O cabimento para a Ação de Adoção
A pessoa, ou casal, os quais desejam adotar uma criança e ou um adolescente contando com a “expressa concordância” dos pais ou do representante legal do adotando ( como visto no artigo 45, Estatuto da Criança e do Adolescente), ou, ainda, no caso do adotando não ter pais conhecidos (não consta filiação, mãe e ou pai, no registro de nascimento), ou estes já terem sido destituídos do poder familiar por meio de ação própria, deve fazer uso da “ação de adoção”. Entretanto, se, ao contrário, o adotante enfrentar a oposição dos pais ou do representante legal do menor, ou, sendo estes identificados na certidão de nascimento, estiverem em lugar incerto ou não sabido (v. g., desaparecidos), deverá socorrer-se da “ação de destituição do poder familiar cumulada com adoção”.
Podem adotar os maiores de 18 (dezoito) anos, qualquer que seja o seu estado civil (artigo 42, ECA). Os casados e os que vivem em união estável podem adotar conjuntamente, assim como os separados, os divorciados e os ex-companheiros, contanto que acordem sobre a guarda, o regime de visitas e desde que o estágio de convivência tenha se iniciado antes da separação fática do casal. Qualquer que seja o caso, o adotante deve ser pelo menos 16 (dezesseis) anos mais velho do que o adotando. Por fim, cabe registrar que, embora a legislação seja omissa sobre o tema, estão se multiplicando as decisões judiciais que concedem a adoção de menor a casais homossexuais.
É importante atentar-se, ainda, para o fato de que a alteração trazida a lume pela Lei nº 12.010/2009 impõe aos interessados em adotar a obrigatoriedade de prévia inscrição junto à autoridade judiciária competente (Juízo da Infância e da Juventude da Comarca), salvo os casos excepcionados no § 13, artigo 50, do ECA. O pedido de inscrição deve obedecer ao procedimento previsto nos artigos 197-A a 197-E do ECA (“Da Habilitação de Pretendentes à Adoção”).
Base Legal
A adoção encontra-se disciplinada nos artigos 39 a 52-D da Lei nº 8.069/90, o conhecido “Estatuto da Criança e do Adolescente”, ou simplesmente “ECA”.
Procedimento
A ação de adoção deve seguir o procedimento especial previsto nos artigos 165 e seguintes da Lei º 8.069/90-ECA, que pode ser assim resumido:
- petição inicial;
- concessão da guarda provisória, quando for o caso;
- designação de audiência de ratificação, em que os pais naturais deverão confirmar sua concordância com o pedido de adoção, quando for o caso;
- realização da perícia social;
- audiência (oitiva do menor e testemunhas, quando for o caso);
- sentença;
O Ministério Público deve intervir em todas as fases do procedimento.
Foro Competente
A ação de adoção deve ser interposta no domicílio dos pais ou responsável (guardião), ou, na falta destes, no lugar onde se encontre a criança ou o adolescente, conforme norma do artigo 147, Lei nº 8.096/90-ECA.
Questões a serem respondidas pelo Autor
Com escopo de viabilizar o melhor resultado possível para o constituinte, o Advogado deve conversar demoradamente com ele sobre o caso, procurando obter respostas para as seguintes questões, entre outras:
- como teve contato com a criança?
- há quanto tempo tem a guarda da criança?
- qual a idade da criança?
- a criança possui bens ou rendas? quais?
- quem são e onde se encontram os pais naturais da criança?
- os pais naturais concordam com a adoção?
- por que deseja adotar o menor?
- tem consciência do que representa a adoção de uma criança?
- sabe que a adoção é irretratável?
- qual deverá ser o nome do adotando (prenome e sobrenome)?
Documentos
O interessado deve ser orientado a fornecer ao advogado a cópia dos seguintes documentos, entre outros que o caso em particular estiver a exigir:
- documentos pessoais do adotante (RG, CPF, certidão de casamento, comprovante de residência, número de telefone e endereço eletrônico – e-mail);
- comprovante de rendimentos e CTPS (a apresentação destes documentos tem como objetivo demonstrar que o adotante tem condições de prover as necessidades materiais do adotando);
- documentos pessoais do adotando (certidão de nascimento, RG e CPF);
- certidão de matrícula escolar (quando for o caso);
- documentos gerais ligados ao caso, por exemplo: boletim de ocorrência, termo de guarda provisória, termo de entrega do conselho tutelar, etc.;
- fotos e outros documentos que comprovem a natureza e o tempo da relação existente entre o adotante e o adotando;
- rol de testemunhas (nome, endereço, telefone, e-mail e profissão de ao menos três pessoas que possam confirmar a boa relação entre adotante e adotando e as demais circunstâncias do caso).
