Adoption of a child by one of the spouses: how to consolidate family ties at the legislative level

Imagine a family where a child happily plays in the yard with his or her mom or dad. She does not know that one of her parents is not her biological relative. But it doesn’t matter to her, because they are her real parents who love, care and support in everything. When everything is harmonious in the family, the only thing that can add legal certainty to this idyll is the adoption of a child by one of the spouses. This procedure allows you to officially consolidate family relations, protect the rights of the child and ensure its future.
Lawyers of the “Repeshko and Partners” Bar Association comment on the nuances that accompany this process and recommend how to make adoption not only a legal, but also a spiritual victory for the entire family.
Modern realities shape the demand for some individual legal services. Yes, one of the “hit” cases that have been considered by the courts in the last two years are cases in which one of the spouses – usually a man, adopts a child or several children of the second spouse – usually a woman. In our opinion, absolutely all parties benefit from this situation! The state does not need to pay a survivor’s pension or social benefits for a single mother, a man sometimes receives three children at once, which gives him the right to deferment from mobilization, or brings him closer to the deferment for the last step – the birth of a third child, and a woman receives a family member , on whom it is guaranteed that the father’s responsibilities can be entrusted – from moral and physical development to the payment of alimony.
Let’s start with the fact that it is possible to adopt only a child whose father is absent. Such cases may be the following:
- The child’s father is dead or has been declared dead, as evidenced by a relevant death certificate;
- The child’s father is recognized as missing or incapacitated if there is a corresponding court decision;
- The father of the child has been deprived of parental rights, as there is a relevant court decision and a note has been made in the act record of the child’s birth;
- When an act record about the father is made in the birth certificate in accordance with the requirements of the Family Code of Ukraine, which states: “When a child is born to a mother who is not married, in cases where there is no joint statement of the parents, a statement of the father or a court decision, the record about the child’s father in the Birth Registration Book is carried out according to the surname and citizenship of the mother, and the name and patronymic of the child’s father are recorded on her instructions.” In such a case, you need to have a full extract from the State Register of Civil Status Acts of Citizens regarding the birth certificate, which is taken at the state RATS department (now you can order it at any one, not only at the one where the child was registered).
If the father exists only as an entry in the child’s birth certificate, and there is a person who wants and is ready to take responsibility for the child’s life, it is necessary to start with the deprivation of parental rights of the child’s natural father. This procedure is exclusively judicial because of the claim for deprivation of parental rights and with the conclusion of the service for children’s affairs about the expediency of such a step.
The adoption procedure itself takes place exclusively in court, and the case is considered by the court exclusively at the place of residence of the child. Only the child can be adopted, and the legal status of the child belongs to a person until he reaches the age of majority. This is a general rule, but there may be exceptions to it.
The interested person must involve the children’s service of the relevant territorial community in which the (registered) child who wishes to be adopted lives, to participate in the case. The guardianship body must submit a conclusion to the court on the feasibility of adoption and its compliance with the child’s interests.
The following must be added to the conclusion of the guardianship authority:
- an act of inspection of the applicant’s living conditions, drawn up at his place of residence;
- child’s birth certificate;
- a medical report on the child’s health, physical and mental development;
- in the cases established by law, the consent of the parents, guardian, custodian of the child, health care institution or educational institution, as well as the child himself for adoption.
It should be noted that the procedure for adopting a child by one of the spouses differs from the procedure for adopting orphans from state homes and is usually much faster, and both the court and the children’s service are generally happy to provide the child with a complete family. But, before going to court, you need to collect a certain list of documents, and some of them are listed in the mandatory list of the Civil Procedure Code.
The following documents must be submitted to the court:
- Copies of passports and RNOCPP codes of the mother and the applicant;
- A copy of the marriage certificate;
- A copy of the birth certificate of the child to be adopted;
- A copy of the birth certificate of the joint child or children (if available)
- Copies of extracts from the register of the territorial community on the registration of the applicant, the mother and the child to be adopted;
- Copies of the documents confirming the absence of the biological father mentioned above: death certificate, court decision on recognition of unknown absence or incapacity, court decision on deprivation of parental rights, full extract from the act record;
- medical opinion on the applicant’s state of health;
- a copy of the applicant’s certificate from the place of work indicating the salary or a copy of the income declaration;
- a copy of the applicant’s employment book;
- copies of all diplomas on education (special and higher),
- a copy of the document confirming the right of ownership or use of the applicant’s residential premises;
- a notarized statement of the mother for consent to the adoption of the child;
- a copy of the applicant’s certificate on the presence/absence of a criminal record;
- a copy of the applicant’s certificate of presence/absence of stay in the dispensary register at the drug and psycho dispensary;
- a copy of the medical report on the health status of the child to be adopted;
This list is not exhaustive and depends on the specific situation.
