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INTERNATIONAL ASSOCIATION OF JUDGES 2nd Study Commission Crans-Montana session - September 1991 ITALIAN DELEGATION'S REPORT ON THE PROCEDURE OF ADOPTION * * * INTRODUCTION Under Act 184, 4 May 1983 it is necessary to make a distinction, between two categories of adoption: adoption of a person who has attained the age of majority (which in Italy is 18 years old) and adoption of a minor (referred to by statutes only as adoption). The main objective of the adoption of a person over the age of 18 is to allow a person with no natural descendants to have an heir at law, even though adoption of this kind is permitted according to a "Corte Costituzionale" ruling (n. 557, 19 May 1988) also in case the adopter has natural descendants, provided they are over the age of 18 and consenting. Adoption of persons who have attained majority is provided for by Italian Civil Code, articles 291-314.
On the other hand, adoption of minors has been especially conceived to provide a family to an abandoned or homeless child. It is regulated by Act 184/83, articles 6-57.
The courts of competent jurisdiction in case of the adoption of a person over 18 are ordinary courts, whereas in case of the adoption of children, the court of competent jurisdiction is the Minors Court. It is worthwhile to point out that the adoption of a person over 18 is allowed even to a single adoptive parent whereas the adoption of children is usually permitted only to a married couple.
Judicial procedure regarding the adoption of a person over 18 is generally quite simple. Conversely, judicial procedure regarding adoption of a child is quite complex. This procedure consists of two completely distinct phases: declaration of the state of adoptability and declaration of adoption. The declaration of the state of adoptability is pronounced by the Minors Court of the district in which the child is. It is necessary that the child be in an irreversible and definitive condition of lack of moral and material support. In this phase of the procedure the natural parents of the child (if there is any) may oppose to the adoption with the right to be heard by the judge. Once the declaration of adoptability is pronounced the child is taken away from its natural family and is placed with the couple who has applied for the adoption of the child.
The Minors Court must ensure that the couple complies with all legal requirements regarding age and capacity to support and raise the child. A year from the date of the decision regarding placement of the child, the Minors Court ensures again all requirements are met; if the judge thinks it is convenient for the child it pronounces the adoption.

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1. What are the conditions precedent to a valid legal adoption under your legal system? In particular, must any of the following conditions be met?
a) the attainment by the adoptive parent or parents of the age of majority?
Yes, both for the adoption of a person over 18 and for the adoption of a child.

b) the attainment by the adoptive parent or parents of a specified age?
As far as the adoption of a person over 18 is concerned it is necessary that the adopter be at least 36 years old (i.e. 18 years older than the person to be adopted: Civil Code, article 291).

As to the adoption of a child, instead, it is necessary that the adopters be validly married (not separated) for at least 3 years. The adopters must be 18 years older than the child to be adopted (Act 184/83, article 6). The age required for getting validly married in Italy is 18 years old (except in rare cases in which a person is older than 16 with a judicial authorization). In other words it is necessary that adopters be (usually) at least 21 years old. In any case adopters must not be 40 years older than the person to be adopted.

c) the adoptive parents being validly married to each other?
As to the adoption of a person over 18 it is obviously necessary, that the adopted have attained the age of majority. Conversely there are no age limitations regarding the adopted (but in any case the adopter must be at least 18 years older than the adopted).

As for the adoption of a child it is necessary that the adopted be younger than 18 years old.

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2. What are the formal requirements that must be met under your legal system before a valid adoption can be effected? In particular, must there be:
a) a contract in writing between the parties?
There is no contract for adoption under Italian law.

b) an order of a court of competent jurisdiction?
A judicial decision is always necessary, both for the adoption of a person over the age of 18 and for the adoption of children.

c) an order of a public agency other than a court?
There is no decision by public agencies. It must be added that under Act 184/83, articles 2-4, the mayor of the city in which the child is may order his placement in a family. This measure is aimed at children who temporarily lack an appropriate family environment. It is a temporary decision unlike adoption, which does not concern parental rights.

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3. What are the relevant legal provisions governing the various matters set out below when a court or other public agency is asked to sanction an adoption?
a) the grounds for refusing sanction to an adoption. Must they be stated?
Sanction to the adoption of a person over 18 may be refused by the court on the following grounds:
- the adopter is not 18 years older than the person to be adopted   (see n. 1);
- the adopted is younger than 18 years old;
- the adopted is an illegitimate child of the adopter (Civil      Code, article 293);
- the adopted has already been adopted by another person (except in the case the two adopters are husband and wife: Civil Code, article 294);
- the adopter is the guardian of the adopted and has not yet accounted for his function to the judge of guardianships   (Civil Code, article 295);
- there is no agreement between adopter and adopted as to   adoption (Civil Code, article 311);
- either the parents or the spouse does not consent to the   adoption (see 3b);
- the adoption is not according to the interests of the adopted (Civil Code, article 312).

