Título II

The National Adoption Council -CNA- is created as an autonomous entity, governed by public law, with legal personality, its own patrimony and full capacity to acquire rights and contract obligations. The National Adoption Council shall be the Central Authority in accordance with the Hague Convention.

The seat of the National Adoption Council is in the capital of the Republic; however, for the performance of its functions, it may establish offices in the departments where necessary and shall be the institution responsible for ensuring faithful compliance with the administrative procedures for all adoption files.

The Central Authority shall be the National Adoption Council, which for the fulfillment of its functions shall have at least the following units:

a.Board of Directors, composed as set forth in Article 19 of this law;

b.General Directorate;

c.Multidisciplinary Team;

d.Registry;

e.Others established in the regulations of this law.

The Board of Directors of the National Adoption Council shall be composed as follows:

a.One member appointed by the Plenary of the Supreme Court of Justice;

b.One member appointed by the Ministry of Foreign Affairs;

c.One member from the Secretariat of Social Welfare of the Presidency of the Republic.

Each representative of the indicated institutions shall serve in office for a period of four years. In addition to the principal representative, each of the aforementioned institutions shall designate, together with the latter, an alternate who shall act in his stead in cases of absence. The appointments established in this article may be held for a single term only.

The fundamental functions of the Board of Directors consist of the development of policies, procedures, standards and directive guidelines for the adoption procedure.

The Director General is the administrative head of the institution, responsible for its proper functioning.

The Director General of the National Adoption Council shall be appointed by the Board of Directors, from among the candidates in the public merit-based competition, shall hold office for a period of three years, and may hold such office for only one period.

The National Adoption Council is responsible for the recruitment of prospective adoptive parents in Guatemala. Said Central Authority shall conduct the home studies of prospective adoptive parents and maintain a list of prospective parents who are eligible and suitable to adopt.

In addition to those contained in the Hague Convention, the following are functions of the Central Authority:

a.To ensure the protection of boys, girls and adolescents in adoption proceedings;

b.To promote national adoption, with priority for institutionalized children;

c.To assign to each child in adoption proceedings the appropriate family in accordance with his or her best interests;

d.To gather, preserve and exchange information relating to the situation of the child and of the prospective parents to the extent necessary to carry out the adoption proceedings;

e.To gather and preserve information on the origins of the child, principally his or her identity and that of his or her parents, his or her medical history and that of his or her parents, guaranteeing access to said information;

f.To safeguard children in a state of adoptability who enter State protection and shelter homes or the State temporary family program, who, with prior judicial authorization at the request of the Central Authority, may be admitted to private shelter entities that are duly registered and authorized in accordance with this law;

g.To maintain an updated register of children whose right to family has been violated and of the institution where they are sheltered;

h.To prepare a file for each child in a state of adoptability sheltered in its institutions or to require its equivalent in private institutions, in accordance with Article 16 of the Hague Convention, which shall record:

1.His or her personal data and circumstances, including photographs of the child;

2.His or her full identification, by means of the certification of the birth certificate; and the document containing his or her plantar and palmar impression; the fingerprint impressions of the mother and of the father, where applicable, as well as other scientific means;

3.His or her medical history.

i.To issue the certificate of suitability of the applicants within a time limit of no more than thirty days;

j.To confirm that candidates for intercountry adoption are suitable in accordance with the legislation of Guatemala;

k.To receive the consent of the biological parents, following counseling in accordance with this law;

l.To supervise the socialization period and issue the certificate of empathy;

m.To receive adoption applications, as well as to create and maintain the respective file in custody until such time as it is sent to the family judge;

n.To provide follow-up to children placed in adoption; in intercountry adoptions a follow-up report shall be required from the corresponding Central Authority;

o.To authorize, supervise and monitor on a periodic basis, and where applicable to impose sanctions on, private entities, shelter homes and substitute homes dedicated to the care of children;

p.To take appropriate and pertinent measures to prevent undue material benefits in connection with adoption;

q.To maintain constant communication and cooperate with Central Authorities or their equivalents, promoting collaboration to ensure the protection of children, principally in the exchange of information on legislation on adoptions, statistics, forms and operation of the Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption;

r.To establish the number of accredited foreign agencies that will be permitted to operate in the country and to authorize those that have permission to act. Accredited foreign agencies must demonstrate that they are duly authorized in their country of origin;

s.To require from such institutions as it deems appropriate the information necessary for fulfillment of its powers and functions;

t.To promote cooperation among competent authorities, in order to provide children with the necessary protection;

u.To verify that at each stage of the adoption proceedings the provisions of this law are observed;

v.To issue the certificate that the intercountry adoption was processed in accordance with the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption;

w.Any other function it deems pertinent for the effective fulfillment of its powers.

