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15 years ago, Ms. Feng and her husband, who lived in Dantu District, Zhenjiang City, adopted a baby girl who was less than a week old after being introduced by someone. What she could not have imagined was that 15 years later, Ms. Feng was sued by the child's biological parents, who demanded that Ms. Feng's adoption relationship be confirmed. In June this year, the Dantu Court supported the biological parents' lawsuit at first instance. Ms. Feng was dissatisfied and filed an appeal.

"Fifteen years ago, they sent their daughter away; now that she has grown up, they want her back. For the past 15 years, I have treated my daughter like my own daughter, and now she is willing to continue living with me. I hope the court of second instance will consider the actual circumstances and make a fair ruling," said Ms. Feng.

Adoptive parents sued after 15 years of adopting daughter

Fifteen years ago, Hu, the wife of Mu in Dantu District, Zhenjiang, gave birth to a baby girl. The couple were farmers and already had a son and a daughter. They were under great financial pressure and decided to give their little daughter to someone else to raise. So the couple looked for a suitable adopter through the person in charge of the village-run factory. Soon the person in charge of the factory contacted Ms. Feng and Mr. Cheng through Ms. Feng's relatives. At that time, Ms. Feng and her husband had been married for more than four years and had no children. They adopted the baby girl under the introduction of their relatives, but did not go through the adoption registration procedures with the civil affairs department.

In 2019, Ms. Feng and Mr. Cheng went to the civil affairs department to register for divorce due to a breakdown in their relationship, and agreed that their daughter Xiaoyuan would be raised by Mr. Cheng. Two years later, Ms. Feng asked the court to change Xiaoyuan's custody relationship. In the same year, the court ruled that Xiaoyuan would be raised by Ms. Feng, and Mr. Cheng would bear half of Xiaoyuan's monthly living expenses and education and medical expenses. After that, Ms. Feng and Mr. Cheng continued to have conflicts over Xiaoyuan's support and debt repayment.

Later, after making inquiries from many sources, Mr. Cheng contacted Mr. Mu and Mr. Hu, and obtained blood samples from Xiaoyuan and Mr. Mu without Xiaoyuan's knowledge. He conducted a paternity test, and the test results showed that Mr. Mu and Mr. Hu were Xiaoyuan's biological parents.

After learning the results of the paternity test, Mr. Mu and Ms. Hu sued Mr. Cheng and Ms. Feng in court, requesting that their adoption relationship be declared invalid.

The court of first instance ruled that the adoption relationship was not established, and the adoptive mother appealed

The Dantu Court of Zhenjiang City held that civil disputes arising from legal facts before the implementation of the Civil Code of the People's Republic of China shall be subject to the laws and judicial interpretations at that time. The adoption of Xiaoyuan in this case occurred in 2009, and the Adoption Law of the People's Republic of China should be applied. According to this law, Ms. Feng was 26 years old when Xiaoyuan was adopted, which did not meet the adoption requirement of being 30 years old, and she had not registered with the civil affairs department of the county government or above, which did not meet the conditions for the establishment of an adoption relationship. Therefore, the adoption of Xiaoyuan by Ms. Feng and Mr. Cheng has no legal effect, and the adoption relationship between the two parties is not established.

Regarding the actual changes or handover of Xiaoyuan's guardianship and support in the future, the plaintiff and the defendant should conduct full consultation and handle the matter properly to avoid causing harm to Xiaoyuan again.

The first instance judgment ruled that the adoption relationship was not established

After the first-instance judgment, Ms. Feng was dissatisfied and filed an appeal, requesting the second-instance court to revoke the first-instance judgment and change the judgment to dismiss the lawsuit filed by Mr. and Mrs. Mu.

She believes that she adopted Xiaoyuan less than a week after she was born. Xiaoyuan is now 15 years old. The two have lived together for a long time. She has taken good care of Xiaoyuan and put in a lot of effort. They are not biological children, but they are like biological children. They have a deep mother-daughter relationship and have formed a de facto adoption relationship. In addition, she is Xiaoyuan's legal guardian. Mr. Cheng took blood samples without her and Xiaoyuan's consent, which is a serious violation of the law. The so-called paternity test conclusion is illegal evidence and the court should not accept it.

