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Unofficial Translation of Proposed Law
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.
Draft of Adoption Law
Exposition of Motives
The state of Guatemala, in conformity with article 54 of the Political Constitution of the Republic, protects the social institution of adoption, declaring of social interest the protection of orphaned and abandoned children.
In concordance with the cited constitutional precept, the Civil Code regulates the adoption in the articles 228 to 251, also indicating in the first of these indicated that the adoption is a legal act of social assistance by which the adopter takes as their own child a minor who is the child of another person.
The article 239 of the same Code stipulates that this is established by public instruments after the approval of the respective steps by the competent Judge of Primary Isntance.
In its part, the decree number 54-77 of the Congress of the Republic, that contains the Regulating Law of the Notarial Process of Affairs of Voluntary Jurisdiction, regulates in its chapter 6 that pertaining to adoption, specifically in the articles 28 to 33, indicating in its article 28 that the adoption regulated in the Civil Code can be formalized before a Notary Public without the prior judicial approval of the acts being required.
It can be appreciated in this the decree that the intention of the legislators in including adoption among the affairs that can be processed before a notary, was to facilitate the process while at the same time providing legal security, nevertheless 25 years after this law took effect, it has become necessary to adapt the same to the current social and legislative reality, taking into consideration that recently, through decree # 50-2002, the Congress of the Republic approved the Agreement Relative to the Protection of Children and Cooperation in the Area of International Adoption, whose normative should be applied in the internal scope. Consequently, a process is proposed which contains the obligation, at the beginning of the notarial process, of ratification of the consent of whomever exercises the parental rights or tutelage of the child being adopted, before a Family Court Judge and the creation of a central authority that because it exercises legal functions, by mandate of the article 203 of the Political Constitution of the Republic, should be a part of the Supreme Court of Justice.
For the above indicated, the present preliminary draft of law is submitted for consideration, which modernizes the adoption process but without losing its essence which is the interest of social assistance to children who are orphaned and abandoned or those whose parents cannot or will not seek for them subsistence or education, giving simultaneously to couples without children, the satisfaction which can only be provided by a family in the home.
This draft of the “Adoption Law” is made up of 4 titles. The first of these develops the general dispositions of this social institution, the persons and dependencies which participate in the adoption process, and something which is very important in making the process more transparent, it gives participation to the Judge of Primary Instance of Family Court in his quality of Controller of the notarial activity. In the same way, the DAN test is incorporated to indubitable establish the relations in all the cases of adoption without any exception.
Another relevant aspect is that the natural parents or tutors of the minor in the adoption process, in whatever stage of the adoption can revoke their decision to continue with the adoption.
In the same manner, the Title 2 regulates the process, which permits through the processing of the distinct stages a greater legal certainty in the process, it indicates clearly in its articles the faculty to opt for the judicial or notarial process, the actuation of the Judge of Primary Instance of Family Court, the practice of the DNA test, the Actuation of the Attorney General’s Office (PGN) and the requisites for dictating the final resolutions which brings to an end the adoption process.
In the title 3, as something new, the Registry of Adoption Processes is created, assigned to the Supreme Court of Justice, which will have in its charge the registry and control of the adoptions completed in the country and the follow-up of the integration process of the adopted child to his adoptive parents and new environment.
Lastly, the final and transitory dispositions which are necessary for the adequate implementation of this law.
We hope that this normative amply satisfies the expectations and based upon it, adoptions can be completed in a crystalline form and this social institution fills the noble objectives for which it was created.
DRAFT OF “ADOPTION LAW”
CONSIDERING
That adoption is a social institution by which the adopted child acquires the condition of child of the adoptive party, which is constitutionally recognized and protected by the state.
CONSIDERING
That the Constitution declares of National interest the protection of orphaned and abandoned children.
CONSIDERING
That the institution of adoption demands the existence of legal norms which guarantee the protection of the minor child, hi full integration into the home of his adoptive parents, a definitive and irrevocable parent-child relation, and the adjustment of the this legislation to the framework of the International Agreement on the Rights of Children, and the Agreement Relative to the Protection of Children and Cooperation in the Area of International Adoption.
CONSIDERING
That the technological advances of genetic science allow the indubitable identification of the relationship and that it is necessary to incorporate them as an undeniable proof to give legal security of the parent-child relationship.
CONSIDERING
That while a Family Code is being emitted that unifies the relations of family nature in one legal body, it is necessary to take urgent measures in relation to the precarious situation of the children unattended to by their progenitors.
THEREFORE
With a foundation in the articles 47, 50, 51, and 54 and in exercise of the atributions given it by the articles 171 incise a and 157 of the Political Constitution of the Republic of Guatemala,
DECREES
The following:
Adoption Law
Title 1
Only Chapter
Generalities of the Adoption
Article 1: Concept and Irrevocability of Adoption
Adoption is a legal act of social assistance by which the adopting party takes as their own child, the child of another person. Adoption of a person is irrevocable and once formalized, the legal relation of the adoptee with his family of origin is extinguished.
