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Expedited adoption is not in the best interests of a child

Marta is the mother of a 7-year-old Sandra. Sandra’s biological dad died five years ago. A year after the death of Sandra’s father, Marta met her future husband Indrek. Marta took Indrek’s surname when they married and Indrek expressed his wish to adopt Marta’s daughter Sandra. They lived together as a family for another three years. Sandra called Indrek her father. After Marta and Indrek separated, he declared that since their marriage is over, he no longer wants to hear from Marta or Sandra. Indrek also wanted to reverse the adoption.

Anna and Aivar were married for 15 years. During the marriage, Aivar adopted Anna’s minor son Karl and raised him until he became an adult. At the time of their separation, Karl was already 20 years old. A few years later, Aivar began a new relationship, which resulted in two children. As a successful businessman, Aivar had accumulated considerable wealth over the years. With a new family already in place, Aivar wanted to reverse Karl's adoption in order to exclude Karl from his circle of heirs.

What are the legal consequences of an adoption and is it possible to reverse the adoption at a later date?

According to § 147 (1) of the Family Law Act, adoption is permitted if it is necessary in the interests of a child and there is reason to believe that a parent-child relationship will be created between the adoptive parent and the child. Upon the selection of an adoptive parent, his or her personal characteristics, relationship with the adoptee, his or her financial situation and ability to perform the obligations arising from the adoption relationship and, if possible, the presumed will of the parents of the child shall be taken into account. If possible, the need for consistency of raising of the child and his or her national, religious, cultural and linguistic origin shall be taken into account upon making a decision.

Adoption results in a child-parent relationship between the adoptee and the adopter. The adoptive parent acquires the legal rights and obligations of a parent, including the duty to take care of the all-round well-being of the child, to raise and maintain the child and to decide on matters related to the child. Among other things, the child acquires the right to be loved and cared for by both parents and to have a personal relationship with both parents. Therefore, it is of the utmost importance that the decision to adopt a child is made in a deliberate and considered way, taking all the consequences into account, including legal ones, that adoption entails.

The fulfilment of parental rights and obligations in relation to an adoptee does not end with the divorce of the spouses. It is not possible to simply give up the child. By adopting a child, a parent takes a lifelong responsibility towards the child, so the decision to adopt must be made with careful consideration of whether the adoptive parent is still prepared to fulfil the obligations of a parent even if his or her relationship with the child's other parent ends for whatever reason.

Expeditious intra-family adoption is not in the best interests of the child. This is the case even if the adopter participates in raising the child and plays the role of a parent for a certain period of time. Generally, it is important to ensure stability for the child. Therefore, deciding to adopt a child within the family on the spur of the moment and abandoning the child when the relationship ends is not in the best interests of a child. This is also not allowed by the current Family Law Act.

In exceptional circumstances, adoption can be declared invalid in accordance with the procedure laid down in § 166 to 170 of the Family Law Act. Adoption can be declared invalid only by the court. Pursuant to § 166 (1) of the Family Law Act, the court may declare an adoption invalid if the adoption took place without the petition of the adoptive parent or without the consent of the child or one of the parents.

Adoption has taken place without the petition of the adoptive parent if the person's consent to the adoption was incomplete due to lack of capacity to exercise his or her will, restricted active legal capacity, inadequate understanding of the legal consequences, fraud, threat or premature consent. The court shall not declare the adoption invalid if it damages materially the interests of a child (§ 167 (5) of the Family Law Act).

Pursuant to § 168 (1) of the Family Law Act, a petition for declaration of invalidity of an adoption may be filed only by a person without whose petition or consent the child was adopted. The time limit for filing a petition is up to three years as of entry into force of the court ruling on adoption. Before the child has reached the age of 18, the court may, in the weighty interests of a child, declare the adoption invalid on its own initiative (§ 169 (1) of the Family Law Act). In the above examples, there are no grounds for invalidating the adoption.

If the adopter is not prepared to accept lifelong responsibility towards the adoptee, regardless of the adopter's relationship with the other parent, intra-family adoption is irresponsible and contrary to the best interests of the child. In order for unmarried people to be able to play the role of a parent to the spouse’s child - caring for the child and ensuring its well-being, the spouse does not necessarily have to adopt the child. The decision of adoption must be based on the best interests of the child.

Read more about adoption: www.omapere.ee and https://sotsiaalkindlustusamet.ee/et/lapsed-ja-pere/lapsendamine

 


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