How does the cancellation of the adoption of a child work? Grounds, procedure, legal consequences

Author of the article: Yulia Kaisina Last modified: January 2021 16513

Adoption is one of the ways to legally formalize the transfer of a child to a family. It is assumed that the new relationship will be permanent and the child will find new parents. However, sometimes it becomes necessary to cancel an adoption. The grounds for such a step are provided for in Art. 141 RF IC. Cancellation of adoption is carried out in the interests of the child and is partly similar to deprivation of parental rights. However, since the adoptive parents are not related by blood to the children, the procedure has additional nuances.

What is adoption?

Adoption is a procedure by which an unrelated adult and a child become legally a parent and a son/daughter.

You can adopt a child in cases where his parents:

• gave consent to adoption;
• died;
• deprived of parental rights (more than 6 months ago);
• unknown.

Adoption takes place in court. The adoptive parent and the adopted child receive the rights and responsibilities of a parent and a child from the moment the court decision enters into legal force.

Grounds for cancellation of adoption

But a new family cannot always cope with the changes that arise. Therefore Art. 140 of the RF IC provides for the possibility of canceling an adoption if there are sufficient grounds for this.

The reason for canceling an adoption may be:

1. Adoptive parents shirk their assigned responsibilities.
   Evasion of responsibilities means neglect of the needs of the child (refusal of material support, treatment, provision of food, clothing, school supplies, violation of the right to education). A popular example of evasion of responsibilities is refusal to pay alimony during a divorce of adoptive parents. Malicious evasion can not only become a reason for cancellation of adoption, but also for criminal prosecution. Moreover, the obligation to pay alimony will continue after the adoption is cancelled.
2. Adoptive parents suffer from alcoholism or drug addiction.
   Chronic alcoholism or drug addiction is grounds for deprivation of parental rights. But the adoptive parent cannot be deprived of parental rights. In such a situation, to protect children's rights, the adoption is canceled at the request of the prosecutor or the guardianship department.
3. The adoptive parents abuse the child.
   This fact can be proven by a court verdict. If the adoptive parent is held liable for beatings or sexual violence, then the adoption must be canceled at the request of the district guardianship department.
4. At the initiative of the adoptive parent or adopted child.

If family relationships do not work out, then either party can initiate cancellation of the adoption. A child from 10 to 14 years old can contact the guardianship department so that they initiate the process on his behalf. From the age of 14 he can already be an independent plaintiff in the process. The reason for going to court may be the appearance of parents or other blood relatives of the child with whom he would like to live. Another reason may be a lack of mutual understanding in the family.

Note! If citizens adopt a child, and after the court decision enters into legal force, a disease is discovered about which they were not warned, then they can cancel the adoption. In this case, the adoption is considered terminated due to the fault of the guardianship department, not the family. Therefore, alimony is not collected from adoptive parents.

The list of reasons is not final. Each situation is considered by the court individually. If the court believes that the rights of the child in the adoptive family are being violated, then it can make a positive decision in other cases.

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The procedure for canceling adoption in court

The procedure for canceling an adoption includes the following procedure:

1. Preparation of documents.
2. Drawing up a statement of claim.
3. Payment of state duty.
4. Going to court.
5. Obtaining a court decision.

After the court decision enters into legal force, the court independently transmits the information to the registry office. Therefore, it is not necessary for the former adoptive parent to visit the registry office. But you need to contact the Federal Migration Service office in order to reset the entry about the child in the passport based on the court decision.

Preparation of documents

Before going to court, you must prepare the following documents:

• passport;
• receipt of payment of state duty;
• child's birth certificate;
• court decision on adoption;
• passport of a child over 14 years of age;
• characteristics of a child from an educational institution;
• an extract from the passport office about the place of registration of the child.

In addition, it is necessary to prepare documents that confirm the grounds for canceling the adoption. Among them:

• court verdict – in case of cruel treatment;
• medical documents - if the adoptive parent is registered at a drug treatment center for alcohol and drug addiction;
• medical documentation for the adoptive parent or adopted child - if the adoptive parent abandons the child for health reasons.

If the initiator of the cancellation is the adoptive parent, then in order to save the family, the guardianship department will offer crisis support. But the adoptive parents have the right to refuse it.

