An independent voice for ethical adoption
Guat Law – 1999
Ethica is in possession of an unofficial translation of the following proposed law. This translation was provided by Chris Huber of Families thru International Adoption and is posted with his permission.
Exposition of Motives
Law for Notarial Adoptions in the Voluntary Jurisdiction
The state of Guatemala, in accordance with the article 54 of the Political Constitution of the Republic, recognizes and protects the social institution of adoption. In accordance with the cited constitutional precept, the Civil Code regulate adoption in its articles 228 to 251 indicating in its article 228 in the first paragraph that “adoption is the legal act of social assistance by which the adoptive party takes a minor who is the child of another person, as their own child.
In another part, the Decree no 54-77 of the Congress of the Republic, which contains the “Regulating Law of the Notarial Process of Affairs of Voluntary Jurisdiction” which dates from 1977, amongst other notarial processes, in a specific form regulates in Chapter 6, everything pertaining to adoption in the articles 28 to 33 indicating in article 28 that “The adoption regulated in the Civil Code may be formalized pefore a Noray Public without the requirement of prior judicial approval of the diligences.
Twenty-five years after the entering into effect of this norm, it is necessary to adapt the same to the current social and legislative reality, taking into consideration that recently, by means of Decree number 50-2002, the Congress of the Republic approved the “Agreement Relative to the Protection of Children and the Cooperation in the Area of International Adoption” whose important norm should be applied in the internal area. Consequently because of the aforementioned, a mixed notarial procedure is proposed, which contains the obligation to submit to a jurisdictional organ, at the beginning of the same, the ratification before a judge, the consent of those who exercise parental custody or the legal trusteeship of the minor being given in adoption, and once the process is terminated, the judge will review the file and determine if it fullfilled all of the legal requesites to order the issuing of the corresponding public adoption deed.
For the previous mentioned reasons, this draft proposal of law that modernize the adoption process is submitted for the consideration of the Honorable Full Congress.
This present draft is comprised of 2 great titles.
The Title 1 develops the general dispositions of this social institution, the persons and dependencies that are involved in the adoption process and what is very important, it gives participation to the judge of first instance of family court and it obliges the practice of the DNA exam to indubitably establish the relationship in all of the adoption cases without any exception.
Another relevant aspect is that it creates the Register of Adoption Processes assigned to the Supreme Court of Justice which will have under its charge the register and control of adoptions completed in the country and the follow-up of the integration of the adopptio to his adoptive parents and his new environment.
The Title 2 regulates the process, indicating clearly the ability to opt for either the judicial or notarial process of adoption, the requisites that must be fulfilled at the beginning of the process, the actuation of the the family judge of first instance, the practice of the DNA test, the actuation of the Attorney General’s office (PGN) and the requesites for dictating the definitive resolution and the issuing of the public decree or interlocutory declaration that puts an end to the adoption process and the final and transitory dispositions necessary for the adequate implementation of this law.
We hope that this norm amply satisfies the expectations and that based on it, this social institution fulfills the objectives for which it was created.
THE CONGRESS OF THE REPUBLIC OF GUATEMALA
Considering
That the Political Constitution of the Republic of Guatemala recognizes adoption as a social institution through which the adopted child acquires the condition of child of the adopting partying.
Considering
That the technological advances in genetic sciences through the analysis of the DNA permits the indubitable identification of relationship between the natural parents and their minor children which makes it necessary to incorporate it as an undisputable proof in the adoption process in order to give legal security of the consanguine relationship between both.
Considering
That in order to obtain greater legal certainty, it is necessary to grant participation to the judges of primary instance of the family courts and to create a Registry of Adoption Processes, assigned to the Supreme Court of Justice with the object of intervening and making more transparent the notarial adoption process according to their respective areas of competence.
