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International Adoptions

3 Feb 2023 - Divorce & Family Law - Min Read 8 min
International Adoptions

International adoption consists of the adoption of a foreign child in his or her country of origin, with the permission of the local authorities and in compliance with the local laws.

In the case of international adoptions, the socio-political situation of the countries from which the children come is a factor that heavily conditions the outcome.

In Italy, there are several couples who have given their willingness to adopt children abroad.

Adoptable minors

For foreign minors (ages 0 to 18) to be considered adoptable abroad, their country of origin must ascertain and declare:

  • The state of adoptability, caused by an irreversible situation in which the child cannot receive moral and material assistance from those who would be required to provide it for them (parents and relatives);
  • The impossibility, in general, to be adequately assisted in their own  country.

International adoption is a legitimate adoption: the child assumes the status of the legitimate child of the adopter; consequently, all relations with the family

of origin come to an end and full kinship relations are established with the adoptee’s relatives; in addition, he/she replaces his/her own surname with that of the adoptive parents and the adoptee will be able to pass it on to his or her children.

The Law Regulating International Adoption in Italy

In Italy, the law regulating international adoption is Law No. 184/83, “Discipline of adoption and foster care of children,” subsequently amended by Laws No. 476/98 and No. 149/01.

The management of and jurisdiction over international adoptions, provided for in the Hague Convention of May 29, 1993, under Law No. 476 of December 31, 1998, rests with the Commission for International Adoption, CAI, established at the Prime Minister’s Office.

Theoretically, the law does not provide for the possibility of adoption for de facto couples, same-sex couples, and singles, but since the Constitutional Court, in Order No. 347 of July 29, 2005, granted a single Italian woman permission to adopt a Belarusian child (with whom she had established over time an established relationship of cohabitation and affection) who was in a total state of abandonment, it has been deemed possible to allow international adoption even for unmarried persons in these specific cases:

  • If a stable and lasting relationship exists between the unmarried person and the fatherless and motherless foreign child, pre-existing the death of the parents;
  • If there is great difficulty in getting the minor adopted.

Each couple, to be eligible and apply, must submit a declaration of readiness to the Juvenile Court of the district in which they reside.

The Court will make its decision through a Decree certifying the possible suitability for adoption.

In the case of Italian citizens residing in a foreign State, without prejudice to the provisions of Article 36, paragraph 4, the Juvenile Court of the district in which the place of their last Italian residence is located is competent.

Alternatively, the Juvenile Court of Rome shall have jurisdiction.

The International Adoption Commission

The role of the Commission is to maintain contact with the children’s countries of origin, manage the agencies that accompany families in adoption, and act as a liaison for adoptive families.

The International Adoption Commission was established following the entry into force of the law ratifying the Hague Convention of May 29, 1993, and is based at the Presidency of the Council of Ministers.

It ensures that adoptions of foreign children take place in accordance with the principles established by the convention, for the protection of foreign children and would-be adoptive families and represents Italy’s central authority for the application of the Hague Convention.

Its duties include forming the register of bodies authorized to carry out international adoption practices and maintaining it, checking it at least every three years, and supervising the work of the bodies, revoking the authorization granted in cases of serious non-compliance, insufficiency, or violation of the rules.

In July 2022, the International Adoption Commission at its meeting on 06/28/2022 resolved, given the continuing emergency resulting from the conflict, to suspend taking on new assignments for couples to be routed to Ukraine and the Russian Federation.

Authorized Entities

Authorized Entities inform, train, and assist prospective adoptive parents and their attorneys in the path of international adoption and take care of the conduct abroad of the procedures necessary to carry out the adoption by assisting the parents before the foreign authority and supporting them in the post-adoption path.

Law No. 476/98 made the intervention of the authorized agency mandatory in all international adoption procedures, changing the previous discipline that allowed, instead, to apply also directly to foreign authorities.

The requirements for international adoption

The requirements for international adoption do not differ from those for domestic adoption.

They may adopt:

  • Spouses who have been united in marriage for at least three years, or for a lesser number of years if they can prove that they have cohabited stably and continuously prior to marriage for a period of three years;
  • Spouses with a solid marriage, demonstrable only if there has been no separation between them in the past three years;
  • Persons whose age exceeds the age of the adoptee by at least eighteen, and no more than forty-five years;
  • Persons deemed capable of educating, instructing, and supporting the children they intend to adopt.

Exceptions are granted to the age limit if the child is at serious risk, if the age limit of the adoptees is exceeded by only one of them by not more than ten years, if the spouses adopt two or more siblings, or if they have a minor child whether biological or adopted.

The Steps of International Adoption

Once the couple has obtained the decree of eligibility, they have one year to begin the international adoption procedure.

