Description of Guatemala Notarial Adoption Process
Relinquishment is the most common form of adoption to the U.S. from Guatemala. A birth mother decides that she wishes to relinquish her child for adoption, and signs the child’s care over to a lawyer or a children’s home. Some birth mothers decide this during pregnancy; others may not decide on this until they have cared for their child for some time. While notarial relinquishment adoptions are a private (or “extrajudicial”) legal matter between the birth mother and the adoptive family assisted by a notarial attorney, such adoptions are subjected to rigorous and extensive review and approval by certain courts and governmental agencies including the Guatemalan Family Court, the Procuraduria General de la Nacion (PGN – the Guatemalan Attorney General’s office), and by the U.S Embassy and Bureau of Citizenship and Immigration Services (BCIS). In a relinquishment adoption, the birth mother must appear a minimum of four separate times — which often spans a period of weeks to months—to give her unconditional consent to relinquish her child for adoption and to confirm her identity, her consent can be withdrawn at anytime through this process:
· To transfer custody to the attorney/hogar and request that child be placed for adoption
· For an interview with a social worker from Family Court
· Before a physician for DNA sample collection
· For her final signature on the adoption deed before the notarial attorney
Additional interviews and investigations can be required by the Family Court, the PGN, and the US Embassy/BCIS at their discretion.
Abandonment adoptions occur when a child has been abandoned by his/her biological family or when parental rights have been terminated due to neglect or abuse. In abandonment adoptions, a minors’ court judge is charged with determining whether the child truly is abandoned, which can take from 6 months to more than two years. The court conducts an extensive search for family members who may wish to accept custody of the child. If family members are not located, or are unable or unwilling to assume the child’s care, the judge issues a Certificate of Abandonment (COA). After a COA is issued, an abandonment adoption proceeds through most of the same steps as a relinquishment adoption.
Referral and Adoption Procedures*:
1. A woman who wishes to place her child for adoption contacts an attorney – directly or through an intermediary, authorizes the attorney to pursue an adoption, and assigns the attorney custody of her child with her Express Consent. The birth mother provides evidence of her identity to the attorney through her birth certificate, cedula (official photo identification card), and thumbprint, and provides records of the child’s identity and birth (hospital records, birth certificate). Copies of this information become part of the case file. The attorney places the child in foster care or a privately run orphanage.
2. The child has a basic physical examination by a pediatrician, and receives any required immunizations. The birth mother also is evaluated by a physician, and blood is drawn for HIV, hepatitis and syphilis testing.
3. REFERRAL The attorney or adoption agency refers the child to the (prospective) adoptive family with the following information: the child's and birth mother’s names, basic social and medical data (as available), and typically a photo of the child, his/her birth certificate, and the results of the birth mother’s blood tests.
4. POWER OF ATTORNEY The adoptive family accepts the referral and assigns Power of Attorney (POA) to the Guatemalan attorney to permit him/her to act on their behalf during the adoption process. Under Guatemalan law the same attorney may represent the interests of the birth mother and child, and the adoptive family.
5. The attorney registers the adoptive family’s POA with the Archivo de Protocolo, and .the family’s completed dossier, translated into spanish, is verified by the Minister of External Relations
6. FAMILY COURT The attorney submits the adoption file (dossier and POA, child’s and birth mother’s identity and medical documentation, birth mother’s signed Express Consent) to Family Court, and petitions the court to assign a social worker to investigate the case. The Family Court social worker reviews the dossier, interviews the birth mother, schedules appointments with the birth mother and foster family, and may visit the child in foster care or the orphanage. During the interview with the birth mother, the social worker explains that: (a) the adoption is irrevocable, (b) she will lose the patria potestas and guardianship of her child, and (c) she may never see the child after the adoption is final. The social worker asks the birth mother if anyone in her family can care for the child, and determines if the birth mother has voluntarily, freely, definitively, and irrevocably granted her express consent for her child to be adopted. The social worker writes a report that summarizes the facts of the case and attests to the birth mother’s reasons for deciding that she cannot parent the child. In most cases, the social worker recommends that the Family Court judge approve the adoption. The court reviews the social worker’s report and makes its recommendation. The birth mother appears before the notary and signs her second consent to place her child for adoption.
