A. Countries Where There Are No Legal Distinctions Between
Legitimate and Illegitimate Children
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A. Countries Where There Are No Legal Distinctions Between
Legitimate and Illegitimate Children
B. Legitimated Children
C. Abandonment
D. Some Problems Adoptive and Prospective Adoptive Parents of
Foreign Children May Face
Under immigration law, the child of a sole or surviving parent may be considered an orphan if that parent is unable to care for the child properly and has forever or irrevocably released him or her for emigration and adoption. Under some circumstances the child of an unwed mother may be considered to be an orphan as long as the mother does not marry (which would result in the child's having a stepfather under immigration law.) Prospective adoptive parents should work with their local Service office in such cases. The child of a surviving parent may also be considered to be an orphan if it is proven that one of the child's parents died and the surviving parent has not since married (which would result in the child's having a stepfather or stepmother under immigration law).
The term "parent" does not include the natural father of the child if the natural father has disappeared or abandoned or deserted the child or if the natural father has in writing irrevocably released the child for emigration and adoption. In cases where the documentation submitted indicates that the natural father has disappeared, or abandoned or deserted the child, the only release required will be the release from the mother. This procedure is not applicable in the case of a child from a country where there is no distinction between legitimate and illegitimate children. Documentation to support I-600 petitions will differ under this procedure. In some cases the I-600 will be accompanied by releases from both the mother and the natural father. In other cases there will be a release from the mother and evidence that the natural father has disappeared or abandoned or deserted the child. In all cases it must be evident that the mother is incapable of providing proper care to the child (according to the standards in the country of residence) .
Prospective adoptive parents should be aware that certain countries have passed laws which eliminate all legal distinctions between legitimate and illegitimate children. In those countries all children are considered to be legitimate or legitimated children of their natural fathers as of the effective date of the law in question. Of course, paternity must be established. A child born out of wedlock and living in a country that has such a law and whose paternity has been legally established has two parents even though the parents never married and may not be living together. Such a child cannot qualify as an orphan.
Adoptive and prospective adoptive parents of children who were born out of wedlock should become familiar with the legitimacy laws in the countries where the children are born and live. If a child born out of wedlock is from a country which has eliminated all legal distinctions between legitimate and illegitimate children, he or she could still qualify for classification as an orphan under immigration law as long as there is proof that paternity has not been acknowledged before the civil authorities in that country.
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Most countries have legal procedures for the acknowledgement of children by their natural fathers. Therefore, adoptive and prospective adoptive parents of children who were born out of wedlock in any country should find out whether the children have been legitimated. A legitimated child from any country has two legal parents and cannot qualify as an orphan unless only one of the parents is living or both of the parents have abandoned the child. (See Section V, C below for information on abandonment.)
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A child who is abandoned by both parents may qualify for classification as an orphan under immigration law, but immigration law does not define the term "abandonment", and the subject is only discussed once in Service regulations .
According to the regulations, a child who has been unconditionally abandoned to an orphanage is considered to have no parents. A child is not considered to be abandoned, however, when he or she has been placed temporarily in an orphanage, if the parent or parents are contributing or trying to contribute to the child's support, or the parent or parents otherwise show that they have not ended their parental obligations to the child. (8 CFR 204.2(d)(1)).
A precedent decision of this Service, Matter of Del Conte, 10 I&N Dec. 761, deals with the issue of abandonment. In that decision, it was found that the children of an adulterous relationship who were cast from their home were abandoned. For information about Service precedent decisions, please see Appendix Cof this publication.
In the absence of other guidelines, it is extremely difficult to find abandonment when the child has not been unconditionally abandoned to an orphanage or when the child was not born of an adulterous relationship and cast from his or her home. The issue is very complicated. Each case must be decided, on its individual merits at the discretion of the adjudicating officer.
In deciding a case, an officer would use the definition of the word "abandon" which means to desert or give up with the intention of never again taking back one's rights. The intention to abandon is very important. So is the act which carries out the intention. Officers also use a definition of the word "abandonment" which means "neglect and refusal to perform the natural and legal obligations of care and support or conduct which (shows) a settled purpose to (give up) all parental duties and all parental claims to the child" (2 C.J.S. Adoption of Persons S61 (1972)).
While a finding of abandonment normally may be made when the child is in the custody of an orphanage or an orphanage-like institution, the definition of the term "abandonment" is not limited to those instances. Children in other situations could possibly be considered abandoned, but adoptive or prospective adoptive parents should get legal documentation to prove the claimed abandonment from a competent authority in the country where the child lives.
For example, in a case where a child is a ward of the court, the parents must have shown a refusal to meet the natural and legal obligations for care and support of the child and a determination to give up all parental claims to the child. On the other hand, if the parents have been deprived of custody only temporarily, and they are being given a chance to care for the child properly, the child would not be considered an orphan.
Sometimes people try to make a child who was not really abandoned appear to have been abandoned in order to be able to come to the United States. If a child has been made a ward of the court merely as a contrivance, the child would not qualify as an orphan. If the decree declaring the child to be a ward of the court does not describe circumstances which would establish that he or she is an orphan, other proof of abandonment must be submitted in support of the petition.
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Adoptive and prospective adoptive parents of foreign-born orphans face very complex requirements which appear in the law itself. The Service has kept the documentary, regulatory, and procedura1 requirements at a minimum while conforming with the intent of the law. In addition to the Service requirements, orphan petitioners must also comply with foreign and often state adoption laws.
The laws of some countries do not permit adoption. The laws of other countries limit who may adopt. There are also those children who are legally adopted abroad but who do not qualify as orphans because of their age or the fact that they have two living parents who have not disappeared or deserted or abandoned them. Adoptive and prospective adoptive parents should be aware that not all children adopted abroad are orphans and that what appears to be a foreign adoption may not really comply with the laws of the foreign state.
It is the responsibility of the petitioner to prove to the satisfaction of the Service that a child is eligible for classification as an orphan. The proof must be in the form of documents. This proof may vary, depending on the facts in the case. Therefore, it is sometimes necessary to submit documents in addition to those described in Section II, B, 4 of this publication.
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