Drawing up a statement of claim

The statement of claim must include the following information:

• the name of the district court at the place of registration of the adoptive parent and the adopted child;
• plaintiff's details;
• information about the defendant;
• third parties (guardianship department, prosecutor's office, civil registry department specialists);
• name of the claim;
• information about the adoption process;
• child details (full name, age);
• information about the circumstances that led to the cancellation of the adoption;
• reference to the law (Articles 140 – 143 of the RF IC);
• claim;
• list of attached documents;
• date and signature.

Sample claim

If the plaintiff is the adoptive parent, then the child is named as the defendant.

Payment of state duty

Payment of the state fee to the court when canceling an adoption has a number of nuances:

1. If the claim is initiated by the guardianship department in order to protect the interests of a minor, then the state fee is not paid. 300 rubles are recovered from the defendant.
2. If the initiator of the claim is a minor, then the state duty is also not paid. 300 rubles are withheld from adoptive parents.
3. If the initiator of the process is the adoptive parent, then when submitting the application he must pay 300 rubles.

Additional expenses include the cost of a lawyer - from 10,000 rubles, printing of documents, postage when sending documents to the court and other parties to the process - from 600 rubles.

Going to court

The adoptive parent can submit documents:

1. Personally. To do this, you need to visit the district court at your place of registration or at the place of registration of your child (if registered in different places). In this case, it is necessary to provide the court office with notifications from the post office that other copies of the claim have been sent to the defendant and third parties.
2. By mail. In this case, a copy of the claim and court attachments, an inventory of the contents and postal receipts must be included in the envelope for the court.
3. Through the GAS Justice portal. To do this, you need to have a confirmed personal account on the State Services website and a qualified electronic enhanced signature.

Obtaining a court decision

If the court has satisfied the plaintiff's demands, then it is necessary to obtain a decision. The document will come into force 30 days from the date of issue.

From this moment on, mutual rights and obligations between the adoptive parent and the adopted child cease. You can obtain a court decision at the court office.

Information about the cancellation of adoption is transmitted by the court to the district guardianship department and the district registry office. Specialists of the guardianship department enter data on the cancellation of adoption due to the fault of the adoptive parent into the regional data bank. After this, he will never again be able to become an adoptive parent, guardian or foster parent.

Specialists from the Civil Registry Office make changes to the child’s birth certificate. The blood parents are again entered into the mother and father columns, the child receives the same surname (if such a condition is included in the court decision). The date of birth of the child also changes (if the adoptive parents changed it).

Arbitrage practice

It is necessary to distinguish the invalidation of an adoption from the cancellation of an adoption. This is possible when a “fictitious adoption” takes place. That is, the goal of the parties or one of them is not to create a family, but to receive some benefits.

As a rule, fictitious adoption is formalized in the following cases:

• to receive benefits or maternity capital;
• to register as a family in need of improved housing conditions;
• to receive regional payments for adoptive parents;
• to claim the citizenship of an adopted child;
• to receive a deferment from the army.

Until the 80s of the last century, fictitious adoption was formalized mainly to obtain free labor. Adolescent children were accepted into the family from orphanages. This practice has now become obsolete.

In 2021, a popular reason for canceling an adoption is the re-adoption of the children of a former spouse and abandonment of the child in the event of a divorce of the adoptive parents.

State duty

According to Article 132 of the Code of Civil Procedure of the Russian Federation, a prerequisite for the court to accept the claim at all is to pay the state fee and attach the corresponding receipt, otherwise the application will be returned (Article 135 of the Code of Civil Procedure of the Russian Federation).

You can find out the details in the court itself; the amount of the fee can be calculated on the State Services website. As a rule, in such proceedings it is about 200 rubles.

Now you know in detail how to abandon an adopted child.

Legal consequences

From the moment the court decision to cancel the adoption enters into legal force, the mutual rights and obligations of the parties cease.

Consequences for the child:

• loses the right to inherit by law from the adoptive parents;
• loses the right to reside in the adoptive parents’ apartment;
• loses the right to alimony (if the cancellation of adoption is not the fault of the adoptive parents);
• information about biological parents is returned to the birth record;
• a new birth certificate is issued, where the biological mother and father are indicated as the parents;
• loses family ties with adoptive parents and their relatives;

If the adoption was canceled due to the fault of the adoptive parents, then the court collects alimony from them in favor of the child until he comes of age.