7. US EMBASSY – DNA TESTING. The US Embassy has required DNA testing since October 1, 1998, for all relinquishment adoptions of Guatemalan children by US citizens. After reviewing the adoption case file, the US Embassy authorizes DNA testing of the birth mother and child to confirm their biological relationship. The DNA process is as follows:
· The attorney presents all documents, photos, and medical test results to the US Embassy.
· The Embassy reviews the file and gives approval for the DNA testing, which is carried out by authorized medical personnel and analyzed by an approved laboratory in the US, under strict chain of custody procedures.
· The birth mother and child are escorted to the embassy-approved doctor where their identities are verified and saliva samples are collected for DNA analysis. The child’s thumbprint is taken and put into the adoption case file. To verify the child’s identity, US Embassy personnel compare this thumbprint to those taken when the birth was registered or when the birth mother signed custody of the child to the attorney. The birth mother’s identity is verified through her original cedula (photo identification card), a photocopy of which was entered in the adoption case file at the time the birth mother relinquished custody of the child to the attorney. The birth mother’s thumbprints are also taken. A polaroid photograph is taken of the birth mother holding the child on her lap and is attached to the DNA file. The birth mother and foster mother sign forms attesting to their identities, and the birth mother signs her consent for the DNA analysis.
· The laboratory sends a copy of the DNA test results (with photos) directly to the US Embassy in Guatemala, and to the adoptive parents and adoption agency.
· The US Embassy reviews the test results and all supporting documentation. If all documents are in order, the US Embassy/BCIS provides the attorney with the Consentimiento (consent form), which is required before the PGN will authorize the attorney to prepare the final adoption decree.
8. PGN REVIEW AND APPROVAL The attorney submits the adoption case file and a petition for approval of the adoption to a notarial** officer of the PGN. A PGN notary reviews all documents in the case file and, at his/her discretion, may independently investigate one or more aspects of the case. PGN may reject the file (issue a previo) any number of times for a wide variety of reasons that range from serious (e.g., irregularities in the birth mother’s or child’s identity documents) to minor (e.g., minor spelling errors, expired notary seals). The attorney for the birth mother and adoptive family corrects the problem and resubmits the case to PGN. Ultimately, the PGN typically concurs with the Family Court’s recommendation and issues its approval for the adoption to proceed.
9. ADOPTION DECREE. The attorney then prepares the final adoption Protocolo or deed, and meets with the birth mother for her to sign her final consent to the child’s adoption. The executed Protocolo is filed with the Archivo de Protocolo. At this point, the child is legally the child of the adoptive parent(s) under Guatemalan law.
CIVIL REGISTRY AND PASSPORT. The attorney presents the required documents to record the adoption at the Civil Registry where the child’s birth was recorded, and requests that a new birth certificate be issued to reflect the adoption, and to change the child’s surname to that of the adoptive family. The attorney then takes all documents including the new birth certificate and applies for the child’s Guatemalan passport. The child is again fingerprinted to affirm his/her identity.
US EMBASSY – FINAL APPROVAL AND VISA. The attorney presents the case file with the child’s passport and new birth certificate to the US Embassy. The Embassy again evaluates the file and, if all documentation is in order, issues a “Final Document Approval” or pink slip. (Note: Guatemalan passport is NOT required to submit the REQUEST for the pink slip, it is however required to PICK UP the pink slip from the US Embassy.) After the attorney receives this approval, the adoptive parents and child appear at the US Embassy for final verification, and an embassy official then issues a visa for the child’s entry into the US.
* These steps take place in the approximate order listed, but the exact order (especially of pre-Family Court steps) can vary from case to case.
** A notary in Guatemala is an attorney with additional legal powers, not, as in the U.S., simply a person who is authorized to certify signatures.