Considering
That Decree No. 54-77 of the Congress of the Republic, Law Regulating the Processing of Notarial Affairs of Voluntary Jurisdiction, in it’s 4th chapter, regulates those areas pertaining to adoption, nevertheless, said norm has ceased to respond to the legal certainty that this process requires, for which it is imperative to adapt the adoption legislation to the current reality and to the international regulations in this subject contained in the Agreement Relative to the Protection of Children and Cooperation in the Subject of International Adoption.
THEREFORE
In exercise of the attributes that are confer to it by the literal A of the article 171 of the Political Constitution of the Republic of Guatemala,
DECREES THE FOLLOWING
Law of Notarial Adoptions in the Voluntary Jurisdiction
TITLE 1
ONLY CHAPTER
GENERAL DISPOSITIONS
Article 1 – Adoption is the legal act of social assistance through which the adoptive party takes as their own child a person who is the natural child of another, formalized judicially in conformity with what is established in the Civil & Mercantile Process Code or notarially according to this present law.
Article 2- All the boys and girls who are subject to national or international adoption will enjoy the rights that the internal legislation grants them and specifically in the case of the latter, those contained in the Agreement On the Protection of Childern and Cooperation in the Area of International Adoption (in the future referred to simply as the Agreement) which has been approved by the State of Guatemala,, guaranteeing that international adoptions take into consideration the best interest of the child and the respect of fundamental human rights that are recognized by international law in such a manner that the adopted child enjoys in the receiving State, that is to say the country to which the child will be displaced, the equivalent rights as those which result from an adoption completed within this State.
Article 3- Persons and Dependencies which intervene in the notarial adoption process:
a. Natural parents or one of them in individual form. In this latter case, fulfilling that which is established in the Civil Code referring to the parental rights.
b. Tutors and Protutors in their case.
c. Adoptive party (parties)
d. Special Attorney with Representation of the Adoptors
e. Notary
f. Coordinating Magistrate of the Minors Jurisdiction
g. Judge of First Instance of Family Court
h. Judge of First Instance of Minors Court
i. Social Worker assigned to the respective Family Court
j. Attorney General’s Office (PGN)
k. Registry of Adoption Processes
Article 4- For the case of international adoptions, in addition to the persons and dependencies indicated in the preceding article and in conformance with the Agreement Relative to the Protection of Children and Cooperation in the Area of International Adoption, the State of Origin, being that in which the child to be adopted has its habitual residence, and the Receiving State, being that in which the child is going to be displaced to when the adoption process is finalized, will have intervention in the process.
Article 5- Registry of Adoption Processes. The Registry of Adoption Process, assigned to the Supreme Court of Justice, is created, whose functions will be the following.
a. Fulfill the obligations which the Agreement Relative to the Protection of Children and Cooperation in the Area of International Adoption impose on the state of Guatemala.
b. Establish, through a report, to be sent to the receiving State, when it is fitting, that the boys and girls are adoptable and that when an adequate family cannot be found in Guatemala, that the international adoption presents the advantage of giving a child a permanent family, taking into consideration the best interest of the same and the respect of their fundamental rights. Said report will contain information on the identity of the boy or girl, their ethic, religious and cultural origin, their adoptability, the social surroundings, their personal and familial evolution, their medical history and that of their family as well as about their particular needs.
c. Gather, conserve and interchange necessary information with the receiving State about the situation of the boy or girl and of the future parents in order to complete the adoption and about the evaluation of experiences in the area of international adoption.
d. Promote counseling services to assure that the natural parents or who exercises the right to give the consent for the adoption, have been adequately counseled and informed about the consequences of the same, especially about the maintenance or rupture, in virtue of the adoption, of the legal and other bonds between the boy or girl and his family, as well as establish through a report about the future adoptive parents, their identity, legal capacity and aptitude to adopt, their personal, family and medical condition , social surroundings, the motives that move them, their aptitude to assume an international adoption, as well as about the child or children they would be in conditions to take under their care.
e. Assure that the boy or girl will be authorized to enter and reside permanently in the state to which the child will be displaced in their case.
