Dear Atty. Peachy,

My daughter Berna and her husband Dan decided to adopt a child after not having been blessed with one of their own in their seven years of marriage.

Sadly, however, when my granddaughter was just about four years old, Berna passed away because of an illness. A year after Berna’s passing, Dan had a romantic relationship with Donna, his secretary, and they eventually decided to live together. About two months ago, after only about three months of living together, Dan had a heart attack and passed away.

During Dan’s wake, my husband and I had an opportunity to talk to Donna and told her of our desire to get our granddaughter now that both of her parents were gone. To our surprise, Donna opposed our plan and insisted that she has the right over the custody of my granddaughter, allegedly as the child’s actual custodian now. She insisted that only biological grandparents and siblings of the child have a right higher than that of the child’s actual custodian. Is she correct?

My grandchild wants to stay with my husband and me and I heard from some of Dan’s relatives that Donna may only be interested in Dan’s estate which she knows will be inherited by my granddaughter as their legally adopted daughter. We are not interested in my granddaughter’s inheritance. We want the best for her.

Minda

Dear Minda,

Articles 214 and 216 of the Family Code provides that:

Article 214. In case of death, absence, or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

Article 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Article 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3) The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified.

Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.

The order of preference laid down by Article 216 is mandatory, unless special circumstances require otherwise. Before the enactment of Republic Act 11642, also known as the “Domestic Administrative Adoption and Alternative Child Care Act”, the legal relationship created by adoption extended only to the adopter and the adoptee. The relationship established by adoption does not extend to the relatives of the adopting parents or of the adopted child, except only as expressly provided for by law.

RA 11642, which was took effect on 28 January 2022, has ultimately challenged the long-standing practice of exclusivity in the realm of adoption. The new law ensures that the adopted child will not be left without relatives. Section 41 of RA 11642 specifically provides that “the legitimate filiation that is created between the adopter and the adoptee shall be extended to the adopter’s parents, adopter’s legitimate siblings, and legitimate descendants.” Under this law, the adoptee gains a family, not just a parent or parents, as he or she now assumes the role of a grandchild, a legitimate nephew or niece, a legitime sibling or even an aunt or an uncle to the adopter’s other offspring.

The adoptee is now considered the legitimate grandchild of the adopter’s parents. There is a sufficient legal basis to conclude that you and your husband, as legitimate grandparents of your granddaughter, have a higher right to exercise substitute parental authority over your granddaughter than Donna who is only her actual custodian now.

Atty. Peachy Selda-Gregorio