Opinion

Common mistakes on adoption petitions

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

February 4, 2024 | 12:00am

Whenever a couple wants to petition an adopted child from the Philippines, several requirements must be met before they may file that petition. If the petition is filed too early or before they comply with all the requirements, the petition will likely be denied.

The basic requirements are:

• Adopt before the child’s 16th birthday. Ordinarily, this means obtaining the final adoption order/decree before the child’s 16th birthday. For the Philippines, it could be based on the filing date of the petition.

• Have two years of LEGAL custody. Ordinarily, legal custody begins from the date of the adoption order/decree. In the Philippines, legal custody is established from the date the petition is filed, which is a tremendous benefit to Filipinos, as the two-year legal custody is running while the adoption is pending.

• Have two years of PHYSICAL custody. This means living under the same roof with the adoptive child outside the US for at least two years. This requirement is the most difficult to comply with because people have jobs and obligations in the US, and I know it’s hard to simply uproot themselves and move back to the Philippines. But this requirement must be met, and if the information and documentation on living with the child is not provided, the US Citizenship and Immigration Services (USCIS) will ask you to provide proof.

The two years need not be in a single stretch. However, “mere visits” will not count towards the two years of physical custody. So, if a person goes back to the Philippines for a two-week or one-month vacation, that may only be a “visit,” as opposed to living with the child. Count on at least five to six months at a time to constitute living with the child.

Note: If the child is considered an orphan, it is not required that the adoptive parents live with the child for at least two years. However, they would have to go through a different procedure under the Hague Convention. This article does not deal with a Hague Convention orphan adoption.

• The adoptive parents must exercise primary parental control. Many Filipino adoptions are of family members, such as grandchildren, nieces, nephews, etc. Ordinarily, the biological parents should no longer have contact with the adopted child. If the adopted child continues living with the biological parents or has substantial contact with the biological parents, it could create problems and possible denials. It could be compared to someone who divorces a Filipino spouse and marries a US citizen, but keeps living with the Filipino spouse. In that case, it would look like a fixed marriage, as you are married to a US citizen but still living with your ex-spouse.

In the same way, if a child continues to live with their biological parents, it could look like a fixed adoption. I have seen cases where the embassy will send investigators to the neighborhood to check on the living arrangements of the child and determine if they are living with the biological parents and/or whether the adoptive parents are exercising primary parental control.

Successfully petitioning an adopted child could be very difficult and complex, especially in terms of meeting the US immigration requirements. That’s why I would suggest that if you are considering adopting a child and you believe you meet the requirements listed above, you should consult with an immigration attorney.

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