During the first instance litigation, Xiaoyuan clearly expressed her willingness to continue living with Ms. Feng and not with Mr. and Mrs. Mu. However, the court of first instance mechanically handled the case without seeking Xiaoyuan's opinion. The court should examine the adoption relationship from the perspective of protecting the interests of the adoptee and respecting the adoptee's wishes, maintain the existing stable identity relationship formed through long-term living, and protect the rights and interests of minors to the greatest extent.

Ms. Feng (right) and her adopted daughter, they look forward to a fair verdict in the second instance

Nantong has had similar cases but with different verdicts. Experts and judges explain the law

Modern Express reporter learned that among the top ten civil and administrative cases of the People's Court in 2017 released by the Supreme People's Court, the "Case of biological parents asking adoptive parents for their child" has attracted much attention. The case is as follows: 19 years ago, Mr. and Mrs. Ma sent their two-month-old baby girl to Mr. and Mrs. Cui for upbringing. The two parties did not sign any written agreement, nor did they go through the adoption procedures. After the girl grew up and went to high school, Mr. and Mrs. Ma took the girl to court, requesting confirmation of their parent-child relationship and that the adoption relationship between Mr. and Mrs. Cui was not established. The two-level courts in Nantong City ruled to dismiss the plaintiff's claim.

Yang Lixin, a professor at the Law School of Renmin University of China, commented on the case and said that the case was called a "warm judgment". The key point of this judgment is that it is not limited to the mandatory provisions of the current law, but starts from the actual situation and confirms the legal effect of the consequences of the legal behavior of relatives in fact adoption.

The provisions of my country's Adoption Law that adopters must meet the conditions at the same time and that "adoption must be registered with the civil affairs department of the people's government at or above the county level" are legal norms formulated under the guidance of the strict family planning policy. Not only are the adoption conditions harsh, but they also do not recognize de facto adoption relationships. Such regulations do not take into account the complexity of real life and use tough laws to regulate social life. The judgment in this case is a valuable judgment that respects human nature, respects family affection, and respects kinship relationships based on factual legal acts. It not only maintains the de facto parent-child relationship, but also provides judges at all levels of courts with a method to correctly apply the law.

It is understood that the Shanghai Railway Transport Court once heard a dispute caused by adoption registration, which was called the first administrative case of adoption registration in Shanghai after the implementation of the Civil Code of the People's Republic of China. Mr. and Mrs. Xu did not have children after marriage. In 2004, Xu found an abandoned baby. After calling the police, he failed to find the baby's biological parents, so he adopted the baby and named him Xu Xiao, but did not go through the adoption procedures. In 2021, Mr. and Mrs. Xu applied to the Civil Affairs Bureau of a certain district to adopt Xu Xiao. After the district civil affairs bureau accepted the application, it was assessed that Xu had problems such as bad credit card debts and records of dishonest debtors in terms of personal credit. According to the relevant provisions of the Shanghai Adoption Assessment Measures, it was determined that the two people were unqualified for adoption and issued a notice of non-application registration. Mr. and Mrs. Xu were dissatisfied and sued the Shanghai Railway Court, requesting a judgment to revoke the notice and issue an adoption registration certificate.

The picture shows the adoption relationship (the picture and text are unrelated)

The collegial panel of the Shanghai Railway Court fully communicated with the municipal and district civil affairs bureaus, discussed the application of relevant legal norms and agreed that the case was special. Because the adoption involved took place in 2004, the applicant and the adoptee had formed a de facto foster relationship and had a relatively stable emotional foundation. In the application of the law, the actual situation of the case should be considered to effectively protect the legitimate rights and interests of minors. Immediately, the Shanghai Railway Court sent a letter of suggestion for coordination and resolution of contradictions to the district civil affairs bureau. Under the guidance of the superior, the district civil affairs bureau finally handled the adoption registration for the two plaintiffs, and the two plaintiffs withdrew the lawsuit. The judge believed that in this case, the plaintiff and the adoptee were regarded as father and son, mother and son, and lived together for more than ten years. The two plaintiffs fulfilled their obligations to support and educate the adoptee and had a deep affection for each other. After comprehensively considering the applicant's ability to adopt, the consequences of the adoptee's lack of legal identity, and the application of the law, the collegial panel promptly sent a letter of suggestion for coordination and resolution of contradictions to the administrative agency, and the administrative dispute was successfully resolved.

(The parties in this article are pseudonyms)

Modern Express/Modern+ reporter Gu Yuansen