Cancellation of adoption: grounds, procedure, consequences

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.

Is it possible to abandon an adopted child after a divorce?

Life situations are different, so lawyers are often asked about whether it is possible to cancel the adoption of a child in a divorce. According to the law of the Russian Federation, adoption is carried out only on a voluntary basis. The procedure for refusing adoption will be carried out in court.

Common reasons for a child returning to an orphanage include:

Lack of mutual understanding with the child. Establishing contact with an adopted child alone can be more difficult than in a full-fledged family.
The initiative for adoption belonged to the other spouse. This happens in couples where one of the spouses suffers from infertility. After a divorce, the issue of adoption may lose its relevance.
The desire to start a new, unencumbered life. An adopted child can become an obstacle to starting a new relationship.

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:

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.
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.
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.
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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Adoption refusal procedure

The Family Code of the Russian Federation establishes a number of requirements for the procedure for canceling adoption . According to the text of Article 140, such cases should be considered:

Only by way of legal proceedings;
With the direct participation of guardianship and trusteeship authorities (as they relate to the upbringing of children);
With the participation of prosecutors at the trial stage;
With mandatory provision of adequate protection of the rights and interests of the child;
With the provision to the court of a conclusion on an examination of the living conditions of the adopted child, issued by guardianship officials after visiting the adoptive family;
With the provision of the prosecutor's opinion on the merits of the case, made during the judicial debate.

After considering all the circumstances of the case, the court makes a decision. If the decision is positive, an extract from it is sent to the civil registry office that registered the fact of adoption within three days.

The procedure for canceling adoption in court

The procedure for canceling an adoption includes the following procedure:

Preparation of documents.
Drawing up a statement of claim.
Payment of state duty.
Going to court.
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:

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.
If the initiator of the claim is a minor, then the state duty is also not paid. 300 rubles are withheld from adoptive parents.
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:

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.
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.
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.

Expenses

The costs of abandoning adoption through its cancellation are minimal:

if both spouses file a claim, they will have to pay 300 rubles of state duty for two;
if a claim is filed by one adoptive parent against the second, he is exempt from the fee, since the claim is filed in the interests of a minor.

There may also be additional costs for providing legal assistance in drawing up a claim and representing interests in court. However, their sizes are individual and depend on the fees of an individual lawyer.

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 the child retains the rights to	The adoptive parent loses the following rights
property that was registered in his name; personal belongings; benefits and pensions that he had before adoption; bank accounts opened in his name.	parental rights in relation to the child; to inherit by law in the event of the death of a child; use and dispose of the adopted person’s property; for benefits and allowances for families with children; be a guardian, adoptive parent, foster parent.

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

Contents of the statement of claim

To consider a case on cancellation of adoption, a person entitled to do so must file a claim with the branch of the district court located at the place of registration of the defendant. The application must contain the following mandatory requirements:

circumstances of the adoption (data of the adoptive parent and adopted child, when and on what basis the court decision was made);
reasons for canceling the adoption;
a petition to terminate the adoption in relation to the specified child;
request to change data in documents (if desired by the plaintiff and defendant);
list of attached documents.

The following documents are attached to the application:

copies of documents confirming the identity of the adoptive parents;
copies of personal documents of the adopted child;
copies of documents confirming the fact of adoption;
evidence of existing grounds for cancellation (conclusion of the guardianship authorities on the child’s living conditions, results of a medical and psychological examination, conclusion of a psychologist, etc.)

Sample application form

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).

Deadlines

Consideration of a claim for cancellation of adoption in relation to one spouse or in a mutual claim for refusal of adoption takes place within the standard time limits according to the Code of Civil Procedure of the Russian Federation:

2 months – to consider the case;
1 month – for the decision to come into force.

It is possible to increase the time period for hearing the case if any examination is required during the consideration of the claim.

The proceedings in the case are suspended in this case for the duration of the proceedings and the total procedural period of 2 months is not considered.

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.

Invalidation

The adoption procedure may be declared illegal and canceled in several cases:

If the court proves that the documents submitted for adoption were fake.
If consent to the procedure has not been obtained from the persons responsible for the child - blood parents, guardianship and trusteeship authorities.
If custody of the child was given to people deprived of such rights.
If the adoptive parents are declared incompetent.

Expert opinion

Vasiliev Oleg Borisovich

Many years of experience in various areas of law

8 (800) 350-29-87Moscow

An adoption can also be declared invalid in court upon application.

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.

When is it impossible?

It is impossible to cancel an adoption in two cases:

There are no sufficient grounds for cancellation. The court may make such a decision after considering all the details of the case.
The adopted child has reached the age of majority. You can refuse adoption until the child reaches 18 years of age. After this, the relationship established by law remains until the end of life.

There is an exception. If an adult agrees to cancel the adoption, and the consent of the adoptive parents has also been obtained, then in this case the court may make a positive decision on the termination of intra-family relations.

Cancellation of adoption by foreigners

Please note that not only Russians, but also citizens of other states can act as adoptive parents. The adoption procedure is somewhat different for them, so the procedure for canceling it will also be different.

