Insulate your adopted child from legal tangles

Ensure you register or legalise the adoption, else the child loses on inheritance

"Persons of any faith can adopt a child under the Juvenile justice (Care and Protection of Children) Act. The Act will prevail till uniform civil code is achieved, and the Muslim personal law will not stand in the way of such adoption ," a Bench led by Chief Justice of India P Sathasivam observed recently.

Indian citizens can adopt in India under three major legislations - the Hindu Adoption and Maintenance Act (HAMA) of 1956, the Guardians and Wards Act of 1890 and the Juvenile Justice (Care and Protection) Act of 2000, amended in 2006. HAMA is applicable to Hindus, Buddhists, Jains and Sikhs. It is not applicable to Parsis, Muslims, Christians, or Jews. And under the Guardian and Ward Act, persons belonging to the Muslim, Christian, Parsi or Jewish community wishing to adopt can become guardians, that is, the legal connection ends once the child is an adult.

INHERITANCE FOR ADOPTED CHILDREN

Legal adoption

• An adopted child has the same rights on the parents’ assets as a biological child

Unregistered adoption

• The adopted child has no right over your properties/assets
• Any blood relation can supersede the child to stake claim to your assets
• You will have to mandatorily will your asset(s) to adopted child

Word of caution: There is still ambiguity about whether a legally adopted child can directly inherit parents’ inherited assets. Hence, lawyers advise that parents will their  inherited properties to the adopted child

Given that the average maternity age has also risen to 30-35 years, many married couples are opting to adopt at least their second child. But it is not that easy. There is a waiting period. "You can easily take more than one year; in many cases two to two-and-a-half years also," says Megha Gupta, an activist working in the area.

Similarly, everyone can't adopt; like unmarried couples (those in a live-in relationship). Even for single parents, there are some restrictions. An unmarried male cannot adopt a girl child; he can adopt only a boy child, says Gupta. Also, the adopter should at least be 21 years older than the child. For instance, if the child is 10 years old, the adopter should at least be 31 years.

While there is no restriction on whether you should adopt your first child or second, HAMA states that if a biological child already exists in the family, you should adopt a child of the opposite sex, says advocate Aditya Mishra, managing director of lawmantra.co.in. Additionally, adoption under this Act is irrevocable, as is adoption under the Juvenile justice (Care and Protection of Children) Act. However, under the Guardians and Wards Act, guardianship can be revoked by court as mentioned earlier.

The process of adoption involves authorities such as the Court of Competent Jurisdiction who can pass Order for Adoption; Central Adoption Resource Authority (CARA); State Adoption Resource Agency (SARA) or Adoption Coordinating Agency (ACA) and Specialised Adoption Agency (SAA).

Couples who wish to adopt a child, also called Prospective Adoptive Parents (PAP), have to register themselves/himself/herself with only one SAA. On receipt of the application for registration along with necessary documents and requisite registration fee, SAA shall register the PAPs and include them in the waiting list. You can also register online.

Other than photographs, identity and address proof, according to CARA's website, PAPs need to furnish: marriage certificate, family photograph, PAPs' health certificate, two recommendation letters, PAPs' income and tax statement of three years, bank statements of six months, details of movable/immovable property and loans, written consent of other child/ren, divorce/legal separation decree for single PAP.

CARA further states that once registration is done, SAA workers conduct PAPs' home study. The Home Study Report is valid for adoptions from anywhere in the country for two years.

Adoption costs range from Rs 46,000 for domestic adoption to $5,000 (Rs 3.1 lakh) for inter-country adoption (see chart).

Many agencies follow some broad parameters for PAPs to ensure an adopted child has a secure life. Like PAPs' must have a minimum salary of Rs 25,000 a month, a life insurance policy for the baby costing Rs 1 lakh premium and so on.

PAPs are allowed to ask for a child of their preferences. If you are offered a medically unfit child, you can refuse to adopt, says Mishra of lawmantra.co.in. However, you cannot refuse when the child has been sent for foster care.

Every child is sent for foster care to PAPs till the final adoption order is issued. At this time, the child cannot be taken out of the city without the permission of the adoption agency. In case of inter-country adoption, PAPs shall also be required to sign a foster care affidavit stating that they would not leave the country without valid court order.