18 de June de 2019
Find out what you can and need to do to achieve adoption for a child and adolescent.
At the end of last year, President Michel Temer sanctioned Law 13,509 / 2017, which brought changes to various legislation on the subject of adoption. Among the novelties, the following stand out:
With the new law, the legislator seeks to encourage and expedite the adoption procedure, making it less bureaucratic for all involved, either who intends to adopt or who wants to give their son or daughter to adoption.
However, in order to better understand these novelties, we need to take a few steps back and analyze, albeit in a simplified form, the adoption institute. What is adoption and how long has it been in Brazil? What does the Brazilian Law on Adoption say, how does the process work? These and other themes will be explored in this text.
How does adoption work in Brazil?
Adoption, according to the illustrious jurist Orlando Gomes, is “the legal act by which, independently of procreation, the bond of filiation is established.” In other words, adoption is the legal procedure in which a child or adolescent becomes the offspring of a child. person or couple, with the same rights as a biological child has. In Brazil, adoption has been foreseen since 1828, but it was only with the Civil Code of 1916 (CC / 16) that an adoption procedure was established.
However, the adoption foreseen in that Civil Code reflected the customs of the time, being quite conservative and allowing, for example, that only heterosexual people, married and without biological children could adopt.
Over the years there have been changes to adoption. It was with the 1988 Federal Constitution that the adoption institute gained its present features. Article 227, § 6 of the Constitution, for example, eliminated any difference between biological or adopted children, establishing equal rights for both, with the same right to membership. This paragraph seems logical, but it was an important change, since by breaking with the paradigm that a family can only be constituted through marriage, this increased the possibilities for adoption.
Finally, in 1990, the Child and Adolescent Statute (ECA) came into force, whose articles provide for the adoption procedure. Subsequently, in 2009, Law 12.010 / 2009 was enacted, which brought innumerable innovations to adoption, allowing, for example: single people to adopt, provided they are at least 16 years older than adopted; as well as creating the concept of extended family, that is, “that which extends beyond the unity of parents and children or the unity of the couple, formed by close relatives with whom the child or adolescent lives and maintains bonds of affinity and affection” .
In addition, the National Register of Adoption (CNA) was established, which should include children suitable for adoption and applicants, avoiding irregular adoption, in which the couple simply “stays” with the child and the child without any process legal or monitoring of the State.
Adoption process: How is the process in Brazil?
To adopt in Brazil, the individual or couple must go through several stages, which are listed below:
1. Search for the Childhood and Youth Court of your municipality and know which documents you should start putting together
The minimum age to qualify for adoption is 18 years, regardless of marital status, provided that the difference of 16 years is respected between those who wish to adopt and the child to be fostered. Among the documents you must provide are: identity document, CPF, marriage or birth certificate, proof of residence, proof of income or equivalent declaration, medical certificate or statement of physical and mental health, civil and criminal records;
2. Make an application for adoption (at the notary’s office of the Children’s Court)
In order to begin the adoption process, you will need to file an application for adoption (at the Children’s Court registry office), which can be prepared by a public defender or private lawyer. Only after approval, your name will be able to appear in the local and national registers of applicants for adoption;
3. Course on psychosocial and legal preparation
The applicant (s) must carry out a course of psychosocial and legal preparation, which lasts about 2 months and has weekly classes. After the participation in the course has been proven, the candidate is submitted to the psychosocial evaluation with interviews and home visits made by the interprofessional technical team, made up of psychologists and social workers. The result of this evaluation will be sent to the Public Ministry and to the judge of the Childhood Court;
4. Sentencia del juez sobre la adopción
A partir del laudo del equipo técnico de la Vara y del dictamen emitido por el Ministerio Público, el juez dará su sentencia. En caso de que se solicite el solicitante (s) pretendido, el nombre de ellos en el CNA, con validez por dos años en el territorio nacional. Con ello, el (los) pretendente (s) están automáticamente en la cola de adopción de su estado y aguardará (a) hasta que aparezca un niño con el perfil compatible con el perfil fijado por el (los) pretendiente (s), observada la cronología de la (s) (que desea un niño con el mismo perfil y está en más tiempo en la cola de espera tendrá preferencia);
5. Find a child or teen with the profile for your family
The Children’s Court will advise you that there is a child with the profile compatible with what you have indicated. The child’s life history is presented to the adopter; if there is interest, both are presented. The child will also be interviewed after the meeting and will say whether or not to continue with the process.