f. Register the notices which the notaries and institutions are obligated to provide about the adoptions being processed in Guatemala.
g. Install an efficient system to international cooperation in the area of international adoption, providing and requesting information about a particular adoption situation when necessary, and about the legalization of contracting states in the area of adoption as well as any other related area with the objective of protecting the children and reaching the objectives of the agreement.
h. Compile information about the adaptation of the adopted minors residents of this country or of foreign countries.
i. Register the Notarial Acts of the Revoked Adoptions.
j. Extend, at the request of the parties interested in the revocation, certification of the notarial acts that it contains.
k. Register and file the files of finalized adoptions.
Article 6- To grant the consent for the adoption, the following requisites must be completed:
a. That the Registry of Adoption Processes, assigned to the Supreme Court of Justice, has established that the boy or girl is adoptable and verified, after having adequately examined the possibility of placement in Guatemala, that an international adoption is in the child’s best interest.
b. That said Registry has assured, through it corresponding instruments, that the natural parents or to whomever has the responsibility to grant the consent for the adoption, have been suitably counseled and informed about the consequences of said consent, especially about the maintenance or rupture, in virtue of the adoption, of the legal bonds between the child and his family and that the future adopting parents are adequate and apt to adopt, that they have been suitably counseled and that the boy or girl will be authorized to enter and permanently reside in the receiving State.
c. That the registry has taken appropriate measures directly or with the cooperation of other authorities to prevent inappropriate material benefits in relation to an adoption. In any case, between the persons or institutions involved in the adoption, only cost and expenses, including reasonable professional fees, will be able to be claimed or paid. In the same way, it should be verified that the consent for the adoption has been granted freely and in writing in the corresponding legal form and that the same has not been obtained by means of payment, compensation of any kind and that it has not been revoked.
d. That the consent of the natural mother has been given after the birth of the child. Also the consent of the child being given for adoption should be considered, if according to his age and grade of maturity, he is able to express his desires and opinions.
The prior dispositions will apply when fitting to the National adoptions.
Article 7- The children subject to adoption are those that have been judicially declared abandoned and those which are given to legally established persons or institutions in a voluntary form through a notarial act by the natural parents or one of them in an individual form. In this latter case, fulfilling that which is established in the Civil Code referring to the Parental Rights.
Article 8- In the case of the absence or death of the natural parents, after these having given their consent to the adoption process, if there does not exist a family member of the child who wishes to take charge of him, the Registry of Adoption Process, after verification, will emit the corresponding resolution. Based on said resolution, the adoption process can be initiated.
Article 9- In the case of international adoptions, the competent authorities will be able to deny respective petitions when the same are manifestly contrary to the public order, taking into account he best interest of the child. In the same manner, in whatever stage of the adoption process, the tutors, parents, natural mother or father, without any responsibility, can revoke their decision to continue the process. In this case the Notary, by a notarial act, will give the minor to the appropriate person. A copy of the respective act is compulsory in a maximum time frame of 15 days to the Jurisdictional Court of Minors and to the Registry of Adoption Processes.
Article 10- The tutors, parents, natural father or mother, that in accordance with the previous article revoke their decision to give the minor in adoption, will not be able to initiate a new adoption process for this child, with the new process being fully legally null.
Article 11- During the first 5 years that follow the national or international adoption, the adoptive parents are obligated to send yearly to the Registry of Adoption Process, assigned to the Supreme Court of Justice, photos, medical and psychological reports on the adopted child with the purpose of giving follow-up to the adaptation process of the same.
Article 12- The persons or institutions legally established, authorized, and registered ni the Civil Registry and in the Registry of Adoption Process, that are dedicated to the care of minors in a state of vulnerability or abandonment, are obligated to have the adequate installations and personnel to permit the formation and physical, psychological and moral development of the minor. The control of these corresponds to the Coordinating Magistrate of the Jurisdiction of Minors.