The law clearly establishes the cases when persons who:
- limited in capacity;
- recognized as incompetent;
- are deprived of parental rights, if these rights have not been renewed;
- were adoptive parents (guardians, custodians, adoptive parents, foster parents) of another child, but the adoption was canceled or declared invalid (custody, guardianship or activity of a foster family or a family-type orphanage was terminated) due to their fault;
- are registered or undergoing treatment in a psychoneurological or narcological dispensary;
- abuse alcohol or drugs;
- do not have a permanent place of residence and permanent earnings (income);
- suffer from diseases, the list of which is approved by the central body of executive power, which ensures the formation of state policy in the field of health care;
- are foreigners who are not married, except when the foreigner is a relative of the child;
- were convicted of criminal offenses against life and health, will, honor and dignity, sexual freedom and sexual integrity of a person, against public safety, public order and morality, in the sphere of circulation of narcotic drugs, psychotropic substances, their analogues or precursors, as well as for crimes provided for in Articles 148, 150, 150-1, 164, 166, 167, 169, 181, 187, 324, 442 of the Criminal Code of Ukraine, or have an outstanding or unexpunged criminal record for committing other criminal offenses;
- due to their state of health, they need constant external care;
- are stateless persons;
- are married to a person who cannot be an adopter.
There are other restrictions in the law that apply to adoption:
- The adopter of a child can be a legally competent person no younger than twenty-one years of age, except when the adopter is a relative of the child.
- An adoptive parent can be a person who is older than the child he wishes to adopt, by at least fifteen years.
- Adopters cannot be persons of the same sex.
- If a child has only a mother, it cannot be adopted by a man with whom its mother is not married. If the child has only a father, he cannot be adopted by a woman with whom he is not married.
Another mandatory point is the consent of the child to be adopted. Adoption of a child requires her consent if she has reached such an age and level of development that she can express it. The child’s consent to its adoption is given in a form that corresponds to its age and state of health. The child must be informed about the legal consequences of adoption. Adoption is carried out without the consent of the child, if he is not aware of the fact of adoption due to age or health. The child’s consent to adoption is not required if he lives in the adoptive family and considers them his parents. Usually, the children’s service is directly involved in finding out the child’s opinion, but in addition, the court may also express a desire, depending on the existing situation, to listen to the child’s opinion regarding his adoption.
An application for the adoption of a child must contain: the name of the court to which the application is submitted, the name and place of residence of the applicant, as well as the surname, first name, patronymic, age of the child to be adopted, his place of residence, information about the child’s health. An application for the adoption of a child may also contain a request to change the surname, first name, patronymic, date, place of birth of the child, to register the applicant as the child’s mother or father.
The decisive part of the court decision will look approximately as follows:
“Allow Pyotr Ivanovych Sidorenka, born on April 11, 1984, a citizen of Ukraine, to adopt a minor Kvitko Anna Anatolyivna, born on October 3, 2019, and to enter in the act record of the birth of Kvitko Anna Anatolyivna on October 23, 2019, made on October 23, 2019 under No. 310 by the Executive Committee of the Veselyvska city council of the Beloved district of the Kyiv region following changes: in the column “surname” instead of “Kvitko” write “Sydorenko” in the column “patronymic” instead of “Anatolyivna” write “Petrivna”, the child’s name is “Hanna” and the date of birth “October 3, 20198″ of the year” should be left unchanged, in the column “information about the father” instead of “Kvitko Anatoliy Oleksandrovych” write: father – “Sydorenko Petro Ivanovich”, other entries should be left unchanged.”
As for the final registration of the entire procedure, the adoption is considered to be carried out from the day the court decision enters into force. To make changes to the legal record of the birth of an adopted child or an adult, a copy of the court decision is sent to the state registry of civil status acts at the place of the decision
After that, a new Birth Certificate of the child is issued, taking into account all these changes, by the state registration body of acts of civil status of Ukraine. At the same time, the Birth Certificate, which was issued earlier, is annulled.
Documents regarding the adoption of a child by one of the spouses of the other spouse are kept by the children’s affairs service until the adopted child reaches 18 years of age, after which they are destroyed, and the corresponding act is drawn up.
It should be noted that the potential adopter must remember that by taking this step, you receive a child in the full legal sense – in the event of a divorce, alimony and additional expenses must be paid, in case of death, the property will be inherited by such a child on the same level as blood relatives and responsibility for non-fulfilment of parental duties and for damage caused to the child will also be from the natural father.