Here is a translation of the law that has been proposed to the Guatemalan Congress. There are some issues with the translation so please bear with them. I have given it one quick read and it reminds me of ICARE in that it does not spell out all the specifics, such as how it is determined that no domestic family exists for the child.
A few things I know of interest are that it does seem to end foster care as we know it. As someone whose daughter had the most wonderful care possible and who remains very close with her foster family, this is truly a shame! My daughter's foster family is now our family and that is a tie to her birth country that should be rewarded as being consistent with the Hague Convention and the UNCRC!
The good news for those of you in process is that it does state that you will be allowed to complete your adoptions under the current system. At least that is how I read it.
THERE IS NO REASON TO BELIEVE THAT THIS LAW WILL PASS AND IT IF DID, THERE IS EVERY REASON TO BELIEVE THAT IT WOULD BE OVERTURNED BY THE CONSTITUTIONAL COURT. So read this for information, not as something destined to become reality!
Decree number
Congress of the Guatemala Republic
Considering
That, according to what it is established by the article 1 of the Politic Constitution of the Guatemala Republic, the State is organized to protect the person and the family, having as a goal the realization of the common wealth. Based on that, and being that part of the rights that are inherent to persons is to have a family; its organization must be promoted based on the legal basis of marriage and responsible parenthood.
Considering
That the Guatemalan State recognizes and protects the adoption declaring of National interest the protection of orphan and abandoned children based on what is established in the article 54 of the Constitution of the Guatemalan Republic.
Considering
That it is necessary to create a organized group of laws to protect the Guatemalan children and that would grant their rights and that specifies as a priority all the adequate measures to allow the child or adolescent to remain with their families, or, in the case of given in adoption, that that process is based on the child or adolescent’s best interest
Considering
That the Guatemalan State has assumed a series of international compromises in what respects to the protection of the children and adolescents, specifically in what is related to international adoptions and because the current legal framework in our country do not respond to the basic principles of that institution, it is necessary to establish the corresponding regulations
Considering
That the Law of Integral Protection of the Childhood and Adolescence, Decree number 27-2003 of the Congress of the Guatemalan Republic establishes in the article 23rd that a special law must regulate what respects to adoptions
Therefore
In exercise of the attributions conferred by the article 171 section a) of the Political Constitution of the Guatemalan Republic,
Declares the following:
Adoption Law
Title 1
Of the Adoption
Chapter 1
Definition, Principles and Effects of Adoption:
Article 1. Definition and Juridical Nature. The adoption is a social institution of protection and order tutored by the State and for which it is restored the right to a family to one child or adolescent, family that is integrated according to our legislation, and from which the child or adolescent is received and welcomed as own son or daughter.
Adoption is complete, irrevocable and could not be resigned.
Article 2. Types of Adoption: Adoption can be National or International.
The adoption is national when the adoptive parents have their permanent residence in the Guatemalan Republic’s territory, with the objective that the child or adolescence would grow in National territory.
The adoption is international when it is realized by people of any nationality that have their resident in a foreign country and which the objective of transporting the child or adolescent out of this country
Article 3. Principles. The Regulating principles of the adoption are:
A. The best interest of the child
Any decision taken with respect to the adoption of a child or adolescent, must guarantee its best interest and it must ensure the realization of its rights.
B. The right to have a family
The child or adolescent has the right to remain with its biological family. In the case that this is not possible, it must remain with more distant relatives. If this is not possible, the child could be adopted, first of all, by a family that lives in its own community and, in the last case, by a family outside its community. If this is not possible, the child could be adopted by people outside its community but in the National territory and if this is not possible, then it could be adopted by internationals.
C. Subject of Right
The child or adolescent must be considered in all moments as subject of its rights
D. Tutoring
It corresponds to the Guatemalan Republic State to protect, control and facilitate the adoption of orphan or abandoned children.
E. Protection
The child or adolescent has the right to be protected by the State of any kidnapping or trade of children, prostitution or usage in pornography or any form of exploitation or sexual abuse
F. Expressed consent
The consent of the biological parents must be expressed in written form; it must be express freely and only after the child is born. Such consent could not be obtained in trade of money or any other kind of compensation.
G. Advisory
The biological parents and the adoptive candidates must be adequately advised about the consequences of their decisions along all the adoption process.
H. Opinion.
Every child or adolescent has the right to freely express its opinion and the right for it to be taken into account during the process of adoption, considering its age and maturity.
I. Lack of material goods
The lack of material goods from the biological parents does not constitute a sufficient justification to give their child or adolescent in adoption.
J. Social Nature:
Being the adoption an institution of social character, it is against its nature to obtain financial benefits or of other nature by the persons involved in it.