Article 13- The notaries, at the request of the natural parents or of whomever is legal in charge of the minor, or the attorney of the adoptive parents, in their case, under their responsibility, can designate an individual person so that in the residence of this person, which must have the good physical and hygienic conditions in general, they can have in their care the minor child in process of adoption with the prior authorization of the Registry of Adoption Processes in the case of an international adoption. To emit the corresponding authorization, The Registry should verify the agreement of the institution which represents the Receiving State, that is to say, the country to which the minor will be displaced, in which the adoption process is being pursued. In no case, can the designated person have under their care more than one minor. The notary that is requested to process the adoption, is obligated to send in a time frame of 15 days, the corresponding notice of the place where the minor or minors are located to the Registry of Adoption process and to the Section of Minors of the Attorney Generals Office (PGN) being the latter in charge of the control of these.
Article 14- The attorneys for the adoptive parents are obligated to provide to the minors in the adoption process food, clothing, education, room, pediatric services, medicines as well as hospitalization when the case merits it.
Article 15- The attorney for the adoptive parents and the notary in charge of the adoption process who fail to fulfill the obligations regulated in articles 9,13,14,19,23,28 of this law will be sanctioned with a fine of four thousand to ten thousand quetzales by a denunciation by the Minors Section of the Attorney Generals Office. Once the breach is proven, the sanction will be imposed by a judge of primary instance of minors.
Article 16- When dealing with Institutions mentioned in the article 12 of this law, who have under their care or custody minors judicially declared in abandonment, the tutors will be who represents the minor during the adoption process. In addition to the tutor, the intervention of a protutor will be necessary when the minor to be adopted possesses goods.
Article 17- Revocation after the adoption. In addition to what is contemplated in the article 247 of the Civil Code, the adoption, whether it be national or international, can be revoked at the request of the notary, of any competent person or authority when it is duly proven before the respective court of minors the physical, mental and or psychological mistreatment of the adopted minor by the adoptive parents.
Article 18- In all cases the DNA test is obligatory for whomever appears in the adoptions case as the parents of the minor to be adopted and the minor to establish their relation. If a negative result were to be obtained, the Minors Section of the Attorney General’s Office pr the notary should present a denouncement before the competent authority for its investigation and the deduction of the resulting penal responsibilities. In this case, the minor will remain provisionally under the care and custody of the persons or institution that is designated by the Attorney General’s Office while a court of minors of primary instance resolves definitively.
Article 19- If the petitioner of the adoption had been the tutor of the minor and the minor has belongings, the Notary should have before him the documents which verify that the accounts of the tutelage were definitely approved and that the belongings were given to the protutor.
TITLE 2
CHAPTER 1
PROCEDURE
Article 20- The adoption regulated by the Civil Code can be processed judicially according to what is established in the Civil and Mercantile Process Code or notarily with judicial participation through what is arranged in this present law.
Article 21- Petition. To initiate the adoption process, the adoptive party must present:
a. Birth Certificate
b. Marriage certificate, if applicable
c. Lack of Penal and Police Antecedents (Criminal History Background)
d. Confirmation of employment or bank confirmation
e. Medical certificate
f. Two letters of recommendation from honorable people or prestigious institutions.
g. Social – Economic Study (Homestudy)
h. Psychological Certificate in the case of single man or woman.
i. Testimonial Declaration of 2 honorable people which accredit the good habits and moral solvency.
j. Certificate of Suitability if it were the case.
k. Favorable report prepared by the competent authority in the State receiving the minor, that is to say the country to which the same is going to be displaced in the case of an international adoption.
All of the above documents should contain the respective legalizations in the case of international adoptions. In the case of national adoptions, it will not be required of the adoptive party to present the documents established in letters j & k.
Article 22- To initiate the adoption process, the natural parent(s) should present:
a. Birth certificate of the minor
b. Birth certificate(s) of the natural parent(s) except in cases justified by a late registration of birth.
c. Legalized photocopy of their Residency Card.
d. Marriage Certificate if appropriate
e. Prints of the hands and feet of the minor
f. Fulfill the prior requisites established by the Registry of Adoption Processes.