The Multidisciplinary Team is the unit of the Central Authority that advises the actions in the adoption proceedings so that they are carried out in accordance with the law, with transparency, ethics and internationally accepted standards; and shall for such purpose provide advice to the biological parents, the adoptive parents and the relatives of the child, as well as to the institutions or authorities whose consent is necessary for the adoption proceedings.

The Multidisciplinary Team shall have a coordinator who shall exercise technical-administrative leadership, appointed by the National Adoption Council; and a team of professional and technical specialists in different disciplines, with emphasis on childhood and adolescence.

The Multidisciplinary Team shall have such technical and administrative staff as deemed necessary.

To be a member of the Multidisciplinary Team, the following requirements must be met:

a.Be Guatemalan by origin;

b.Be of recognized honorability;

c.Be a university professional, an active member of the respective professional association;

d.Be in the enjoyment of his or her civil rights;

e.Demonstrate experience in the field of childhood and adolescence, principally in the field of adoptions.

The functions of the Multidisciplinary Team are:

a.To advise the families of both the adopter and the adoptee;

b.To study adoption cases and give its opinion thereon as required by the Central Authority;

c.To carry out the expert examinations and investigations required of it by the Central Authority and to suggest others it considers necessary;

d.To issue an opinion within the process of selecting the suitable family for the child to be adopted;

e.To issue an opinion regarding the certificates of suitability of the adopters and of empathy between the adoptee and the adopter;

f.To issue a professional opinion to guide the final decision of the Central Authority;

g.To supervise, under coordination with the Secretariat of Social Welfare of the Presidency of the Republic, the public and private entities dedicated to the shelter of children;

h.Other functions as may be required in accordance with its technical work.

The following may not be members of the Multidisciplinary Team:

a.Those who have been convicted in a trial of accounts;

b.Those who have been convicted of any crime committed against any child or against the public administration;

c.Those who have been sanctioned by the professional association to which they belong, if they have not been rehabilitated;

d.Those who have a relationship, connection, or represent interests of private persons or entities engaged in the care of children or in any other relationship with children eligible for adoption.

The Central Authority shall maintain the register of the following information:

a.National adoptions;

b.International adoptions;

c.Adoption files;

d.Children for whom adoption is admissible;

e.Foreign bodies accredited and certified by the Central Authority.

Every body accredited in a receiving country of the Hague Convention shall comply with the requirements set forth by this law and its regulation, to be authorized and to act in adoption proceedings in Guatemala;

f.Suitable persons or families wishing to adopt;

g.Scientific and photographic evidence and palmar, plantar and fingerprint impressions of the children for whom adoption is admissible;

h.Private entities, shelter homes and temporary homes dedicated to the care of children;

i.Adoptions of persons of legal age.

Private entities dedicated to the shelter of children shall be authorized and registered by the Central Authority.

The Central Authority and the competent Trial Courts, in accordance with the Law for the Comprehensive Protection of Children and Adolescents, this law and its regulations shall ensure that the rights of children who are under protection measures are respected. Otherwise, the authorities shall file the corresponding complaints and order the pertinent protection measures.

Private entities that provide care for children, in addition to complying with the legal requirements, shall register with the Central Authority; indicating the address of the place where the children subject to their care are located, as well as a detailed report on the infrastructure of the centers, their installed capacity, their type of population served, specific care programs, attaching a legalized photocopy of the following documents:

a.Document of incorporation duly registered;

b.Appointment of its legal representative;

c.Payroll of employees and positions held;

d.Favorable operating opinions issued by the Ministry of Public Health and Social Assistance and by the Ministry of Education;

e.Others contained in the regulation of the present law.

Private entities dedicated to the care of children are obligated to watch over and ensure their integral development; they shall guarantee them at a minimum:

a.Their due attention, nourishment, education and care;

b.Their physical, mental and social health;

c.The maintenance of adequate hygienic conditions of the facilities established in the regulation of this law;

d.To periodically remit to the Central Authority the reports and data of the children in their charge;

e.Others contained in the regulation of this law.

