CYNTHIA MIGRATED TO the United States as a registered nurse. She is unmarried but has Marlon in her custody, a minor child given to her in the hospital where she worked 10 years ago. Marlon was not allowed to join her in the US. The reason given was that Marlon did not qualify as an adopted orphaned child.

Marlon’s birth certificate names Cynthia as his birth mother. The consular officer did not recognize this, advising Cynthia to adopt Marlon judicially and petition him as an orphan child instead.

Adopting a child

Adopted children are classified into two: adopted child and orphan child. An adopted child under INA Section 101(b)(1)(E) is one adopted before his or her 16th birthday, and has been in the joint legal custody of, and resided with the qualifying adopting parents or parent for at least two years.

There are requirements for two-year legal custody and two-year joint residency before an adopted child may be petitioned by the US citizen or adoptive parent who is a lawful permanent resident.

On the other hand, an orphan child is classified as such due to: (1) death or disappearance, abandonment or desertion, separation or loss of both parents; or (2) the sole or surviving parent’s incapacity to provide proper care for the child and irrevocably released parental rights to the child for immigration and adoption – in writing. There is no two-year residency and legal custody requirement for an orphan adoption.

These classifications of children are defined for purposes of adoption and immigration to the US. The procedures for immigration of the adopted child and the orphaned children are different.

How to do it

For the adopted child, a Form I-130 petition is filed after meeting the requirement of a two-year legal and physical custody of the child. Proving two years of physical presence to the child is difficult, especially for prospective adoptive parents who have long been residing in the US. Adoptive parents are commonly those who would like to petition their nephews or nieces to help their siblings raise their families.

The orphan child does not need to show two years of physical presence with the adoptive parent, but the procedure for petitioning an orphan adopted child is more complicated. Once the adoption decree is issued by the court the petition to classify an orphan as an immediate relative is filed with the US consulate, with supporting evidence that the child is indeed an “orphan” This petition must be filed before the child turns 16.

Last year, the US ratified the Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption (Hague Convention). The regulations on inter-country adoptions became effective on April 1. The Philippines is one of the Hague Convention countries.

According to the new regulations, those wishing to adopt from the convention country must course it through an accredited adoption service. The US Department of State website contains a list of the accredited adoption service providers.

A Central Authority or its designee is located in its Hague Convention country to determine whether, a person is qualified to adopt and whether the child meets the definition of an eligible child. The Intercountry Adoption Board (ICAB) is the Central Authority in the Philippines.

A child’s best interest

Under the new procedure, the Immigration Forms I-800A and I-800 are filed first to start the process. If it is approvable, that is the only time the adoptive parent may file the adoption petition in court. The regulations prohibit the birth parents orphanage from contacting each other before approval of the petition.

The Hague Adoption Convention rules may appear restrictive but these were enacted to ensure that would-be adopted children are provided permanent loving homes and prevent abduction, sale or traffic in children.

To obtain lawful permanent resident or citizenship status in the US, adoptive parents who have claimed orphaned children as their own without the judicial decree of adoption must undergo the process pursuant to the Hague Convention.

In the case of Cynthia and those in a similar situation, they must begin the process of adoption as soon as possible and only through accredited service agencies to avoid denial in the petitioning process. The best interests and well being of the children will be served by taking diligent steps to legalize their adopted status without delay.

Tancinco may be reached at 8877177 or by e-mail at law@tancinco.com).