K. Nationality
The child or adolescent does not lose the Guatemalan nationality or the rights that are inherent to it, when is given in adoption.
L. Life and Integrity
The State must make sure that the life and integrity of the child and adolescent is being respected.
M. Equality of Rights
The State must make sure that the children or adolescents that are to be adopted by internationals, have at leas the same rights and guarantees than the Guatemalan legislation provides them.
N. Right of privacy
All the actions in the adoption process have the quality of confidential and certified copies of the documents could only be provided to the adopted child or adolescent, the adoptive parents or the biological parents.
Article 4. Effects of Adoption. With the adoption, the links of the adopted child or adolescent and their biological parents cease, and consanguinity links are generated among the adopted and the adoptive parents and relatives.
The elimination of the link with the biological parents do not eliminate the prohibitions contained in the Civil Code concerning the impediments about marriage.
Chapter II
About the subjects of the adoption
Article 5. Subjects that could be adopted
Could be adopted:
a. the child or adolescent who is orphan from both mother and father;
b. the child or adolescent that, in court sentence, his right to have a family has been declared endangered due to abandonment or lack of protection;
c. the child or adolescent whose parents have lost its custody;
d. the child or adolescent whose parents had voluntarily declared their wish to give their child in adoption; and
e. the son or daughter of one of the spouses or united-partner that has expressed its consent according to the law.
When two or more siblings are susceptible of being adopted, they could not be separated before or during the adoption process. In the same way, it must be attempted for them to be adopted by the same family, except when there are reasons responding to their best interest.
Article 6. Adoptability. Adoptability is understood as the declaration that establishes that a child or adolescent needs an adoptive family and that it has the physical, psychological, emotional and social capability to adapt to the new family. Every child or adolescent that has been declared as in state of adoptability could be subject of adoption.
Article 7. Subjects that can adopt. Could adopt:
a. the persons that are united in marriage or in legally declared union; and
b. single persons
Article 8. Difference in age. The person who is intending to adopt a child or adolescent must have a difference in age with the child of at least fifteen years.
This rule does not apply when the child to be adopted is the son or daughter of the spouse or legally declared partner and when the couple is been living together for at least for years.
Article 9. Adequacy of the adoptive parent(s). To determine the adequacy of the adoptive candidates it must be taken into account, besides the age difference, the following: have ethic, moral and sociocultural qualities besides the physical and psychological capabilities to foster the full development of the child or adolescent. This adequacy must be accredited by the Adequacy Certificate.
Article 10. Exceptions to the Adequacy. It will not be necessary to obtain the Adequacy Certificate when the adoption is of a person who is not a minor, if this persons expressly manifests its consent, and only if the adopted person had lived with the adoptive parents for a period not less than 3 years, or if is one of the partners in a couple that is to adopt the child.
Article 11. Impediments to adoption. Have impediments to adopt:
a. Those persons who suffer of diseases, mental or behavioral disorders that represent a risk to the health, life, integrity or full development of the child or adolescent;
b. Those persons that have physical or psychological dependence to drugs or psychoactive substances;
c. Those persons indicted for crimes against the integrity of the child or adolescent;
d. The spouse or legally declared partner without the expressed consent of the other.
Article 12: Material goods of the adopted. In the case that the adopted child owns material goods, the adoptive candidate will be under the same regulations regarding the rights and responsibilities than the biological parents in what respects to the administration of such material goods.
The tutor could not adopt a pupil as long as the tutored administration of the accounts and the material goods have not been given to the pro-tutor.
Article 13. Rights and Obligations. The adopted child or adolescent will have the same rights and obligations than the biological sons or daughters with their parents.
Article 14. Prohibitions. Given that the adoption is a social institution of protection, it is prohibited that:
a. The persons involved in the adoption obtain financial benefits or other kind of benefits;
b. The biological parents would decide who is to adopt their child or adolescent;
c. The adoptive parents use or decide to use the organs or tissues of the child or adolescent, either for their family or third parties; and
d. The authorization of adoption without fulfilling all the requisites and procedures that are established by the law; and
e. The persons involved in the process of adoption have any association with the private entities that are responsible of the care of children or adolescents that are in state of adoptability.
Title II
OF THE INSTITUTIONS RELATED WITH THE ADOPTION
CHAPTER 1
OF THE RECTORY OF ADOPTIONS
Article 15. Creation. The National Rectory of Adoptions is created and will regulate in what respects to adoptions.
Article 16. Juridical Nature. The National Rectory of Adoptions is a technical institution, deconcentrated with functional independence, ascribed to the Secretary of Social Wealth of the Presidency and that depends financially from it.