Provas
Formalmente, esta ação exige apenas que os pais naturais ratifiquem em juízo sua concordância com o pedido, assim como o menor, quando for maior de 12 anos (art. 1.621, CC); contudo, é costume que o juiz determine a realização de estudo social e ou pisicológico, no qual se verificará se o adotante apresenta condições financeiras e morais para cuidar do menor.
Valor da Causa
Em razão da sua natureza, a ação de adoção dificilmente envolverá questões patrimoniais, que serviriam de parâmetro para a fixação do valor da causa. Diante desse fato e ciente da obrigatoriedade de atribuição de um valor à causa (artigo 291, CPC), o autor tem autonomia para fixá-lo segundo critérios subjetivos próprios, desde que compatíveis com as circunstâncias gerais do caso. Neste sentido, a jurisprudência: “A fixação de um valor absurdo, fora da realidade, sem pertinência com os autos, ademais de agredir a lógica do razoável, viola o artigo 258 do Código de Processo Civil, base sobre a qual fincou-se o julgado recorrido para admitir o valor indicado pelo autor” (STJ, REsp 167475-SP, DJ 31-5-99, p. 144, Rel. Min. Carlos Alberto Menezes, Terceira Turma, v. u.).
Despesas
Segundo o § 2º, do artigo 141, da Lei nº 8.069/90-ECA: “as ações judiciais da competência da Justiça da Infância e da Juventude são isentas de custas e emolumentos, ressalvada a hipótese de litigância de má-fé”.
Adoção de Pessoa Maior
Informa o artigo 1.619 do Código Civil que “a adoção de maiores de 18 (dezoito) anos dependerá da assistência efetiva do poder público e de sentença constitutiva, aplicando-se, no que couber, as regras gerais da Lei 8.069, de 13 de julho de 1990 – Estatuto da Criança e do Adolescente”. A adoção de maior pode ser feita por simples acordo, posteriormente homologado pelo Poder Judiciário, quando, por exemplo, a pessoa a ser adotada não possui registro paterno e ou materno, conforme o caso. Entretanto, se a pessoa a ser adotada já for registrada (pai ou mãe biológica), é necessário ajuizar “ação de adoção litigiosa” em face do adotando e do pai ou mãe registrária, conforme o caso. Esta ação deve ser endereçada ao juiz cível ou, naquelas comarcas onde se encontra organizada, ao juiz da vara de família.
Dicas
• havendo na comarca juízo especializado da infância e juventude, a este deve ser endereçado a petição inicial da ação de adoção;
• ao preparar a petição inicial, o Advogado deve estar atento aos requisitos específicos indicados nos arts. 156 a 165 da Lei nº 8.069/90-ECA;
• o art. 47, § 3º, do ECA, faculta ao adotante requerer que o novo registro do adotado seja lavrado no Cartório do Registro Civil do Município de sua residência, razão pelo qual o Advogado deve consultar o seu cliente se tem tal interesse nesta possibilidade;
• além do sobrenome, também o prenome do adotando pode ser alterado (art. 47, § 5º, ECA), razão pela qual o Advogado deve consultar o adotante sobre o assunto;
• quando o pedido de adoção contar com a concordância dos pais naturais do menor, que, neste caso, passa a ser requisito essencial (art. 45, ECA), é conveniente que o Advogado certifique-se pessoalmente sobre este fato, vez que não é raro os pais naturais negarem o consentimento na frente do juiz, uma vez informados sobre as consequências “definitivas” do pedido de adoção. Por prudência, é melhor conversar pessoalmente com eles antes de ajuizar a ação, com escopo de verificar se realmente entendem a extensão do que estão por fazer;
• a adoção é acima de tudo um ato de amor, definitivo, irretratável, assim o Advogado deve certificar-se de que o adotante entende as consequências do seu pedido e se o está fazendo pelas razões certas. Já presenciei um requerente dizer ao juiz que deseja a adoção do filho de sua companheira a fim de que lhe fosse estendido o plano de saúde que tinha na sua empresa. Obviamente, o pedido foi negado.
Referência Bibliográfica:
Jr., ARAUJO, Gediel de. Prática no Processo Civil, 22ª edição. Atlas, 01/2018. VitalBook file.
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