Are you and your partner considering adopting a child from an orphanage? Or does your partner want to adopt your child from a previous marriage? We have summarised the legal consequences of such a move and how to proceed in our article.
Are you and your partner considering adopting a child from an orphanage? Or does your partner want to adopt your child from a previous marriage? We have summarised the legal consequences of such a move and how to proceed in our article.
If you are considering caring for someone else’s child, the Civil Code knows several options. The one that most closely resembles biological parenthood is adoption. The adoptive parent has the same rights and obligations towards the adopted child as the birth parent. These relationships continue even after the child has reached the age of majority or completed his/her studies. The adopted child also acquires kinship ties to other persons (new grandparents or siblings, for example). Legal consequences also apply, for example, to inheritance and other legal institutions.
In contrast, fostering is more of a de facto care, where a very strong and even nice relationship between the foster parent and the child can develop, but legally the child is not free. This means that foster parents do not take over parental rights and some things have to be decided by the court or the biological parents.
Are you dealing with a legal issue related to the adoption of a child?
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Tip: We have discussed the forms and legal circumstances of fostering in detail in our article.
The conditions and consequences of adoption of a minor child are now comprehensively regulated by the Civil Code, which states that adoption means taking a foreign person as one’s own.
In doing so, the law lays down conditions on the part of both the adoptive parents and the child, as well as conditions relating to their relationship with each other.
The adoptive parent may be an adult and a person with a legal capacity who should guarantee by his/her way of life and his/her characteristics that he/she will be a good parent for the adopted child. Most often, children are entrusted to the care of spouses in order to respect the traditional family model as closely as possible. Very rarely, a single parent can also become a parent. The law does not yet grant the right of adoption to persons in a registered partnership, nor does it speak of a partnership between a man and a woman (in which case, however, one of the couple may try to apply for adoption). It is also worth mentioning the examination of the adopter’s health. The intention is not, of course, to discriminate against sick persons, but it is in the child’s interest that he or she should receive the best possible care, which would probably not be compatible with the very serious health of the adoptive parents. It is therefore stipulated that the health of the adoptive parents must not limit the care of the adopted child to a significant extent.
As far as the child is concerned, the requirements for a normal type of adoption are primarily the child’s minority and legal freedom. A minor child who has not acquired full legal capacity may be adopted.
As far as legal freedom is concerned, this can be achieved either by the biological parent consenting to the adoption or by the biological parent doing one of the following:
As a rule, parentalconsent to the adoption of a child may be revoked within 3 months of its granting.
The child is not, of course, decided without his or her consent. For older children who have reached the age of 12, their own consent is assumed. In the case of younger children, the guardian gives consent and, where possible, the court will also hear the adopted child and take account of his or her comments, taking into account the child’s level of mental development.
The law allows for the adoption of an adult if this is not contrary to good morals. The adoption of an adult shall be decided by the court on the application of the person who wishes to adopt the adult, to which the adult to be adopted shall join.
Thus, a prerequisite for adoption is the existence of a certain solid and permanent relationship between the adoptive parent and the adoptee, which normally exists between parent and child – or at least the foundations of such a relationship.
It is assumed that there is a reasonable (at least 16 years) age difference between the adoptive parent and the adopted child, which corresponds to the age of the parent and the child.
Prospective adoptive parents can contact a company that deals directly with foster care. They will provide them with information about the whole process and offer them the possibility of preparation courses in the future. However, do not imagine a similar course for expectant mothers, where the parents are taught how to change and care for the baby. The specifics of the preparation for adoptive parents are to understand the special needs of children with potentially disturbed emotional attachment and to know the so-called principles of therapeutic parenting.
They then contact the foster care department (or the relevant OSPOD worker) in the municipality of residence. Here they will learn about all the administrative requirements and the adoption procedure. The office may ask for proof of health, income, etc. The OSPOD worker also arranges a visit to the parents’ home. She is interested in the layout of the apartment with regard to the future housing of the child.
The parents are then assessed by the regional authority. They also undergo a psychological examination and the aforementioned preparatory courses. Once the county council has given a positive assessment, the most suitable child for the couple is sought. The preferences they have indicated in their application are also taken into account.
The actual act of adoption is usually preceded by the so-called pre-adoption care, which lasts for a period of time during which it can be assessed whether the necessary relationship has been established between the adopter and the child and whether the adoption can therefore be expected to fulfil its purpose and be successful.
Since adoption essentially imitates biological parenthood to some extent, the relationship between the adoptee and the adopter should be as permanent and stable as possible after the adoption, although this is not always the case.
The fundamental and main legal consequence of adoption is the dissolution of the relationship between the child and his or her original family, together with all the rights and obligations arising from that relationship. At the same time, the adopted child becomes a descendant of the adopter, who is also registered as the child’s parent. The adoptive parent acquires parental responsibility towards the child, which consists primarily in the adoptive parent’s obligation to care for the child’s health, physical, emotional, intellectual and moral development, to personally care for and associate with the child, to ensure the child’s proper upbringing and education, to represent the child or to manage the child’s property. As a rule, the child also acquires the surname of the adopter.
Although this should only be exceptional, and if there are particularly compelling reasons, the court may annul the adoption (either on the petition of the adopter or the adoptee). However, the adoption cannot be revoked after three years have elapsed since the adoption decree. The annulment of the adoption shall restore the original relationship with the biological parents.
As can be seen from the preceding text, there are quite a large number of persons and factors involved in the adoption process. Particularly complex can be the relationship with the birth parents, who, for example, have shown virtually no interest in the child for a number of years, but refuse to legally disengage, or withdraw their consent once it has been given. Complications can also arise if, for serious reasons, the adopter or the child applies for revocation of the adoption. These are all legally and emotionally very complicated situations and it is advisable to consult an experienced lawyer as a lot is really at stake. A family law specialist will handle the situation quickly and sensitively, taking into account the interests and needs of the child. So you do not have to worry about any escalation of the dispute.
So far, we have mentioned cases of children who are, for example, in institutional care and are not being cared for by their biological parents. However, it is quite often the case that, for example, a single mother (and similarly a father) meets a new partner who develops a relationship with her children and subsequently considers adopting the children of his new spouse.
In such a case, adoption is also possible, but the relationship of the children to their second biological parent is of course crucial. The basic condition is that the other parent (if he or she is listed on the child’s birth certificate) consents to the adoption on the record before the court. There may be situations where the parent shows no interest in the child, and the whereabouts of the child may not even be known. In such a case, consent would not be required, but other conditions must be met. Another possibility is that the child’s other parent is no longer living.
Similarly to the adoption of a child from institutional or temporary foster care, pre-adoption care is required. This lasts for at least 6 months and must be decided by the court. It is irrelevant whether the child has actually lived in the family of the prospective adoptive parent at his or her expense before, unless this has been decided by a court. The consent of the child to be adopted is also obtained.
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