Article 17. Integration. The National Rectory of Adoptions will be integrated in the following manner:
a. The Attorney for Childhood and Adolescence of the Office of the National Attorney General will coordinate it;
b. One representative designated by the Secretary of Social Wealth of the Presidency;
c. One representative designated by the National Commission for the Childhod and Adolescence; and
d. One representative designated by the Ministry of Foreign Affairs. Simultaneously with the designation of the titular of each position, one substitute will be designated and they will have the ability to decide and could not delegate their functions. The member of the National Rectory of Adoptions will remain in their positions for four years.
Article 18. Of the requisites to be member of the National Rectory of Adoptions. To be a member, the following requisites must be fulfilled:
a. be a Guatemalan citizen by birth;
b. be of recognized honorability;
c. be a professional and active collegiate; and
d. be in full possession of its rights as a citizen
Besides the above-mentioned requisites, the persons integrating the National Rectory of Adoptions should be chose preferentially among those persons with experience in the issues related to childhood and adolescence and in conformity of the Ethic Norms of the Executive Organism.
Article 19. Prohibitions to be member of the National Rectory of Adoptions. Could not be members of the National Rectory of Adoptions:
a. Those persons sentenced in hearings for accounts;
b. Those persons sentenced for crimes DOLOSO;
c. Those persons sanctioned by their professional college;
d. Those persons connected to or representing the interests of public or private entities that provide care to children or adolescents.
Article 20. Functions of the National Rectory of Adoptions. Functions of the National Rectory of Adoptions are:
a. To ensure the protection of children and adolescents in the process of adoption and to take the appropriate measures to prevent that material benefits are obtained from it;
b. To receive the adoption applications and create the respective file;
c. To maintain and facilitate the control and registration in the process of the adoption;
d. Promote and provide the advisory services in what respects to adoption;
e. To receive from the Central Authorities or equivalent authorities in other countries, the applications for international adoptions, verifying their authenticity through the Ministry of External Relations;
f. To maintain an archive of the realized adoptions, national and international;
g. To maintain an archive of the process of adoptions and the consent of authorization to initiate the process;
h. To maintain an archive of notaries that intervene in the process of adoptions;
i. To maintain an archive of children and adolescents in state of adoptability;
j. To maintain an archive of persons who wish to adopt;
k. To execute DNA testing and other scientific tests to verify the paternity of the biological parents;
l. To maintain an archive of scientific tests, photographs and DACTYLAR, PALMAR AND PLANTAR prints of the children or adolescents in state of adoptability.
m. To declare and certify the adoptability of the child or adolescent in the process of adoption;
n. To provide the certification of induction to adoption;
o. To certify and provide the Certificate of Adequacy;
p. To request the Certificate of Adequacy from the Central Authority or its equivalent;
q. To authorize the period of socialization with the adoptive parents according of that it is established in the law;
r. To provide the Certificate of Empathy;
s. To verify that the consent of the parties is obtained according to the present law;
t. To provide a final resolution to establish the precedence of the adoption;
u. To request to the pertinent institutions the information necessary to fulfill its obligations;
v. To provide the required information about the National Legislation in what respects to adoptions to the Central Authorities or the equivalent authorities in other countries;
w. To request information about legislation in what respects to adoptions from the Central Authorities or the equivalent authorities in other countries;
x. To follow the course of the national adoptions according to the present law and its regulations;
y. To follow the course of the international adoptions maintaining frequent communication with the Central Authorities or the equivalent authorities in other countries in coordination with the Ministry of Foreign Affairs
z. Exchange evaluation reports with the different Central Authorities or international organizations to crate an adequate supervision of the process in the receptor country in coordination with the Ministry of Foreign Affairs; and
aa. Any other function pertinent to the fulfillment of its obligations.
Article 22. Normative capabilities. The National Rectory of Adoptions will dictate the regulations about its own organization and operation.
Article 23. Exercise of functions. The members of the National Rectory of Adoptions will execute their functions in independence of the entity that designated them and in conformity to the principles of impartiality and dignity inherent to their positions.
Article 24. Sessions of the National Rectory of Adoptions. The National Rectory of Adoptions will have sessions as many times as required and their members will establish what respects to ordinary and extraordinary sessions.
Article 25. Quorum. For the sessions of the National Rectory of Adoptions it is required the presence of all its members, with the possibility of calling the substitute members to take the place of the absent titular
Article 26. Voting. The resolutions of the National Rectory of Adoptions must be unanimous among their members.
Article 27. Of the multidisciplinary team. To achieve an effective fulfillment of its obligations, the National Rectory of Adoptions will have the support of a multidisciplinary team constituted by: lawyers and public notaries, clinic psychologists, social workers, psychiatrists, internal-medicine doctors, pediatricians and any other professional that the National Rectory of Adoptions considers adequate.