In accordance with the Hague Convention, accredited adoption bodies in the Contracting States of said Convention, referred to in the text of this law as accredited foreign bodies, shall be authorized by the Central Authority of the accrediting country and by the Central Authority of Guatemala, to perform functions in accordance with the provisions of the Hague Convention, as agreed by the Central Authority of Guatemala.

The request for authorization by an accredited foreign body to be able to work in Guatemala must be made by the Central Authority of the State of accreditation to the Central Authority of Guatemala.

When an accredited foreign body is authorized to act in accordance with this article, the Central Authority of Guatemala must enter it in its register. No accredited foreign body may provide its services in a case of international adoption in Guatemala if it is not registered with the Central Authority of Guatemala.

Registered accredited foreign bodies must comply with all regulations approved by the Central Authority of Guatemala.

An accredited foreign body must provide evidence that it is currently accredited in a Receiving State of the Hague Convention, and that it is authorized to operate in Guatemala.

The Central Authority of Guatemala must report any complaint regarding the actions of an accredited foreign body to the Central Authority of the country of accreditation.

The Central Authority of Guatemala may act immediately to withdraw the authorization of an accredited foreign body, in accordance with the provisions of the Hague Convention.

The regulations of this law shall establish the requirements for authorization of the operation of accredited foreign bodies in Guatemala, their control and procedure to ensure that they do not pursue profit-making purposes, and that they are directed and administered by qualified persons.

When an authority finds that homes, accredited foreign bodies and any other private institution dedicated to the care of children have not respected, or that there is a risk that any of the provisions of this law, as well as of the Hague Convention, may not be respected, it shall inform the Central Authority and the Trial Courts for Children and Adolescents, so that the respective sanctions are applied in accordance with the regulation of this law; where the facts to be reported may constitute a crime, the corresponding complaint shall be filed before the Public Prosecutor's Office.

If the institution is public, the Central Authority and the tribunals of justice shall take measures so that the public officials and public servants working therein comply with this law, its regulation and the Law on the Comprehensive Protection of Children and Adolescents.

Once the procedure for the protection of childhood and adolescence has concluded and the inquiries indicated in the Law for the Comprehensive Protection of Childhood and Adolescence have been carried out, the judge, as applicable, may issue a judgment declaring the violation of a child's right to a family and shall order restitution of said right through adoption. The childhood and adolescence judge in the same decision shall declare the adoptability of the child and shall order the Central Authority to initiate the adoption proceedings.

For the declaration of adoptability of the child to proceed, it must be established that:

a.The child needs an adoptive family because the child cannot be cared for or reintegrated into his or her biological family;

b.The child is emotionally and medically capable of benefiting from adoption;

c.The child is legally adoptable;

d.The persons, including the child taking into account his or her age and degree of maturity, institutions and authorities involved, whose consent is required for the adoption:

d.1 Have been suitably counseled and duly informed of the consequences of their consent, particularly in relation to the maintenance or severance, by virtue of adoption, of the legal ties between the child and his or her family of origin;

d.2 Have given their consent freely, in the legally prescribed form, and that such consent has been given or evidenced in writing;

d.3 The consents have not been obtained by means of payment or compensation of any kind and that such consents have not been revoked;

d.4 The mother's consent has been given only after the birth of the child.

The biological parents who voluntarily express their desire to place a child for adoption shall appear before the Central Authority to receive the corresponding orientation process. If they ratify their desire to place him for adoption, the Central Authority shall immediately present the child before the childhood and adolescence judge, so that the latter initiates the childhood and adolescence protection proceedings and declares adoptability.

In these cases, in addition to ordering the applicable investigation pursuant to the Comprehensive Protection of Children and Adolescents Law, the judge shall order the Central Authority to perform the following actions:

a.Carry out the orientation process for the biological parents;

b.Collect suitable and necessary scientific evidence to establish parentage, including deoxyribonucleic acid -DNA- testing;

c.Take the fingerprints of the biological parents and the palm and sole prints of the child;

d.Assess such matters as the Multidisciplinary Team deems appropriate.

The results of these actions shall be presented by the coordinator and/or Multidisciplinary Team at the hearing set for that purpose by the judge.

The process of orientation to adoption consists of a process of professional and individual information and counseling, directed by the Multidisciplinary Team with the purpose of informing about the principles, rights and consequences of the adoption, this process shall be recorded in the case file.

The regulations of this law shall establish the procedure to be applied.

The biological parents of the child who voluntarily wish to give him or her for adoption, only after their son or daughter has reached six weeks of age, may appear before the Central Authority to express their will to give him or her for adoption and to submit to the proceedings set forth in this law and its regulation.

