that the other spouse has signified his/her consent thereto; or (iii) if the spouses are legally separated from each other.”
An illegitimate child of the spouse of an adopting foreigner falls within the scope of the clause “relative by consanguinity or affinity within the fourth civil degree” provided for in Section 7(b)(iii), Article III of the Domestic Adoption Act of 1998 (RA 8552), which exempts an adopting foreigner from the three-year residency requirement under the law. An illegitimate child is a relative within the first civil degree of consanguinity of his biological mother.
The adoption of your son, however, should be a joint adoption by you and your husband as likewise provided for in Section 7 of RA 8552. The joint adoption will give your son the status of a legitimate child.
Atty. Peachy Selda-Gregorio