Article 28. Of the requisites needed to be a member of the multidisciplinary team. To be a member of the multidisciplinary team the same requisites to be a member of the National Rectory of Adoptions apply.
Article 29. Of the functions of the multidisciplinary team. Functions of the multidisciplinary team are:
a. Provide advisory to involved parties regarding the process of adoption;
b. Write the report about the child or adolescent susceptible of being adopted, that contains the information regarding the identity, social environment, personal and familiar development, medical history of the child or adolescent and its family and all what is related to its future needs. If for any reason any of the information could not be presented in the report, it must be explicitly stated;
c. To execute the required investigations and tests requested by the National Rectory of Adoptions and to suggest other that consider adequate;
d. Express opinion regarding the Adequacy of the adoptive candidates, the adoptability of the child or adolescent, the empathy between the adoptive candidates and the child or adolescent and the advisory required for the process;
e. Write the final report to the Rectory; and
f. Other functions that, according to their technical work, would be required by the National Rectory of Adoptions.
CHAPTER III
OF THE SECRETARY OF SOCIAL WEALTH OF THE PRESIDENCY OF THE REPUBLIC
Article 30. Secretary of Social Wealth of the Presidency. The Secretary of Social Wealth of the Presidency is in charge to protect the children and adolescents in state of adoptability, who will go into the orphanages, homes or substitute families of the State.
Article 31. Of the functions of the Secretary of Social Wealth of the Presidency in what respects to adoptions. In addition to the functions attributed to the Secretary of Social Wealth of the Presidency by the Agreement No ***, this institution must:
a. Write a file for each child in state of adoptability in which it states that:
a.1 Information and circumstances and photographs of the child or adolescent;
a.2 Its complete identification given by birth certificate that contains DACYLAR, PALMAR AND PLANTAR prints, as well as fingerprints of the mother when it is adequate;
a.3 Medical history
b. Maintain an archive of the children and adolescents whose right to have a family has been declared endangered and of the institution where they are receiving attention;
c. Maintain an archive of the children and adolescents that have been voluntarily given by their parents;
d. Maintain an archive of the private entities that provide care to children and adolescents in state of adoptability; and
e. Authorize, supervise and control the private entities that that provide care to children and adolescents in state of adoptability.
CHAPTER III
ABOUT THE PUBLIC OR PRIVATE ENTITITES DEVOTED TO PROVIDE CARE TO CHILDREN OR ADOLESCENTS
Article 32. About the registration of the private entities. The private entities devoted to provide care to children or adolescents must register in the Secretary of Social Wealth of the Presidency, indicating the address where the children or adolescents are hosted, their carrying capacity and type of population assisted. In addition, they must attach a certified copy of the following legal documents:
a. Certificate of the corresponding foundation of the institution, adequately registered in the corresponding Civil Registry;
b. Document of Appointment of the legal representative of the institution;
c. List of employees and respective positions;
d. Favorable statement about the functioning of the institution by the Ministry of Public Health and Social Assistance;
e. Favorable statement about the functioning of the institution by the corresponding County office;
f. Other that are to be required by the Secretary of Social Wealth of the Presidency
Article 34. About the supervision of private entities. The private entities devoted to provide care for children and adolescents will be supervised by the Secretary of Social Wealth of the Presidency, at least once a month.
To perform this supervision, the private entities must allow the ingress of adequately identified staff members of the Secretary of Social Wealth of the Presidency to their facilities and provide them with the required information.
Article 35. Penalties. The houses, child care centers, and any other institution of public service, as well as all the private entities that provide care to children and adolescents, that fail to meet the regulations and norms established in this law, as well as the directives of the Secretary of Social Wealth of the Presidency will be penalized in the following manner:
a. If the failure is considered light the institution or entity will receive a written call;
b. If the institution or entity persist in failing, or if the fault is severe , a fine of twenty five thousand to one hundred thousand quetzales will be imposed according to the severity of the fault; and
c. If after the fine is imposed, the institution or entity persists in failing, a definitive closure of the entity will be imposed, through a well founded decision with previous audience to get to know the case.
TITLE III
ABOUT ADOPTABILITY
UNIQUE CHAPTER
Articulo 36. Stage previous to the process of adoption. Previous to initiate the process of adoption, the process of induction must be completed during a period of not more than 10 days.
Article 37. Process of induction to adoption. The process of induction to the adoption process consist of an individual, professional advisory service directed by the multidisciplinary team of the National Rectory of Adoptions, with the objective of informing about the consequences of adoption. This inductive process must be must be verified by the National Rectory of Adoptions in the respective registry.
The boy of rules of this law will determine the manner in which this process will be performed.
Article 38. Process of induction to the biological parents. The biological parents of the child or adolescent to be voluntarily given in adoption, must go to the National Rectory of Adoptions and express their voluntary intention to give their son/daughter in adoption and perform the induction process only after the child is born.