During this stage of coexistence monitored by the Justice and the technical team, it is allowed to visit the shelter where the child lives; give small walks to get closer and get to know each other better. Forget the idea of visiting a shelter and choosing your child from those children. This practice is no longer used to prevent children from feeling like objects on display, not to mention that most of them are not available for adoption – many of them are in temporary shelters because their parents are in rehabilitation of chemical dependencies or for lack of financial conditions, and, under these conditions, respectively, will have their custody again after the end of treatment or when getting a job, for example;
6. If everything goes well, the adoption action will begin and there will be provisional custody of the child or adolescent
If the relationship goes well, the child is released and the suitor will bring the adoption action. When entering with the process, the applicant will receive provisional custody, which will be valid until the conclusion of the process. At that moment, the child moves in with the family. The technical team continues to make periodic visits and will present a conclusive evaluation;
7. Sentence of adoption and registration of the child or adolescent in the family
Finally, the judge pronounces the sentence of adoption and determines the drafting of the new birth record, with the surname of the new family. There is also the possibility of changing the child’s first name. At that moment, the child becomes entitled to all the rights of a biological child.
Some questions you may have regarding adoption …
In addition to these steps, it is necessary to make three observations on the adoption process in Brazil:
1. Who can adopt?
Single people, widows or living in stable union can also adopt; the adoption by homosexual couples is not yet established by law, but some judges have already given favorable decisions regarding them.
2. Is it possible to choose a child or adolescent to adopt?
During the technical interview, the applicant will describe what he or she wants in the profile of the child or adolescent. It is possible to choose the sex, the age group, the state of health, the brothers, etc. When the child has siblings, the law provides that the group is not separated;
3. Is it possible to be disapproved in the adoption process?
If your name is not approved for adoption, find out why. Lifestyle incompatible with raising a child or wrong reasons (to appease loneliness, to overcome the loss of a loved one, overcome marital crisis, etc.) can make an adoption unfeasible. Do not worry, you can suit and start the process again!
Problems with adoption in Brazil
Contrary to what many people imagine, Brazil does not lack couples or people who wish to adopt. On the contrary, according to data from the National Justice Council (CNJ), there are 7,158 children eligible for adoption and 38,000 people interested in adopting.
Why, then, is there such a difference between adoptive children and pretenders who want to adopt them? According to the CNJ, the biggest obstacle to adoption in Brazil is that the child profile demanded by the applicants – that is, age, color / race, health – is not compatible with that available in the host institutions. According to Judge Hélia Viegas, from the 1st Child and Youth Court of Recife-PE, “The minority of the children is in the idealized profile, that is, white and less than four years. If the requirements do not change, adoption by the ANC will take a long time. ” Another problem verified by the CNJ is the demand of the applicants to adopt children without siblings, who are also the minority.
Is adoption in the world very different from adoption in Brazil?
In much of the world, adoption standards are less demanding than Brazilian ones. However, this “ease” of adoption abroad is not necessarily a good thing, since poverty, tragedies and wars end up creating an export market for children. Examples are northern and central African countries, regions affected by poverty and civil war, which require little bureaucracy to adopt, increasing the possibility of trafficking in children and adolescents, for example.
There are also cases of countries such as China, where the one-child policy eventually led to hundreds of thousands of children being abandoned (with minimal chance of being adopted by Chinese couples) made available for international adoption.
In sum, most countries have less demanding and detailed rules of adoption than Brazil, although all of them give the Judiciary the final say. Another difference from the majority is that Brazil prohibits the participation of specialized agencies in the adoption process. Such agencies exist in other countries and can be advantageous as they facilitate dealings with public agencies and all the bureaucracy and documentation involved. But such “agility” comes with a price, allegations of corruption and the black market of children linked to service delivery are frequent, according to Campell Law Observer.