Separately, it is necessary to consider the situation with the name of the adoptive parents. During the adoption process, the child receives the surname of the new family. And during the cancellation process, he can refuse it if he is 10 years old. You cannot change a child's last name without his consent.

But, if the adoptive parent was the culprit in canceling the adoption, then he receives the obligation to pay alimony.

Deadlines

The duration of the process depends on a number of reasons:

1. If a minor was adopted from an orphanage, then you will need to undergo crisis support. It can last from 1 to 6 months.
2. In case of intra-family adoption, the issue of cancellation can be resolved together with divorce or division of property. If there is a dispute, it will take from 2 to 6 months.
3. If the cancellation of adoption occurs in a separate court proceeding, it will take 3 months (2 months for the trial + 1 month for the court decision to enter into force).

Is it possible to cancel the adoption of a wife's child during a divorce?

In a marriage, a man often adopts his wife’s child from a previous marriage. And during a divorce, he tries to cancel the adoption so that the child cannot subsequently claim his property.

However, the courts have a negative attitude towards such demands and may leave the claim without consideration.

Example. Citizen R. filed a lawsuit to cancel the adoption. He explained that during marriage he adopted his wife’s son from his first marriage. During their marriage, they had another son. The marriage is now over. He pays child support for two children and has no objection to keeping them. But he doesn’t want his wife’s son to have a claim on his property. The guardianship department and the prosecutor's office opposed meeting the requirements. The teacher at the school where the child is studying and the mother said that the child is attached to the adoptive parent. Therefore, the court refused to satisfy the demands (Decision of the Chernushinsky District Court of the Perm Territory dated November 2, 2015 in case No. 2-1123/2015).

Useful video

Watch the video on the topic:

We also recommend reading our other materials related to the topic of adoption. From them you will learn about the adoption procedure, the necessary documents and benefits for adoptive parents, the legal consequences of adoption and restrictions, as well as how adoption differs from a foster family or guardianship, whether it is possible to adopt a previously adopted child and what diseases may prevent you from becoming adopted parents.

When is cancellation not allowed?

The court does not always satisfy the requirements if the initiator of the process is the adoptive parent. If the specialists of the guardianship department, the prosecutor's office and the child are against the cancellation, then the court may leave the statement of claim without consideration.

In accordance with Art. 144 of the RF IC, cancellation of adoption in general is not allowed if the child is over 18 years old.

You can get around the ban by obtaining the consent of the adopted child, the adoptive parents and the child’s blood parents. Moreover, you can do without the consent of your parents. For example, if they died, were deprived of parental rights, or were declared incompetent by a court.

Expenses

Costs of canceling an adoption

If the plaintiff in the process is the blood parents, the guardianship department or the prosecutor's office, then the state fee is not paid. Funds are contributed exclusively if the cancellation occurs at the initiative of the substitute parents.

Lawyer's answers to private questions

When I was 9 years old, my stepfather adopted me. Now I'm 21 years old. My stepfather died 3 years ago. Can I cancel my adoption?

No. After reaching the age of majority, cancellation of adoption is possible by mutual consent of the adopted person and the adoptive parent. If the stepfather has died, then the adoption cannot be canceled.

In '94 I adopted my wife's son. We divorced in 1999. I never saw the boy again and did not maintain a relationship with him. Can I cancel my adoption now?

Only if he agrees to cancel the adoption. We need to find him and find out his opinion.

He adopted his ex-wife's son. A daughter was born in the marriage. After the divorce, the ex-wife left with the children for another city and does not allow them to meet. A year ago I filed for alimony and arrears arose. Can I cancel my adoption and not pay child support?

Even if the adoption is cancelled, the court will retain the obligation to pay alimony until the child reaches adulthood.

Under what conditions does the process of terminating mutual obligations take place?

According to the RF IC, the main condition for abolishing early proceedings are cases where the rights and interests of adopted children are significantly infringed. Each situation is considered separately and the opinion of the adopted child, his wishes and needs are taken into account.

Such conditions may include, for example:

• decrease in income level;
• when an approach to the child is not found (complicated relationships and no mutual understanding).

In practice, it is very difficult to cancel an adoption under the second point. But, if the cause of all the problems is a hidden illness of the adopted child, then the court may satisfy the claim.