He or she will have to evaluate with his or her attorney the most appropriate adoption path and must compulsorily apply to one of the agencies authorized by CAI.

The Entity will have to be selected carefully (based on the foreign country in which it operates and where you choose to apply for adoption), with the assistance of your lawyer, as it will be its operators who will follow the spouses during the most delicate phase and take care of the necessary paperwork.

It is up to the agency to identify the adoptable child, to organize the couple’s meetings with the child and, in case of a positive judgment, to transmit to the CAI in Italy all the documentation referring to the child in question, together with the foreign judge’s order.

At that point, the Commission must authorize the child’s entry and stay in Italy, after certifying that the adoption complies with the provisions of the Hague Convention.

A period of pre-adoptive fostering begins which precedes the actual adoption.

Once the adoption paperwork is completed, the child will be considered an Italian citizen for all purposes, and the Juvenile Court (of the place of residence of the parents at the time of their entry into Italy with the child, which may differ from the one that issued the decree of eligibility) may proceed with the official transcription of the adoption acts in the state registers.

Why is it not enough to apply to adopt in Italy?

In domestic adoption, a child is expected to be adopted under Italian laws, but not necessarily the child of Italians.

Ideally, compared to international adoption, the time frame is short, so the expectation is just over a year from the time the couple, deemed eligible to adopt the child, applies.

Adopting in Italy is legitimate, but since there are a very low number of adoptable children, very few are chosen.

An application for domestic adoption can be filed at the same time as an application for international adoption.

The two procedures follow the same process up to a certain point, then they split and the acceptance of one determines the renunciation of the other.

In addition, domestic adoption is subject to “legal risk,” i.e., the possibility of the child’s return to the family of origin (but also to relatives up to the fourth degree) during the period of temporary placement with the adoptive family.

If the child was placed for adoption directly by the mother, who relinquished her role at the time of birth, the risk is limited to the two months and ten days following the birth.

After the first ten days in which there could have been reconsideration on the woman’s part, she is given two more months for her to reevaluate the possibility of keeping the child with her.

Once these additional two months are over, the pre-adoptive foster care period begins, culminating in the final adoption.

The risk in this case is typically very slight, although it may come into play for the father, who has, in turn, the same period for timely acknowledgment, but in his case it runs from the time he has knowledge of the birth until the pre-adoptive fostering order.

If the child has not been placed in the custody of the natural family by the Juvenile Court and there is a “Decree of Adoptability,” the child may be placed on a temporary basis with a family that has given readiness for adoption through a “Family Placement Decree.”

In this case, parents and biological relatives (up to the 4th degree) have 30 days from the date of notification of the adoptability order to appeal the Decree before the Court of Appeals.

After the Court of Appeals has ruled, the appellants may file a final appeal to the Court of Cassation, within 30 days of notification of the ruling.

Once the time limit for filing an appeal has expired or the judgment that ordered adoptability has been upheld, the 12-month period of pre-adoptive fostering begins in all subsequent levels of court.

At the conclusion of this period, the adoption may become final.

Special Needs: Special Children For Adoption

It is also possible that the renunciation may depend on the situation of the adoptable children.

If in the past the countries from which the children came privileged the solution of international adoption so as not to keep them in special institutions, at present the same countries prefer to favor domestic adoptions, the conditions having been created.

By adopting better welfare policies, or on the contrary suffering their own political instability, these countries considerably decrease the number of adoptable children.

Those that remain available to Italian parents are children who are often too old, resulting in difficulty adapting in a foreign country, or children with special needs, whether serious illnesses, HIV, heart disease, tragic histories, or psychological problems.

We also speak of special needs in the case of sibling groups that should not be separated.

The “Neglect Lists”: Children Declared Adoptable Too Late

Lists of minors, called “neglect lists,” are prepared in many countries.

These are minors who, because of special situations, are less likely to be adopted.

They may have illnesses, or otherwise complex health situations, be part of extended siblings, be over 9 years old, an age already considered very problematic in itself for placement in a new family.

In these cases, families available for international adoption are asked to make a different effort, which obviously not everyone would be able to cope with: they would have to have above-average financial and moral resources.

Entrusting paperwork to a professional help

The advice is to rely on professionals before initiating the paperwork or in the process, for qualified assistance and guidance along a process that could exhaust even the most motivated people.

The attorneys at the Boccadutri law firm will be able to clear up any doubts on the matter thanks to their experience dealing with parties and connections in the children’s home countries. If you are willing to welcome a child into your home, regardless of where they come from, and you have a thousand questions and concerns, do not hesitate to contact our Family Law and Divorce Department.

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Calogero Boccadutri

Calogero Boccadutri is the Managing Partner of Boccadutri International Law Firm. He has trial experience in Forex, Personal Injury and Administrative litigation.

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