‘Residing with’ an adopted child for 2 years

There are US citizens and lawful permanent residents in the US who want to adopt and petition a child from the Philippines. In many cases, they adopt a relative’s child (such as an out of wedlock child of a niece, a grandchild, or a brother got his girlfriend pregnant, and the brother lets the couple adopt the child).

The couple takes numerous trips to the Philippines to attend court hearings, and finally obtains an adoption decree, only to find out that, in order to petition the child, one of them needs to live (or reside) with the child, under the same roof, in the Philippines, for at least two years. Since they are already established in the US, and have stable jobs and property here, it would be extremely difficult for them to comply with this requirement. If they cannot do so, the case will be denied.

The basic requirements for an adoption petition are:

1. The child must be adopted before the child’s 16th birthday, pursuant to a final court order or decree. Informal agreements, and the like, are not effective.

2. The couple must have at least two years of legal custody, meaning they must wait at least two years from the date of the final adoption decree before they can file the petition.

3. The couple must also have at least two years of physical custody of the child, meaning at least one of them must have lived with the child, under the same roof, for at least two years. This can take place before or after the court decree, and does not need to be two solid, continuous years.

Most couples can satisfy the first two requirements, but cannot move back to the Philippines to live with the child under the same roof, to satisfy the two years of physical custody. However, US immigration law requires that the petitioner or spouse must have “resided” with the adopted child for at least two years, and the government would want documentation establishing that this requirement was met, such as the child’s medical records, pictures together, insurance records, school records, dental records, tax returns listing the child as a dependent (if applicable), or other evidence establishing that the adoptive parents resided with the child for at least two years.

Court cases have also held that “mere visits” by the adoptive parents may not necessarily satisfy the two-year physical custody requirement. In such situations, the government may not consider these visits to be “residing with” the adopted child, but rather the adoptive parent has merely visited the child during an annual vacation. While the two-year physical custody does not have to be continuous, residing with the child involves more than a succession of visits by the adopting parents for a few weeks, during annual vacations.

In addition, if the biological parents continue to live with the child, or have significant contact with that child, the USCIS and/or Embassy may not recognize or accept the validity or legitimacy of that adoption. This is because if the child is adopted, it is expected that the adoptive parents take over the parental role, and the biological parent should not be a part of that child’s life. It could be analogous to a situation where a person divorces their first spouse, and marries an American citizen, but continues living with the first spouse. Would you call that arrangement (or marriage to the American) bona fide or legitimate, or does it look fixed? In the same way, if a couple adopts a child, and the biological parents continue raising the child, is the adoption really legitimate?

If you are considering petitioning an adopted child to immigrate to the US, you should first consult with an immigration attorney, who can advise you of all the requirements and steps, to see if you can comply with the US immigration laws on petitioning an adopted child. I have come across many cases where the couple went through all the time and trouble of obtaining an adoption decree in the Philippines, but could not fulfill all the US immigration requirements.

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