If after completing the process of induction, the parents persist in their intention to give their son/daughter in adoption, they must appear before the Rectory, where it will be certified in an act of consent.
Article 39. Scientific tests. Once the above-mentioned requisites are completed, the Desoxiribonucleic Acid test must be performed as well as the registration of the finger prints of the parents and the finger, hand and feet prints of the child or adolescent whom, after the declaration of adoptability is completed, will be transported to the adequate center.
Article 40. Children and adolescents whose right to have a family has been threatened. The adoptability of a child or adolescent, whose right to have a family has been declared as threatened by a court sentence, could be declared through a study performed by the multidisciplinary team in which it is established his/her need of a family and his/her physical, psychological, emotional and social ability to adapt to it.
TITLE IV
PROCESS OF ADOPTION
CHAPTER I
Articulo 41. Process of induction to the adoptive parents. The persons who wish to adopt a child or adolescent must be subject to the inductive process and, when the adoptive parents are internationals, they must present a certification extended by the Central Authority of their country of its equivalent, that states that they already were subjects to the inductive process.
Article 42. Requisites of the Adoption Application for National Adoptive parents. Once the inductive process is completed, the adoptive should present its application to the National Rectory of Adoptions.
The adoptive who is Guatemalan citizen, must indicate in its application its complete name, age, civil status, nationality, address, Identification Document and mail address to receive notifications. In addition, the adoptive must propose two witnesses. The following documents must be attached to its application:
a. Original or certified photocopy of the birth certificate, and the place of registration of its “cedula de vecindad”, extended by the corresponding Civil Registry;
b. Lack of criminal record of each of the applicants;
c. Original or certified photocopy of the marriage or legalized union certificate of the adoptive applicants, extended by the respective Civil Registry;
d. Certification of employ or income of the applicants;
e. Health certificate of the applicants and of those who live with them;
f. Recent photographs of the applicants; and
g. Certificate of the completed inductive process, extended by the National Rectory of Adoptions.
Article 43. Requisites of the adoption application for international adoptive parents. The international applicants must attach the documents described below, with the necessary law approvals so they can be effective inside Guatemalan territory:
a. Document stating the legal representative in Guatemala;
b. Legalized photocopy of the Identification Documents;
c. Birth certificated extended by the corresponding authority;
d. Lack of criminal records of each of the applicants, extended by the corresponding authority in their country;
e. Marriage or legal union certificate, extended by the corresponding authority in their country;
f. Certification of employment or income of the applicants;
g. Health certificate of the applicants and the persons living with them;
h. Recent photographs of the applicants;
i. Certificate of completion of the Inductive process, extended by the corresponding authority.
Article 44. Additional documents for the international adoptions. In addition to what is required in the above articles in what applies to international adoptions, the applicants, both national and international, must attach the following documents:
a. Witnessed declaration, under oath before the Central authority or its equivalent or before a public notary of the State of origin of the applicants, of two persons who know the applicants for at least two years and who indicate about the financial capability and ethics that will make them able to achieve the obligations that adoption imposes;
b. Certification of Adequacy extended by the Central Authority or its equivalent in the country of origin of the applicants. In the case that the Central Authority is inexistent, it must be extended by the National Rectory of Adoptions following the established procedure.
c. Certification of the completed inductive process extended by the Central Authority of the State or origin of the applicants. If there is no Central Authority or its equivalent, a certification extended by the National Rectory of Adoptions must be presented.
d. Commitment of the Central Authority, and the Adoption Agency in the foreign country when it applies, to provide all the information that will allow to track the development/adaptation of the child or adolescent in its new home.
e. Proof of commitment extended by the Central Authority or Consulate of the receptor country, in which is stated that the child or adolescent can ingress and permanently reside in such country in the moment in which the adoption is legally formalized.
Article 45. Declaration of the Witnesses. Within five days following the day when the application was presented, the National Rectory of Adoptions will summon the witnesses, proposed by the Guatemalan applicants, to present declaration according with that the law requires.
Article 46. Certificate of Adequacy. The disposition and aptitude of the applicants to adopt will be stated in a certification extended by the National Rectory of Adoptions within the five days following the declaration of the witnesses and taking into account, besides the age, the following:
a. That the adoptive applicant possess the ethic and moral capabilities; and
b. That the adoptive applicant possesses the physical and psychological capabilities to foster the full development of the child or adolescent.
This certificate will not be required for the exceptions defined in the Article 10 of this law.
Article 47. Socialization period. After the witnesses had presented their declaration, the National Rectory of Adoptions will authorize a period of coexistence and socialization of no less than eight working days for both the national and international adoptions. This period will be supervised for a specialist designated by the National Rectory of Adoptions, who could request assistance of the multidisciplinary team if he/she considers it necessary.
