By Marisol Hernández; translated by Solomon Freimuth
REQUIREMENTS, PROCEDURE AND INTERNATIONAL ADOPTION
Currently, the adoption procedure in Mexico is considered long and on occasion can become difficult or tedious, this derived from lack of knowledge of the procedure or of the lengths of time that each stage of the process requires, therefore this article will give a brief overview of the procedure with the purpose of orienting those who have interest in the topic.
As has been mentioned in previous parts of this series, the legislation on adoption varies from state to state, but Mexico is currently in the middle of the harmonization process, where the higher interest of the child is always sought and which consequentially guaranties the fundamental rights of the child before, during and after the process of adoption. In the last years, various entities of the Republic have started to incorporate the principles and commitments acquired by Mexico, through the Hague Convention on the Protection of Minors, in their laws. As mentioned, the Federal District (Mexico City) started this process more than 10 years ago when that city assimilated the figure of what we today know as international adoption, the State of Quintana Roo modified its own laws in 2009 and, at the writing of this article, news has arrived that the Congress of the State of Veracruz has approved unanimously their own Adoption Law.
In this process the authority that has the obligation to intervene in a direct manner or as a consultant is the Whole Family Integration (DIF for its initials in Spanish) system of each state, even though in some cases the process can be initiated directly before private institutions, properly accredited and authorized to carry out such procedures.
WHO CAN ADOPT?
Married men and women, couples in common-law marriage or single persons, over 18 years of age, who possess mental capacity to exercise their rights, of which at least one of those who intends to adopt is 15 years or more older than the person they are trying to adopt, who have sufficient means to provide accordingly for the subsistence and education of the child whom they intend to adopt and who have been declared suitable by the local Whole Family Development system or the corresponding central authority. It should be mentioned that, adoption by same-sex spouses is only permitted in the Federal District (Mexico City), although at the time of this writing, not one single case of this type of adoption has concluded.
Foreigners can adopt a Mexican youth, as long as they fulfill all the previously mentioned requirements as well as accredit their legal status in the country, and in the case that they do not reside in the country, should possess a certificate of suitability and eligibility for adoption issued by the central adoption authority of their country of origin, according to the guidelines that said country establishes.
In the case of international adoption, a central authority has been mentioned: This central authority refers to the figure established by the Hague Convention, which is part of the adoption process. The so-called “Central Authority” really refers to two authorities, the first of them, the central authority of the “State of Origin”, that is the nation where the minor who is being adopted originates from; the second central authority being the “Receiving State”, which is the nation where the solicitants originate from or where they have their residence and where the minor will finally reside, once the process is finished.
In Mexico the central authority designated for the process of adoption is the Ministry of Foreign Relations, which in this case acts in coordination with the Whole Family Development system from each state and the national system of Whole Family Development if the adoption takes place in the Federal District (Mexico City).
For cases where foreigners wish to adopt a minor of Mexican nationality, it is necessary that they obtain permission from the Ministry of Government, which is processed before the National Immigration Institute, where it will be necessary to present an application form, in Spanish, as well as a letter from the institution which has initiated the adoption process, migratory documents and passports, among other documents.
The process begins with the decision to adopt, the willingness to comply with all the requirements and all the patience required for a process like adoption, which for its utter importance requires all possible safeguards, and may well take more time than expected. The process is technically without cost, although it must be considered that some minor costs will be incurred and various days will be spent in diverse government offices. It could be said that the process can be divided into three stages, the first consists in (i) reuniting the necessary requirements, next the solicitants are submitted to an (ii) approval process and finally, if they are approved, they are (iii) assigned a child.
In the first stage, the requirements that the institutions solicit, as well as the laws, are basically the same in every state, keeping in mind that the process can vary a little depending on the state where the application is presented. These requirements are mostly documents that are easy to acquire, such as birth certificates, marriage licenses, proof of income, proof of address and letters of recommendation, among others and this documentation must be presented to the agency that will start the adoption process, be it public or private. In the case that the adoption will be carried out through a public institution, it must be the Whole Family Development system, or in case of a private agency, it must be properly accredited and authorized to carry out such processes.
Once all the documents are presented, the corresponding record must be submitted to an approval board, where experts in the material such as lawyers, psychologists, social workers and others determine if the solicitants are candidates to receive a minor child in adoption. In terms of the Hague Convention, this is known as “the Suitability and Eligibility report or declaration”. Once obtained this approval, the adoptive parents automatically appear in a waiting list along with other solicitants who have received said declaration and are waiting for a minor susceptible to be adopted to be assigned to them.
At this point it is important to mention that, contrary to popular belief, not all children found in temporary homes or shelters are susceptible to be adopted, meaning that, their legal situation has not yet been “liberated” and therefore the institutions in charge of this minors will not obtain custody over them and it is not possible to put them up for adoption. To accomplish this they must pass through a process independent from the adoption, which also takes time, and during which the minor passes more time in foster homes and shelters. During this period, which can vary depending on the particular situation of each child, the children are known as “institutionalized minors”, being that they even though they are under the care of an institution there is still a possibility that they will be returned to their family of origin.
Once all of the requirements have been met, the declaration of suitability has been obtained and the perspective parents have been assigned a minor, the legal adoption process actually starts before a Family Court Judge in the jurisdiction where the application was presented.
During this process, the court will hear testimony from the agencies, people and authorities which have intervened during the whole process, such as personnel in charge of the shelters, foster homes or other corresponding authorities, the Public Minister and the Attorney for the Defense of the Minor and the Family from the corresponding state-level Whole Family Development system. The court will also take into account social, psychological, medical, socioeconomic and judicial studies, realized by the corresponding authorities in order to make its final decision.
Some aspects that are of the utmost importance to take into consideration are obeying the prohibitions included in adoption law, which among others are: The adoptive parents must follow the legal dispositions established by international treaties celebrated by Mexico, as well as state and federal laws, they must not make direct contact with the perspective adoptee’s biological parents and that no economic benefit can be obtained from the adoption. In the case that one of these hypotheses is fulfilled during the process of adoption, the process can be suspended immediately and as a consequence the adoption will not be authorized. To add to all this, criminal charges may be applied.
Even though the described process doesn’t appear overly complicated, the reality is that various situations complicate the process little by little, be it the lack of cohesion with the international treaties in which Mexico is part, the multiplicity of legislations in the country, the diverse authorities with whom one must deal, the vigilance over the procedure in order to secure the correct outcome for the child, the demand (which has substantially increased in the recent years), the fact that currently institutionalized youth are not always susceptible to be put up for adoption or that the whole procedure is contained in a file that rests for months on various desks until the process is finally concluded. The best way to handle this type of process is to be informed about all the steps that it involves, the authorities which play a part in the process and, most importantly, about the time that the process is going to take, knowing that much patience is necessary and that the persons soliciting the adoption must be available during the time period. Even though it is true that the process can be carried out by the institutions authorized to do so, it is always important to have an attorney who is expert in adoption material who can give legal certainty to those who are trying to adopt and will accelerate substantially the completion of the process.
About the author: Marisol Hernández is an independent lawyer with vast knowledge in family law and is currently part of the law firm CHF Calderón & Associates in Playa Del Carmen, Mexico. For more information about this firm, visit our website at www.chfmexico.com or contact us via email at firstname.lastname@example.org. Copying, distribution or publication of this article, in parts or whole, is permitted as long as the work is attributed to its authors exactly as mentioned in this article.