Let's consider the most significant points.

Regulatory framework

According to Art. 165 of the RF IC, the cancellation of adoption initiated by foreigners or in relation to them must be carried out within the framework of the legislation of the country of which the adoptive parent is a citizen. If a person is stateless, then the legislation of the country in which he permanently resides is subject to application.

Thus, it is impossible to determine a specific list of legal acts that are subject to application when canceling adoption in relation to foreigners, since it is determined individually in each case, based on the citizenship of the adoptive parent or his place of residence.

Cancellation procedure

In fact, the procedure for canceling adoption for foreign adoptive parents is not much different from the procedure provided for Russians. However, there are still fundamental differences. Thus, according to the logic of the legislator, the cancellation of adoption is carried out in court.

Based on the norms of Art. 269 of the Code of Civil Procedure of the Russian Federation, the claim for cancellation is filed with the supreme court of the subject of the federation (regional, territorial, court of a federal city), which initially considered the adoption case. In all other respects, the procedure for canceling an adoption is no different from the procedure provided for Russians: the court considers the case with the participation of the prosecutor and guardianship authorities, makes an appropriate decision taking into account the legislation of the country of origin of the adoptive parent, and after entering into legal force, sends it to the registry office.

List of documents

When canceling international adoption, domestic legislation does not provide for any specific requirements for documents, which is why the list of documents for Russians indicated above should be applied. Meanwhile, a specific list of required documents may be provided for by the legislation of the adoptive parent’s country of origin. In our opinion, in addition to the above documents, the following may also be required to cancel an international adoption:

a conclusion on the living conditions of the minor from the regulatory authority of the country in which the child lived with the adoptive parents;
documents confirming consular registration;
documents confirming the child’s acquisition of citizenship of another country;
documents confirming the validity of the request to annul the adoption.

Examples from judicial practice

Example #1

Childless family gr. The Busygins, living in the town of Kamyshevakha, adopted a boy Igor, age 11, who was brought up in an orphanage. The relationship was normal at first, but as the minor grew up, conflicts constantly began to arise between father Busygin N. and the child, which grew into hatred.

Busygin N. humiliated the teenager and violated his dignity in every possible way. The mother, Busygina O., took the side of her husband and did not try to protect her adopted son. The child was not given the necessary things, he was forced to work in the greenhouse from 5 o’clock in the morning, and the punishment for disobedience was imprisonment in the basement.

The teenager, as soon as he turned 14 years old, turned to the child welfare service for help. Inspector I.F. Krylova repeatedly visited the family and pointed out the impossibility of such treatment of the teenager.

During the trial, initiated by the adopted I.N. Busygin himself, with the participation of I.F. Krylova and witness S.V. Kurilina, the existence of hostile relations and the failure of the adoptive parents to fulfill their duties were established. By a court decision, the adoption was canceled, and the minor himself returned to the orphanage.

Filing a claim

To cancel an adoption, you must file a lawsuit in the same district court that made the decision to appoint the adoptive parents.

In the header of the claim, the name of the court where the case will be heard is first indicated. Next comes information about the plaintiff and defendant: full name, address, telephone.

The plaintiff in the case of cancellation of adoption is the initiator of the procedure. The defendant is usually the adoptive parent. However, the plaintiff is the adoptive parent, the defendant will be the child. It is clear that a minor cannot defend his interests in court on his own. Therefore, his legal representative will be an employee of the guardianship authorities, who will act on behalf of the child at the trial.

In addition, you must indicate the name and address of the guardianship authorities and the prosecutor's office, whose representatives will be present at the meeting. They are determined by the jurisdiction of the court.

The content of the application states:

when the minor was adopted, which court made this decision and the case number;
what name was given to the child after adoption;
for what reasons does the plaintiff want to cancel the adoption and why this cannot be avoided.

You will also need to list the documents attached to the claim, date it and certify the application with a signature. If the plaintiff plans to resort to testimony, he must ask the court to summon these persons to the hearing.

The application will need to be accompanied by:

a copy of the plaintiff's passport;
a copy of the child's birth certificate;
a copy of the court decision on adoption;
a certificate from the passport office about the composition of the family, confirming the joint residence of the adoptive parents and the child;
receipt of payment of state duty;
other documents necessary for consideration of the case: an inspection report of the child’s living conditions, medical certificates, income certificates, characteristics of children (adoptive parents), etc.

You can submit documents in person or by sending them by registered mail.

Consideration of the case

When deciding to cancel an adoption, the court is guided primarily by the interests of the minor and carefully studies the arguments of the parties. Because of this, the process may be delayed.

Representatives of the guardianship authorities and the prosecutor's office must be present at the trial. This ensures that the child's best interests are served.

Important! After the decision is made, the parties have a month to appeal it to a higher authority. If this is not done, the document will come into force after 30 days. The court is obliged to notify the civil registry office at the place of registration of the child about this within 3 days, sending there an extract of the decision.