Adoption is defined as being the legal procedure in which "parentage is pronounced by a judge between two unrelated persons".
There are two forms of adoption:
• the “full” adoption under which the adopted person ceases to belong to his biological family;
• and the “simple” adoption, in which the adopted person remains legally attached to their biological family while benefiting from their family's home or from certain effects related to their new affiliation; for example, they may still benefit from their surname or their inheritance rights.
“Full” adoption entails a complete break in the existing links between the adoptee and their family of origin. The adopted person thus enters fully into their adoptive family. “Full” adoption is irrevocable and fulfills several conditions in order to be effective.
I. The formal requirements of the full adoption.
First, the child is placed at the home of the adopter (s) for at least 6 months before the adoption is made; Article 345 paragraph 1 of the Civil Code provides that "adoption is permitted only for children under the age of fifteen, who have been at the home of the adopter(s) for at least six months". It should be emphasized that official approval is necessary when the adopter(s) want to adopt a foreign child or a child who is a ward of the State. The return of the child to their family of origin is then impossible once the placement is made and it becomes forbidden for the former family to make a declaration of affiliation or legal recognition of the child.
Second, an application for adoption is to be filed with the IMT, which must specify the application. This is a civil procedure. The court then verifies that the conditions for “full” adoption are fulfilled and it also checks that the pronouncement of the adoption "is in the interest of the child". If the adopter already has descendants, the judge is required to verify that the adoption "is not likely to compromise family life". In respect to the descendants, the Court of Cassation includes the adoptive children of the adopter.
The substantive conditions of the”full” adoption.
Two spouses can do joint adoption. It may be requested by two spouses who are not separated from their husbands, married for more than two years, or both over the age of twenty-eight.
In case of adoption of the spouse's child:
• The child must have legally established parentage only with respect to that spouse;
• The other biological parent must have totally lost parental authority; OR
• The other biological parent must have died and have not left ascendants in the first degree or have obviously lost interest in the child.
• The age of the adoptee must be less than 15 years, the adoptee must consent to its adoption if they are over 13 years old.
There are, however, three categories of adoptable children: children voluntarily given to adoption, wards of the state, and finally, neglected children.
1 ° For children voluntarily given to adoption, both parents must both consent to its adoption, except in cases where one of them is dead, or unable to manifest their will or if they have lost rights of parental authority over the child. Where affiliation is established only with respect to one of the two parents, the only agreement of the latter is sufficient for the child to be adoptable. Where affiliation is not established, the family council must then consent to the adoption after the opinion of the person "who, in fact, takes care of the child". The person who has consented to the adoption of his child may decide to retract his consent within 2 months. In case of conflict, it is the IMT who will decide the conflict according to the interest of the child. After the expiry of this period of 2 months, their child cannot be returned if they have already been placed in a family for adoption.
2 ° The adoption of "wards of the State" requires the consent of the family council. Admission as a State ward may be appealed. The child considered as "ward of the state" are minors placed under the responsibility of the state: they are either minors born without a known identity of their biological father, or minors found on the street, minors who are found undeclared, minors entrusted to the state by legal decision in the service of child welfare, or orphan minors.
3 ° Finally, children abandoned after being declared judicially neglected, it is established a judicial declaration of parental neglect. Thus "a child is considered abandoned when his parents have not maintained with him the relations necessary for his education or his development during the year preceding the introduction of the petition, without the latter having been prevented by whatever cause it is. The parental abandonment will be the subject of a decision of abandonment on the condition that this abandonment lasted one year before the introduction of the application in judicial declaration of parental neglect before the TGI. It is also envisaged that the request may be established by the public prosecutor's office "acting automatically or, where appropriate, on the proposal of the juvenile judge".
The child can then be adopted and they acquire the status of “ward of the state”. Also, the child adopted must have been in the adoptive for at least six months. There must be between the adoptee and the adopter a minimum age difference of 15 years. But in the case of "just cause", the age difference required between the adoptee and the adopter may be less than 15 years.
The effects of full adoption are twofold.
1 ° The annihilation of the original bond of affiliation: "the adoption confers on the child an affiliation which replaces their original parentage: the adoptee ceases to belong to his family by blood, and is subject to marriage prohibitions referred to in Articles 161 to 164 of the Civil Code ". Thus, both patrimonial and extra-heritage links disappear with the full adoption of the child. In addition, the original birth certificate becomes null. The break in ties with the family by blood cannot be invoked against the interest of the child.