If, after having undergone the orientation proceedings, the parents persist in their intention to give their son or daughter for adoption, they shall appear before the Central Authority to continue with the procedure.

In the case of national adoptions, applicants shall file their application before the Central Authority, which shall forward it to the Central Authority, for purposes of conducting the corresponding studies and, if appropriate, issuing the declaration of suitability. In the case of international adoptions, persons interested in adopting a child shall initiate their adoption proceedings before the Central Authority of their country of residence, which shall forward the application with the corresponding certificates to the Central Authority of Guatemala.

Persons covered under subparagraphs e) and f) of Article 12 of this law may go directly before a notary, who with a favorable opinion from the Central Authority, may formalize the adoption by public deed.

The requirements that national applicants must submit to initiate the adoption proceedings are as follows:

a.Application containing the full name of the applicants, age, marital status, nationality, domicile, identification document and place to receive notifications;

b.Certification of birth certificate and of the entry of their identification register;

c.Lack of criminal records of each of the applicants;

d.Certification of marriage certificate of the applicants or of the de facto union where this is the case, issued by the corresponding Register;

e.Proof of employment or economic income of the applicant or applicants;

f.Medical certification of physical and mental health of the applicants and of those living with them;

g.Recent photographs of the applicants.

If the applicant has been the child's tutor, in addition to the foregoing requirements and those contemplated in the present law, the applicant shall submit certification that their liquidation accounts were approved and that the child's property was delivered.

The requirements to be submitted by foreign applicants to initiate the adoption process are as follows:

a.Application containing the full name of the applicants, age, marital status, nationality, domicile, identification document and place to receive notifications;

b.Special judicial power of attorney in favor of a person who may represent them in Guatemala;

c.Legalized photocopy of the documents proving their personal identification;

d.Certification of the birth certificate issued by competent authority;

e.Clearance of criminal records for each of the applicants issued by the corresponding authority of their country;

f.Certification of the marriage certificate of the applicants or of the de facto union issued by the corresponding authority of their country;

g.Proof of employment or economic income of the applicants;

h.Medical certification of physical and mental health of the applicants and of those who live with them;

i.Recent photographs of the applicants;

j.Certificate of having attended and completed the orientation process or its equivalent before the central authority in their country of origin;

k.Certificate of suitability issued by the Central Authority or its counterpart in the country of origin of the applicant or applicants.

Once adoptability has been declared by the judge of childhood and adolescence, the Central Authority shall carry out the selection of suitable persons for the child, within a time limit of ten days counted from the adoption request, priority having to be given to placement in a national family; if the impossibility of carrying out the national adoption is determined, the procedure for international adoption shall subsidiarily be carried out provided that it responds to the best interests of the child.

The decision selecting suitable persons shall state that in the placement of the child, his/her best interests, the right to his/her cultural identity, physical characteristics and the result of the medical, socioeconomic and psychological evaluations have been taken into account.

The Central Authority shall verify that at each stage of the adoption proceedings what is prescribed in this law is observed.

The selection of the adoptive parents for a specific child must be carried out considering the following criteria:

a.Best interests of the child;

b.Right to cultural identity;

c.Physical and medical aspects;

d.Socioeconomic aspects;

e.Psychological aspects.

Prior to the socialization period, the adopters shall submit in writing their express acceptance of the assignment of the child within a time limit of no more than ten days following the respective notification.

Upon receipt of the acceptance by the Central Authority, it shall authorize a period of cohabitation and socialization in person between the applicants and the child, of not less than five working days, in both national and international adoptions.

The Central Authority shall inform the judge that the cohabitation and socialization period has begun.

Two days after the socialization period has concluded, the Central Authority shall ask the child, in accordance with the child's age and maturity, to ratify the child's wish to be adopted. The child's consent shall be given or recorded in writing.

Upon conclusion of the socialization process and taking into account the opinion of the child, the Multidisciplinary Team shall issue, within the three days following, counted from the socialization period, an empathy report that shall indicate the quality of the relationship established between the prospective adopters and the adoptee.

In the case of international adoptions, it must be recorded in writing in the file that the central authorities of both States agree to continue with the adoption procedure.

The commitment of the Central Authority or counterpart of the receiving country to provide all information enabling follow-up of the child placed for adoption shall also be required; they shall also take the necessary measures for the child to receive authorization to leave Guatemala, as well as for entry and permanent residence in the State of reception. The Central Authority shall provide complete and accurate information on the child, including the report on his background, to the Central Authority of the receiving country or to its accredited bodies, so that the Central Authority of the receiving country makes the determination in accordance with Article 5, literal c) of the Hague Convention.