Article 48. Opinion of the child or adolescent. Within the ten days after the socialization period is concluded, the National Rectory of Adoptions will summon the child or adolescent, according to her/his maturity, for him/her to ratify his/her wish to be adopted.
Article 49. Certificate of Empathy. After the socialization period concludes, and taking into consideration the opinion of the child or adolescent, the National Rectory of Adoptions will extend a certificate of empathy in which it qualifies the quality of the relationship of the child or adolescent and the applicants. This certificate must be extended within eight days and must be taken into consideration to declare if the adoption proceeds or not.
Article 50. Final resolution of the National Rectory of Adoptions. Once all the above mentioned requisites are fulfilled, and based on the final report of the multidisciplinary team, the National Rectory of Adoptions will inform of, in a period no longer than five working days, the corresponding final resolution approving or denying approval for the requested adoption. The resolution that approves all the administrative stages should be voted unanimously.
Article 51. Judicial Intervention. Once the final resolution of the National Rectory of Adoptions is released, this must send the respective file to one Family Court to validate it or not through the corresponding action. It the application is declared valid, it will order the writing of the public decree of adoption.
Article 52. Registration of the adoption. The public decree of adoption must be presented to the corresponding Civil Registry for its registration in the book of adoptions.
TITLE
DEROGATIONS AND MODIFICATIONS
Article 53. The article twenty-eight of the decree number fifty-four hyphen seventy-seven (54-77) of the Congress of the Republic it is modified and will be read as: Article 28. Formalization. The adoption regulated by this law could be formalized before public notary.
Article 54. The article twenty-nine of the decree number fifty-four hyphen seventy-seven (54-77) of the Congress of the Republic it is modified and will be read as: Article 29: Application. The application of a person who wishes to adopt another one could be presented before a public notary, bringing the documents mentioned in the article *** of this law.
Article 55. The article thirty of the decree number fifty-four hyphen seventy-seven (54-77) of the Congress of the Republic it is modified and will be read as: Article 30. Inventory. If the minor possesses material goods, a legal inventory will be performed and it will constitute as sufficient guarantee for the adoptive before to satisfy what the notary requires.
Article 56. The article thirty-one of the decree number fifty-four hyphen seventy-seven (54-77) of the Congress of the Republic it is modified and will be read as: Article 31. Requisites for the Tutor. If the applicant was the tutor of the child or adolescent, the notary must oversee the documents that present evidence that their accounting was approved and that all the material goods were handled out.
Article 57. The article thirty-two of the decree number fifty-four hyphen seventy-seven (54-77) of the Congress of the Republic it is modified and will be read as: Article 32. National Rectory of Adoptions. Once completed the above mentioned requisites, the notary will send the file to the National Rectory of Adoptions for it to perform the administrative procedure as indicated in the chapter *** of this law.
Article 58. The article thirty-three of the decree number fifty-four hyphen seventy-seven (54-77) of the Congress of the Republic it is modified and will be read as: Article 33. Deed. When the adoption deed is written, it must be present the adoptive applicant and the institution who is providing care of the child or adolescent. The notary will extend the respective document and send it to the corresponding Civil Registry with the objective of registering it in the corresponding file.
Article 59. The second paragraph of the article four of the Civil Code is revoked, decree of law number 106.
Article 60. The Chapter VI, Title II of the Book I of the Civil Code is revoked, decree of law 106.
TITLE
TRANSITIONAL DISPOSITIONS
Article 61. Adoptions in process of legalization at the moment when this law becomes in force, they must be legalized according to the dispositions of the law that was used to initiate the process.
Article 62. Children and adolescents under the care provided by foster families at the moment when this law becomes in force. Within thirty days the National Rectory of Adoptions will evaluate and confirm the situation of children or adolescents under the care provided by foster families.
Article 63. Deadline for the registration of the private entities in the Secretary of Social Wealth of the Presidency. All the private entities that provide care to children must register in the Secretary of Social Wealth of the Presidency within the fifteen days after this law becomes in force.
Article 64. Regulations of the law. Within fifteen days following the entrance in force of this law, the corresponding group of regulations must be emitted.
Article 65. Deadline for the integration of the National Rectory of Adoptions. The entities in charge of assigning a representative for the National Rectory of Adoptions must do so within the thirty days after this law becomes in force with the objective of integrating the National Rectory of Adoptions in the five days following the members’ designation.
TITLE
IN FORCE
Article 66. The present decree will become in force eight days after its publication in the Official Newspaper.