2 ° The creation of a new bond of descent: once adopted, the child enters fully into his adoptive family. He then acquires a status identical to that of the biological child. Plenary adoption creates a reciprocal obligation of support between the adoptee and the adoptive parents and their other children. The adopted child acquires inheritance rights. The affiliation link thus created is established as of the day of the filing of the request for adoption. "The adoption is irrevocable". Thus, both the original family and the adopters cannot “return” their adopted children.
II ° What are the conditions governing a “simple” adoption?
The substantive and procedural requirements relating to simple adoption restate the conditions lain down in the framework of a full adoption (Articles 347 to 350 of the Civil Code).
However, some provisions are specific to “simple” adoptions:
1. “Simple” adoption is permitted regardless of the age of the adoptee.
If there are grounds for serious concerns, the “simple” adoption of a child who has been the subject of a “full” adoption is permitted. The child previously adopted by one person, in “simple” or “full” form, can be adopted a second time, by the spouse of the latter, in the “simple” form. If the adoptee is over the age of thirteen, they must personally consent to the adoption. The adoptee can be more than fifteen years old.
The effects of “simple” adoption.
“Simple” adoption brings together two ties of affiliation for the adopted child: a link with his blood family and a link with his adoptive family.
The adoptee remains a legal member of their family of origin and retains all their rights, including hereditary rights. The prohibitions on marriage provided for in Articles 161 to 164 of the Civil Code apply between the adoptee and their family of origin. The relationship of descent with the family of origin is thus maintained and the relationship of filiation with the adoptive family is added and "extends to the children of the adoptee".
The organization of relations between the biological and adoptive families require four essential points: the name of the child, his inheritance rights, the maintenance obligation, and finally, the parental authority.
1 ° The name of the child: "the ‘simple’ adoption confers the name of the adopter on the adoptee by adding it in the name of the latter. However, if the adoptee is of age, he must consent to this addition ". Thus, the name of the adopter is attached to the original name of the child. It should be noted that if the adopter and the adoptee have a double name, the addition is made within the limit of one name each. In a case of disagreement on the order of the names, it is the first name of the adoptee which is indicated first then the first name of the adopter.
In case of joint adoption of the child, the child keeps his name and a name chosen by the adopters is added. In case of disagreement, the adoptee keeps his name and then acquires one of the two names of his adoptive parents in alphabetical order. However, the adoptee may only bear the name of the adopter if the latter requests it. If the adoptee is over 13, they must consent personally.
2 ° The inheritance rights of the child: the adopted child accumulates the inheritance rights both in their blood family and in their adoptive family.
However, they do not have the status of heir to the successions of the grandparents.
3. The maintenance obligation: "the adoptee owes maintenance to the adoptive parent if they are in need and, conversely, the adopter owes maintenance to the adoptee." The father and mother of the adoptee are not to provide him with food only if they cannot obtain it from the adopter. " A reciprocal maintenance obligation is therefore created between the adopter(s) and adopted as a result of the “simple” adoption and this is in addition to that existing between the adopted child and his / her parents of origin, while retaining that such obligation rests primarily on the adoptive parents.
4 ° Parental authority: the adopting parents are the only ones invested with all the rights of parental authority for the adopted child, including the right of consenting to the marriage of the adoptee, unless they are the spouse of the father or mother of the adoptee; in this case, the adopter has parental authority concurrently with their spouse, who retains only the exercise thereof, subject to a joint declaration with the adopter addressed to the Director of the Registry Services of the High Court for purpose of a joint exercise of that authority.
In case of “simple” adoption of the child of the spouse, both spouses are then holders of parental authority. However, the exercise of parental authority is in principle the sole parent by the blood of the child. The filing of a joint declaration in front of the chief clerk of the TGI nevertheless allows both spouses to exercise joint parental authority over the child. If necessary, such an application may be made by one of the spouses alone before the family court judge.
There is, however, a possibility of revocation to “simple” adoption:
"If there are grounds for serious reasons, the adoption may be revoked when the adoptee is of age, at the request of the latter or of the adopter. When the adoptee is a minor, the revocation of the adoption can only be requested by the public prosecutor ".
There is another case in which “simple” adoption ceases; This is the transformation from simple adoption to full adoption, which can be achieved throughout the time that the adoptee is a legal minor, and up to two years later.