The adoptee acquires the condition of child of the adopting party with all of its rights and obligations.
Article 2: Consent for the adoption
The express consent of the parents or legal representative of the adoptee is an indispensable requisite to constitute an adoption.
In no case can the consent of the parents be substituted while these continue with the exercise of their parental rights.
In the case of parents who are minors, the consent will be given by their legal representative but in any case they should be heard.
When the adoption of a person of legal age is done, his express consent should mediate and it is a requisite that there should have previously existed a de facto state of adoption while he was a minor.
Article 3: Prohibition of Discrimination
It is prohibited to discriminate between natural and adopted children.
Article 4: Effects
Between the adoptee and the adoptive party, there comes to legal life all of the rights and obligations of the filial relationship including the rights of inheritance with respect to an untestated inheritance.
Article 5: Nullity and Ability to Annul the Adoption
The adoption that is based in a null or nonexistent legal act will not produce any effect.
When in the adoption there exists defects of consent or incapacity relative to one of the parts, the adoption is annulable by a judicial declaration.
Article 6: On the Adopting Party
a. Any person who is civilly capable can adopt individually whatever their civil status may be.
b. Married Couples and legally recognized unions can adopt together when both are in agreement. They can also adopt individually when the adoptee is the child of the other spouse or partner.
Article 7: On the Adoptee (Adoptablity)
The following can be adopted:
a. Minor children with the express consent of one or both parents according to their case.
b. Minor children subject to a tutelage with the express consent of the tutor. If the minor has reached 12 years of age, he should be heard to take into consideration his opinion. In this case, the judge or notary should decide what is in the best interest of the child.
c. Those of legal age with their express consent when there has existed a de facto sate of adoption while they were a minor.
Article 8: Custody of Minors Subjects of Adoption
Minor children, during the period of the adoption process, have the right to be protected, feed and sustained by the adopting party for which reason they will be given custody. If they are unable to exercise it personally, they should name as a guardian of the adoptee a person suitable to guarantee their wellbeing.
The biological parents or legal representative of the minor can entrust the custody of the adoptee to the adopting party, a person designated by them, or a third party with whom they will remain during the processing of the adoption.
Only by order of a competent judge can the adopting party or guardian be deprived of the custody of the minor. The judge, prior to ordering the cessation of the custody should hear the notary before whom the adoption is being processed, the adoption party, the guardian, the parents or tutor of the adoptee.
Article 9: Obligations of the Guardian
The guardian of a minor subject to adoption will have the same rights and obligations as the parents in the exercise of parental rights. In any case, the guardian cannot exercise the custody of more than 2 minors simultaneously except in the case of twins.
Article 10: Constitution of Custody
The judge or Notary will prepare and act to constitute the guardian of the adoptee in which the following should appear: the parents or legal representative of the minor, the adopting party or their attorney, and the guardian. In the same act a certified copy of the act will be given to the adopting party or their attorney, and the guardian.
Article 11: Minors interned in Institutions
The public or private institutions of social assistance, which have in their care minors who can be adopted, are obligated to receive requests of those interested in adopting and to register them in a rigorous chronological order. The requests should be noted in a special registry authorized by a Family Tribunal. The representative of the institution should communicate to those interested in the moment in which there exists a minor subject to adoption in the order of their registration in said registry.
Article 12: Children in Abandonment
Minors which have been abandoned by their parents, who are dedicated to vagrancy or mendicancy or who are in situations of risk or danger, should be conducted by the competent authorities to an institution of social assistance that develops programs for the protection of minors.
Article13: Loss of Parental Rights
In those cases referred to by the previous article, the representative of the institution to which the minor is sent, will begin in a maximum time frame of 30 days, before a Family Tribunal of his jurisdiction, the steps for the loss of parental rights on the grounds referred to by Article 274 of the Civil Code in its second and fourth numbers.
Article 14: Inappropriateness of the Loss of the Parental Rights
If the loss of parental rights is not appropriate, the minor will be given to his parents who will be warned so that in the future, the minor will not be exposed to any risks.
TITLE 2
Only Chapter
Adoption Process
Article 15: Settlement
The adoption steps can be settled judicially or extra-judicially before a notary who exercise voluntary jurisdiction according to decree 54-77 of the Congress of the Republic.
In the first request, the following extremes will be assigned:
1. Identification of the adopting party
2. Identification of the adoptee, with an indication of the given name that should be assigned when the approval of the adoption process is dictated.