Kevin--
Thanks so much for the posting. It is very helpful to have access to actual facts. A couple of things that I got from this:
The state will regulate families that care for children (as you said in another post, no more foster families as we know them). This could be good, or bad, depending on the administration of the provision. Some foster mothers will no doubt be excluded, but some nightmare stories that I have seen in previous postings might be precluded.
Parents with other children in the home will have to have health letters for those children--a "hot topic" at present, and another level to have to comply with.
Not sure about the "tutor" provisions--possibly refers to guardians? I'd be interested in knowing what this means.
The other major change that I noticed would be that parents would have to spend at least 8 days in country with the child before the adoption is final. This is not a bad idea, but complicates things a bit--a big advantage of Guatemala was not having to travel for so long. Of course, many parents (like us) visit before the adoption is final anyway, so it wouldn't be such a big deal for them.
Again, thank you for your information.
Posted by: Carolyn Atkinson at October 19, 2004 06:50 PMIt looks like the first BIG piece of news is in Article 61.
Article 61. Adoptions in process of legalization at the moment when this law becomes in force, they must be legalized according to the dispositions of the law that was used to initiate the process.
That looks to me like "in process" adoptions will be allowed to complete under the existing system. Now, all we need to know is the definition of "in process." Does that mean "POA filed" or "DNA completed" or "FC interview done" or ....?
The next big change from the point of view of the adoptive parents would seem to be the need for considerably more time in travel to Guatemala, as spelled out in Article 47.
Article 47. Socialization period. After the witnesses had presented their declaration, the National Rectory of Adoptions will authorize a period of coexistence and socialization of no less than eight working days....
Then, Articles 48,49, and 50 look like they could add another three weeks to the process, making adoption in Guatemala resemble other countries where either 2 trips, or one long trip of 20+ days would be required. That would eliminate one of the many reasons that Guatemala is such an attractive program, especially for those with other children at home who cannot easily be left behind for 20+ days of parental absence.
Article 48. Opinion of the child or adolescent. Within the ten days after the socialization period is concluded, ....
Article 49. Certificate of Empathy. [...] This certificate must be extended within eight days ....
Article 50. Final resolution of the National Rectory of Adoptions. ...in a period no longer than five working days, ....
Now, having said all that, I don't know what to make of Article 3, subsection I:
I. Lack of material goods
The lack of material goods from the biological parents does not constitute a sufficient justification to give their child or adolescent in adoption.
What does that really mean?
Posted by: Jennifer Amon at October 20, 2004 12:46 AMCarolyn,
I could be mistaken but I do not believe that private families would be permitted to provide foster care under this law. Some things get lost a bit in translation and I can see how by reading it that is not clear. But what the bill calls for is state approved hogares that must be inspected every 30 days. There's no way they could do that with private foster families.
Jennifer, the "being poor is not a reason" thing is straight out of the UNCRC. However, not being able to provide food and that type of necessity is, I believe, not what they mean. But it is this type of provision that likely only results in more abandonments.
Kevin
Guatadopt.com
If I am wrong, I'm sorry. Please let me know.
But doesn't this "B. The right to have a family
The child or adolescent has the right to remain with its biological family. In the case that this is not possible, it must remain with more distant relatives. If this is not possible, the child could be adopted, first of all, by a family that lives in its own community and, in the last case, by a family outside its community. If this is not possible, the child could be adopted by people outside its community but in the National territory and if this is not possible, then it could be adopted by internationals."
Sound an awful like what the Hague Convention had in mind?
It doesn't seem so bad to me. I actually know of foster parents who kept the children in a bar, both day and night. It isn't bad to have oversight. I had a horrible foster mother at one point that totally neglected my child.
Many countries ask for a "residence" during a supervised trail period. This is actually a good thing. While it may be inconveinet, it isn't asking too much when we are talking about children's lives.
I think we may need to stop and take a look at what is being proposed. Maybe it will even make the process less expensive and open it up to less "wealthy" families.
Posted by: Luis at October 20, 2004 05:25 PMSOUNDS LIKE THE HAGUE TO ME AS WELL.DOES ANYONE KNOW WHEN WE SHOULD HEAR THE "OUTCOME" OF THIS PROPOSED LAW?
Posted by: KATY at October 20, 2004 10:12 PMI also wonder what the 'time frame' is for this proposed law. Does it require 3 votes to pass? Does anyone know when it will be heard?
Sharon
Natalie's Mom
(and thinking strongly about one more!)
Our little boy had a great Foster Family. Our Foster Mother did a wonderful job with him. My Husband and I are greatful to her and her family. Our son was with them 13 months and you could just see the love they had for him when they brought him to us. We are sending quarterly pictures and letters to our Foster Family of our son. Hopefully they will know that we care deeply for them and want them to still have a part of this precious little boy.