Article 23- Once the aforementioned documents are presented and the requirements of letter f of the previous article are fulfilled, the notary in charge of the adoption process will prepare the Act of Requirement and the corresponding act in which it will verify the renouncement of the parental rights by the natural parent(s) of the minor and their consent to place him in adoption. The file which will have been formed should be submitted by the Notary to the Judge of Family Court of Primary Instance as well as give notice in a time frame of no more than 15 days to the Registry of Adoption Processes.
Article 24- Once the file is received, the Judge of Primary Instance of Family Court will set a hearing for the natural parent(s) or tutor of the mentor so they can ratify their will to place him for adoption. Said hearing should be verified in a time frame of no more than 10 days. Once the hearing is held, the Judge will appoint a Social Worker assigned to the judge so that in a time frame of no more than 20 days, they prepare the respective social-economic study. With said report, the file will be returned to the notary so that they can continue the adoption process.
Article 25- Once the DNA test has been performed on the natural parent(s) and the minor to be adopted, if said test should result positive, the notary will give a hearing to the Attorney General’s Office so that the can emit the respective Opinion of Merit, other wise it will proceed in accordance to article 18 of this law.
Article 26- Once the file is approved by the Attorney General’s Office, the notary should send the file to the Judge of Primary Instance of Family Court with the objective of determining that all of the requisites of this law have been fulfilled. In a time frame of 5 days, the judge will return the file to the notary with his resolution.
Article 27- If the study of the file by judge of Primary Instance of Family Court determines that there is some requisite contained in this law not fulfilled, he will resolve the pertinent details in order to correct the omission. The file should be returned to the notary in a time frame no greater than ten days.
Article 28- Once all of the legal requisites are fulfilled, the notary will dictate the definitive resolution declaring the adoption appropriate so that the respective instrument is authorized, in which will appear the adoptive parent or their attorney and the natural parent(s) of the child or the person who exercises the tutelage, whose testimony should be sent to the corresponding Civil Registry so that the annotations relative to the adoption are done and once the is finalized, the notary should send the file to the Registry of Adoption Processes assigned to the Supreme Court of Justice in a maximum time frame of 5 days.
Article 29- Finding the adoption legally formalized, the General Director of Immigration, when requested, will issue a passport to the adopted minor in the ordinary time frame required for this type of process.
Article 30- The competent authorities of the contracting states related in an international adoption will take all of the necessary measures so that the adopted child will receive departure authorization from his country of origin as well as entrance and permanent residence I the receiving State.
CHAPTER 2
Transitory and Final Dispositions
Article 31- Registry of Adoption Processes. The Judicial Organism will take the pertinent measures to the effect of organizing in a time frame no greater than 6 months of the entering into effect of this law, the Registry of Adoption Processes which will be assigned to the Supreme Court of Justice.
Article 32- In the case of international adoptions, in addition to fulfilling the requisites established in this present law, they should also observe everything established in the Agreement Relative to the Protection of Children and Cooperation in the Area of International Adoption as long as the child being adopted will be displaced to another country.
Article 33- The adoption processes already in process when this law takes effect should be adapted, according to the phase of the process they are in, to the dispositions and procedures established here.
Article 34- The persons or institutions legally established that are dedicated to the care of minors in a state of vulnerability or abandonment are obliged to register with the Registry of Adoption Processes assigned to the Supreme Court of Justice.
Article 35- This law annuls the chapter 6, articles 28 to 33 of the Decree number 54-77 of the Congress of the Republic, Law Regulating the Notarial Process of Affairs of Voluntary Jurisdiction.
Article 36- This law will enter into effect 90 days following its publication in the Official Newspaper.
Given in the Palace of the Legislative Organism, in the City of Guatemala the ____ day of the month of ____ of the year _______.
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