Sanction to the adoption of a child may be refused by the court on the following grounds:
- adopters are not validly married (for instance, it is a cohabiting couple);
- adopters are either married for less than three years or no longer validly married (Act 184/83, article 6);
- the Minors Court states that the adopters cannot maintain or raise appropriately the child whose adoption they have applied for (Act 184/83, article 6);
- adopters do not comply with age requirements (see 1b);
- the child has not been declared to be in condition to be adopted (see introduction).

b) the persons whose consent must be given to the adoption?
Sanction to the adoption of a person over the age of 18 by the court requires the agreement of the following persons:
- the adopter and the adopted (Civil Code, article 311);
- the spouse of the adopter as well as the parents and the spouse of the adopted (Civil Code, article 297).

Sanction to the adoption of a person under 18 by the court requires the agreement of the following persons:
- the child, provided he is over the age of 14. If he is over the age of 12 he is entitled to be heard by the Minors Court. If he has not attained the age of 12 yet he is not entitled to be heard by the court unless it is convenient for the child (Act 184/83, article 7).

c) the persons who are entitled to be heard before the adoption is sanctioned?
See 3b.

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4. Does your legal system permit the adopted child to ascertain the identity of its natural parent?
Adopted persons over the age of 18 have the right to ascertain the identity of their natural parent, with no consequences on the adoption.

Adopted persons under the age of 18 may not obtain their birth records unless they have a judicial authorization.

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5. What are the consequences of adoption in:
a) family law generally, including divorce and custody and guardianship of children?
Adopted persons over 18 maintain all their legal rights and duties with their natural family. There are neither problems arising from divorce (both of the adopter and the adopted) nor from custody since the adopted has achieved the age of majority.

Adoption of persons under 18 establishes the legal relationship of parent and legitimate child between the adopter and the adopted child. Thus, the rules regarding custody of legitimate children are applicable (Civil Code, articles 316 f.).

b) the law of inheritance and succession to estates of deceased persons?
Adopted persons over 18 have the same rights regarding the law of inheritance and succession to the estates of their adopters as a legitimate child. On the other hand, if the adopted dies intestate the adopters have no right in the succession to the estate of the adopted person.

Adoption of persons under 18 establishes the same rights regarding the law of inheritance and succession of the estate between the adopters and their legitimate children.

c) right to the family name?
In case of adoption of persons over 18 the family name of the adopter will precede the original family name of the adopted child.

In case the adopters are husband and wife the adopted person will only acquire the family name of the adoptive father.

Should the adopted be an illegitimate child he will lose his family name (Civil Code, article 299).

Adopted persons under 18 lose the right to their original family name and acquire the family name of the adoptive father.

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6. In what circumstances may:
a) an order by a court or other public agency sanctioning an adoption be revoked?
It may be revoked on account of a serious offense (attempt at homicide or any criminal offense for which there is a condemnation for more than 3 years of imprisonment) committed by either the adopter or the adopted against the other, provided an application to revoke is made by the offended.

Adoption of a person under 18 may not be revoked (unless it is one of the "special adoptions": Act 184/83, article 44 f.)

b) a contract in writing for adoption be set aside?
There is no contract for adoption under Italian law.

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7. To what extent does your legal system extend recognition to foreign adoptions?
In particular, if such recognition exists, is it based on:
a) reciprocity, i.e. the existence of the same jurisdictional conditions and requirements in the foreign State?
"International adoption" of persons under the age of 18, under Act 184/83, articles 29-43, is allowed to couples who comply with the requirements for the adoption of an Italian child. Furthermore it is necessary that the child be adopted in accordance with the law of his own country and the adoption be not contrary to the Italian public policy.

b) the law of the domicile or habitual residence of either or both of the following:
- the adoptive parents?
- the adopted child?
See 7a.

c) the law of the nationality of either or both of:
- the adoptive parents?
- the adopted child?
See 7a. Adopted children who are not Italian nationals will acquire such nationality as their adoptive parents possess.

Dr. Giacomo Oberto
Court of Turin