Posted by: Robin at October 21, 2004 09:47 AMRobin,
You were so lucky to have a very caring foster mother for your child. Some prospective couples were not so lucky. We were one of them. Our daughther was so badly neglected by her foster mother, she was very ill when we arrived in Guatemala to bring her home. This woman should never be allowed to have any child in her care, and we dont know to this day whether she still has?
My opinion on foster care...
Certainly they should be licensed somehow and there should be legal standards of care beyond only having two kids per household. The attorneys are the child's legal guardian and they should be held responsible for not ensuring that the care meets the standard.
I also think that one way to minimize the chances of children receiving poor care is for there to be direct contact between foster families and the parents while in process. You should be able to meet them while you visit without the lawyer present. You should be able to communicate with them during the process. This would make it much more difficult for the lawyers to hire people who do it only for the money.
It is a sad truth that some lawyers don;t pay their foster families enough to provide adequate care. And this is one reason why SOME (not all) lawyers insist on keeping families away from teh foster families. And then there are other things that can happen. Our lawyer provided our foster family with formula so that they didn't need to buy it themselves. But our foster mom told us that she had had offers from people to buy the formula from her. We were lucky in that our foster family loved our daughter like their own so she would never do that kind of thing. But these are the types of thigs that can happen.
Another thing is regular medical checkups from a good doctor. If you're getting monthly medical updates, whcih you should, then it would make it harder not to provide good care.
Some of these things are reforms that would be positive without removing children the chance to live in a family environment. Foster care is a tough one - look how bad it is in the US! At its best, IMHO, it is definitely preferable to institutinal care. But at its worst, it can be atrocious if there is nothing to stop it.
Kevin
Guatadopt.com
Rudy Rivera used to have the Catholic Charities report on UNICEF activities posted on the Children of the World web site. It was very informative and showed how political activities have driven UNICEF to the point of view that population control trumps the life of the child.
I agree with Kevin there is an anti-US bias at the UN, but I don't think that is what drives the anti-adoption push per se. (I would also be careful not to imply that disagreeing with the US led war in Iraq somehow justifies the UN foreclosing the lives of thousands of children in Guatemala) The head of UNICEF is a US person (I think) - nominated by President Clinton. It is a World-view issue.
Pesronally, I am a member of neither party. My concern for immigrants puts me at odds with conservatives, my concern for children puts me at odds with liberals. But being interested mostly just in protecting the kids, I can't see anything good coming out of Kerry's election. If Senator Kerry wins the election, I hope that this contact with international adoption that someone mentioned helps. I fear it won't though, because it is going against the grain of his record and his party. He will be looking to get along with the UN, not confront them. And socially, he lines up with their pro-choice values. Very few voters adopt internationally... and not all of us that do stay involved with the issues. (To soothe my fears, if anyone can find cause to disagree with that assessment, I would appreciate it, as I fear he may indeed be taking up the office in January.)
As for the other side, I think the only reason the pro-life groups in America haven't rallied around this problem more is that they do not realize what UNICEF has done to countries like Peru, El Salvador, and Cambodia. Where the adoption route has been cut off, abortion has taken its place. It is UNICEF's twisted idea of the child's best interest. If this were to hit the mainstream in any way, I think the Republican party, (although I agree it has not been much help up to now) would be the best hope to create pressure, if only because that is where most social conservatives find their home.
My bigger question to anyone who can answer it is this... what carrot/stick does the UN have over Guatemala to stop adoptions? Guatemala must look at the history and the bulging orphanages of other countries UNICEF has 'saved' and see that it will wind up costing them and creating a human tragedy in the long term. Is it IMF money or just the desire to be accepted by the 'beautiful people'? (read Europe)
I hope everything works out for the people in the process. We were caught in the last UN mess, it delayed us for months. But our child was worth the wait. We love him he has changed our lives. Our prayers go out to everyone. Especialy to the kids.Our son has been here for almost a year.
Proud parents of a beautiful Guatemalan child
ASV
I think on the whole this proposal is a bit less insane than the Vallardez law but I am not sure how feasible it would be to put into practice.
The process as outlined is highly labor intensive on the part of the Guatemalan Government. They mandate visiting every hogar every 30 days, supervising the visits with adoptive parents in each case with teams of specialists available on call, and then completing all the post-visit paperwork within ten days. It seems to me they could only comply with this if they cut the number of adoptions down to a trickle or devoted a big chunk of their budget to setting up the proposed adoption system.
Posted by: Karen at October 22, 2004 08:05 PMKevin,
I appreciate your current information on the proposed adoption law changes in Guatemala. My husband and I are in the process of completing our paperwork for adoption in Guatemala and this information came at a very good time.
While we're both a bit nervous about what the possible changes could mean for us, your information and thoughts have helped a great deal. I'll continue to follow your updates.
Marybeth