3. Identification of the biological parents of the adoptee or of who exercises the parental rights or legal representation of the same, with a precise indication of their domicile
4. Identification of the person responsible for the care of the child if that were to be the case.
Article 16: Documents
The request will be accompanied by the following documents:
On the minor
1. Certification of Birth Certificate
2. Original document containing the impressions of the child’s hands and feet.
3. Photograph of the child’s face show his right ear.
From the adopting party
1. Legalized photocopy of the identifying document or passport.
2. Certification of Birth Certificates
3. Certification of Marriage Certificate or Legal Union if it were the case.
4. Certification of Lack of Criminal Record
5. Medical Certification of Good Health
6. Documentation which accredits their economic solvency.
7. Certification of the resolution which has approved the accounts if they had been the tutor of the adoptee.
8. Social Study completed by a social worker in the country of residence of the adopting party which should contain their personal history and a favorable opinion of their suitability for the adoption
9. Sworn declaration by the adoptive parents in which they commit themselves that, in case the adoption were to be completed, they should send a social report abouth the adaptation of the adoptee to his new home, to the Registry of Adoption Processes as established in article 33 of this law.
From the guardian
1. Photocopy of the identifying document
2. Certification of the act in which is constitutes the guardianship by the natural parents or legal representative of the adoptee.
Article 17: Process
Once the petition which fulfills all of the previous requisites is presented, the judge or notary will order completed the following steps.
1. Practice of the genetic test of DNA to legitimize the maternal relationship with the adoptee.
The report of the test should be sent in escrow by the lab that completed it, to the judge or to the processing notary, who in case the results were negative will certify the steps taken to the Public Ministry, for the effect of the corresponding penal prosecution and will place the adoptee at the disposition of the Coordinating Magistrate of the Jurisdiction of Minors.
2. Social study of the biological parents of the adoptee, prepared by a Family Tribunal, by an assigned social worker which should contain:
a. Information on the identity of the child, his adoptability, his social environment, hi personal and family evolution, his medical history and that of his family as well as any particular special needs.
b. Information that there has been taken appropriately into account the educational condition of the child if it were the case, as well as ethnic, religious and cultural origin.
c. Ratification of the consent of the persons indicated in the number 3 of this article.
d. Establishment, especially based on the reports relative to the child and to the future adoptive parents, that proposed placement is in the best interest of the child.
In the same way, the Tribunal should assure that the persons, institutions, and authorities whose consent is required for the adoption, have been appropriately counseled and duly informed of the consequences of the same, in particular in relation to the rupture of the legal bonds between the adoptee and his family of origin, as well that payment or compensation of any type have not mediated in the issuing of the consent. The report should be issued under oath within a time frame of 15 days.
If the results of the DNA test were to be negative, the Judge or Notary should dictate a declaration declaring the impossibility of continuing the process and will certify everything to the corresponding Penal Tribunal in order to deduce the related responsibilities.
3. The ratification of the consent for the adoption before the Tribunal Judge whose social worker will perform the respective report. The judge should assure that the consent is free of vices.
Once the ratification is consummated, the consent of the parents or legal representative of the adoptee, it acquires the character of irrevocable.
Article 18- Notice to the General Registry of Adoption Processes.
Within 15 days of the beginning the adoption process, the Judge or Notary should send to the General Registry of Adoption Processes a notice which should contain the following information:
a. Process number, if applicable, and the date of assignment.
b. Complete name of the adopting parents and of their legal representative if acting by means of a Power of Attorney
c. Complete name of the adoptee and the information of the registration of his birth in the civil registry.
d. Complete name of the biological parents of the adoptee or whomever exercises the legal representation.
e. Complete name of the person in charge of the custody of the adoptee, their identification document, and the address of their residence.
f. Signature and seal of the judge or notary, Registry number, postal address, and telephone number of the notary.
If during the processing of adoption it is necessary to substitute the person in charge of the care of the minor, they change residences or if for any reason the process is unable to be continued, a notice should be given of these circumstances to the Registry.
Article 19- Hearing before the Attorney General’s Office (PGN)
Once the previous requisites have been fulfilled, the judge or notary will send the file to PGN so that within a timeframe of 3 days they emit an opinion. If this were to be favorable, a declaration will be emitted approving the process.
In the case they deem that there is any omission of a legal nature, the judge or the notary will proceed to fill the required requisite if opportune.
If the judge, the notary or the parts in the case deem that the opinion of the PGN is not in accordance with the law, they can impugn it before a Family Tribunal of Primary Instance in the incidental form. The edict that resolves the question may be appealed.
Article 20- Judicial Act Constitutive of the Adoption
The judicial act which approves the process of the adoption will constitute the formalization of the new filial relationship with out further proceedings.
This judicial act should declare:
1. The proper name that the adopting party has assigned to the adoptee upon starting the process, and the new surnames that now correspond to him.