Once the administrative proceedings of this chapter have concluded, the Central Authority shall determine within the following five days the admissibility of the adoption, considering the prohibitions established by this law in its Article 10.

The Central Authority shall issue certifications of the reports, so that the interested parties may attach them to their request for homologation before the judge hearing the case.

The family judge shall receive the adoption application filed by the interested parties and, upon verifying that the administrative adoption procedure satisfies the requirements of this law and the Hague Convention, without further proceedings, the judge shall homologate and grant the adoption, whether national or international, within a time limit of no more than three working days and shall order its registration in the corresponding Register, granting custody of the child for purposes of immigration and adoption abroad.

If the judge finds that any legal requirement was omitted, the judge shall remit the file to the Central Authority for it to be remedied and shall ensure the protection of the child.

Once all the requirements indicated above for the judicial processing of the adoption proceedings have been met, the family judge shall issue its final decision granting the adoption. In the event that the adoptee had property, a record of inventory thereof shall be drawn up.

The judge shall not grant the adoption or issue the final adoption decision if it is found that any legal requirement has not been complied with. In such case it shall refer the file to the Central Authority to attempt to remedy the problem and at the same time shall order the appropriate protection measure for the child.

The decisions that terminate the judicial procedure shall be appealable within the three days following notification thereof and must be filed before the same judge who issued it or before the jurisdictional family chamber.

Once the appeal has been filed, the judge, after prior notification to all the parties, shall elevate the complete case file to the family jurisdictional chamber, which shall set a hearing within a time limit not exceeding five days from receipt of the record and shall order to notify the parties so that the appellant may make use of the appeal within a time limit not exceeding twenty-four hours; the judge shall finally decide the appeal within a time limit not exceeding three days after the hearing has been held.

The certification of the judicial decision of adoption shall be presented to the corresponding register so that the registration is recorded in the respective books; likewise, the certification of the opinion issued by the Central Authority shall be attached.

Where a certification of the corresponding record is issued, it shall omit that the person is adopted, except when requested by the interested party himself or a competent judge.

Once the adoption has been authorized by the judge, the judge shall notify it to the Central Authority and shall verify that the adoptee's right to family is restored, by means of an act in which the adopters and the adoptee personally appear.

Once the judge has issued the final decision, and it has become final, upholding the adoption and granting custody of the child in cases of international adoption, the Central Authority shall issue the certificate that the adoption has been carried out in accordance with this law and the Hague Convention within a time limit of no more than eight days.

The State of Guatemala shall recognize the adoption certified by the competent authority of a Member State of the Convention, if it has been carried out in accordance therewith, unless it is manifestly contrary to public order.

All notarial and judicial adoption procedures pending at the time this law enters into force must be registered before the Central Authority, within a time limit of no more than thirty days, for purposes of registration of the case; they shall continue to be processed in accordance with the law in force at the time of their initiation. Cases not registered within the stated time limit shall be resolved in accordance with the procedures established in this law.

Within thirty days of this law being in force, the Central Authority in coordination with the Attorney General's Office shall verify the situation of the children subject to this law who are in the care and custody of persons, substitute families and private institutions, in order to initiate the register, authorization and supervision proceedings established in this law; as well as to initiate the judicial proceedings for the protection of the children.

All private entities in charge of the guardianship and care of boys, girls and adolescents shall be registered with the Central Authority, within thirty days following the entry into force of this law.

Within the General Budget of Income and Expenditures of the State, the necessary line items earmarked for the institutions responsible for the implementation of this Law shall be included.

The patrimony of the National Adoption Council shall be composed of:

a.The funds from the General Budget of Income and Expenditures of the State, allocated to it annually;

b.The immovable property and movable property owned by it;

c.The remuneration received for the provision of services in accordance with this law.

In the case of international adoptions, the Central Authority shall periodically establish the fee for the services it provides and shall make it public. National adoptions are exempt from payment of said fee. Funds and resources derived from the application of this law and its regulations shall be private funds and resources for the operation of the National Adoption Council.

The institutions responsible for constituting the Board of Directors shall designate their members as established in Article 19, within fifteen days following the entry into force of this law.

Within sixty days following the entry into force of this law, the Executive Branch shall issue the regulation of this law, which shall include the establishment of the respective fees.