Dear Atty. Shalie,

Before I got married, a child was entrusted to my care by a good friend of mine. Without hesitation, I took the child as if she were my own and in fact, treated her, and has been publicly known, as my daughter.

When I got married, my husband and I have agreed to legally adopt my daughter. However, before we even got to begin the adoption process, my husband and I found ourselves in some serious marital disputes and eventually, decided to separate ways.

We both have contemplated on filing a petition for the annulment of our marriage. While going through this unfortunate process, I have also thought of filing the petition for adoption of my daughter, as I really want to protect her rights as my child.

Will I be able to do this as a single petitioner, without the participation of my husband? Could I just merely get his consent, so I could proceed with the adoption?

Gina

Dear Gina,

While adoption proceedings are primarily for the protection of the interest and welfare of the child to be adopted, the rules cannot be disregarded to suit the adoptive parents' purpose or preferences.

Being still married to your husband, your marriage is still subsisting despite your separation. In fact, you are not allowed to file the petition for the adoption of your child without being joined by your husband.

The law is explicit, "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.

From your narration, your case does not fall under any of the exceptions provided by law. As the child to be adopted is elevated to the level of a legitimate child, it is required of the spouses to adopt jointly. It will not be sufficient for your husband to simply give his consent to the adoption, as adoption will necessarily bestow parental authority unto the adoptive parents.