2. That the adoption is constituted and as a consequence, the adoptee now has the quality of child of the adopting party who will exercise the parental rights for him in the case he is a minor.
3. The legal connection which united the adoptee with his biological parents is extinguished.
Upon signing the judicial act, the Judge or Notary will send it to the Civil Registry that recorded the birth of the adoptee, certification with a duplicate so that the registration and respective annotations are completed.
Article 21- Registration of Adoptions
The adoptions should be recorded in a special registry based on the certification of the judicial act that approved the respective steps.
The record should state:
1. New names and surnames of the adoptee.
2. Complete names of the adopting party
3. Identification number from the Registry of Adoption Processes.
4. Place and date of the judicial act approving the adoption and the name of the judge or notary who issued it.
5. Identification of the birth record of the adoptee
6. Date of registration, name, signature and seal of the Civil Registrar.
If requested, the Civil Registrar will extend in the same act of registration of the adoption, certificate of the birth record of the adoptee in which it is prohibited mentioning the names of the natural parents and the circumstances in which the child is adoptive child.
Article 22- Substitution of Notary
In whatever moment, the adopting party will be able to change the notary before whom the adoption is being processed, who upon being notified by the new notary, should give the file or documentation in his power in a timeframe of 3 days being able however to demand that previously he be paid the arranged fees o in their defect, a liquidation based on the corresponding tariff.
If the notary refuses to return the file without justified cause, the Judge will be able to order his occupation following the process indicated by the incidents.
TITLE 3
Only Chapter
General Registry of Adoptions
Article 23- Creation
The General Registry of Adoptions is created as a Central Authority in this subject, which will be referred to in this law as “the Registry” and will function assigned to the Secretariat of the Supreme Court of Justice.
Article 24- Functions and Attributes
The functions of the Registry are the following:
a. Maintain a chronological registry of all the adoption processes that are processed in the Republic.
b. Give information to the interested parties, their attorneys, the judicial authorities who require it on the information contained in their files.
c. Compile the information receive from outside the country in the cases of international adoption on the reports on the adaptation of the adoptees.
d. Receive the authorization or declaration of suitability from the central authority of the coutnry of residence of the adopting parents, when applicable, and give them to the judge or notary before whom the adoption is being processed.
e. Gather, conserve and exchange information relative to the situation of the adoptee and the future adopting parents in the measure it is necessary to complete the adoption.
f. Facilitate, follow, and activate the adoption process.
g. Promote the training of social workers in order to provide counseling in the area of adoption.
h. Exchange with the central authorities of other countries, their experiences in the area of international adoption.
i. Register and file the completed adoption files.
Article 25- Obligation of the Notice
The judges or notaries will give notice to the Registry in a timeframe of 15 days from the initialization of the adoption process indicating the following information.
a. Place and date of the initial request o initialization act.
b. Names of the adopting party and address of their domicile
c. Name of the adoptee and information on his registration in the Civil Registry.
d. If applicable, the name of the person in charge of the custody of the child and the address of their residence.
e. Signature and seal of the judge or notary in the case.
Article 26 – Amendment of the Notice
If during the processing of the adoption, any of the information contained in the original notice should change, the judge or notary should amend the information to the Registry within 15 days following the change.
Article 27- Notice of Finalization of the Process
Within 15 days of having concluded the adoption process, the judge or notary before whose office the adoption was processed will send a notice to the Registry in which will be stated the following:
a. Name of the adopting party
b. Name of the adoptee
c. Passport number of the adoptee and date of emmission in the case of an international adoption in which case the timeframe will begin from the moment the passport is issued by the General Directorate of Immigration.
d. Address of the place where the adoptee will have his residence.
Article 28- Followup reports
The adoptive parents should send a social report on the adaptation of the adoptee to his new home each year starting from his return to his country of destination and for a period of three years. The Registry should keep a record of these reports.
TITLE 4
Only Chapter
Transitory and Annulling Dispositions
Article 1- Cases in Process
The cases which are in process when this law enters into effect will be processed and resolved in accordance with what is arranged in the Article 36, incise M of the Law of the Judicial Organism.
Article 2- Annulment
The articles are annulled which are contained in the Chapter 6, Title 2 of the Book 1 of the Civil Code, 29, 32, 22 of Decree 54-77 of the Congress of the Republic and all the dispositions which oppose this present law.
Article 3- Entering into Effect
This present law will take effect 30 days after its publication in the Official Newspaper.
Article 4- Substitution
In all the cases in which the laws relevant to this subject mention “Civil Code” or the “Civil & Mercantile Process Code” it will be understood as substituted by “Law of Adoption”
Given in the Legislative Palace of the City of Guatemala the day 9 of November of the year 2002.
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