Adoption in Spain: Requirements and Process for Expats

🇪🇸 Read the original in Spanish

Adopting a child is one of the most significant legal and human acts regulated by our legal system, a process where the best interests of the minor prevail over any other legitimate desire of the adopters. In Spain, the path to adoption is designed to guarantee the maximum protection of the child, which translates into a rigorous procedure with demanding legal and administrative requirements that often generate doubts and uncertainty for aspiring families. If you are considering starting this life project, understanding the legal framework, the practical steps, and the suitability criteria in depth will allow you to face the process with legal certainty and the necessary emotional preparation.

The Legal Framework of Adoption in Spain: Substantive Rules

Adoption in Spain is a child protection measure that irreversibly breaks the legal ties between the adopted child and their family of origin (except in very specific, limited exceptions, such as the adoption of a spouse's child), establishing a new relationship of filiation identical to marital or non-marital filiation.

The reference regulatory framework is mainly established in the Spanish Civil Code (Book I, Title VII, Chapter II, Articles 175 to 180), deeply reformed by Law 26/2015, of July 28, modifying the protection system for children and adolescents. This reform unified criteria at the national level and reinforced the role of the Entidades Públicas (Public Entities) for child protection.

Likewise, in the procedural and voluntary jurisdiction field, Law 15/2015, of July 2, on Voluntary Jurisdiction is key, as it regulates judicial intervention for the constitution of the adoption. For its part, Organic Law 1/2004, of December 28, on Integrated Protection Measures against Gender Violence, directly influences the assessment of the suitability of the adopters, preventing individuals with final convictions for gender or domestic violence from accessing adoption, thus guaranteeing an absolutely safe environment for the minor.

Requirements for Adopters (Article 175 of the Civil Code)

For a person or couple to adopt in Spain, the Civil Code establishes strict limits on age and capacity:

• Minimum age: At least one of the adopters must be over 25 years old. In the case of adoption by couples (married couples or parejas de hecho [de facto partners]), it is sufficient for one of them to have reached this age.
• Age difference: The age difference between the adopter and the adopted child must be at least 16 years and cannot exceed 45 years. If it is a couple, the age of the youngest member is used as a reference to calculate that the 45-year difference with the minor is not exceeded. This rule of a maximum 45-year difference can be waived in specific cases, such as the adoption of groups of siblings or minors with special needs.
• Legal capacity: The adopter must be in full exercise of their civil rights and not be deprived of parental rights (patria potestad) over previous children.

Who Can Be Adopted?

Not all minors are in a legal situation to be adopted. The Civil Code stipulates that only unemancipated minors who find themselves in one of the following situations can be adopted:

1. Children whose biological parents have been deprived of parental rights (patria potestad) by a court ruling.
2. Minors whose parents have given their consent (asentimiento) to the adoption.
3. Minors who are in a situation of abandonment (desamparo), whose guardianship (tutela) has been assumed by the corresponding Public Entity.

You cannot adopt a descendant (a grandparent cannot adopt their grandchild), a sibling, or a ward by their guardian (tutor) until the general accounts of the guardianship have been judicially approved.

The Adoption Process Step-by-Step

The adoption procedure in Spain consists of two clearly differentiated phases: an administrative phase (managed by the social services of the Comunidad Autónoma [Autonomous Community] of residence of the applicants) and a judicial phase (which culminates with a decree from the Judge of First Instance).

Below are the 6 fundamental steps to complete the process:

Step 1: Submission of the Application and Information Sessions

The process begins before the Public Entity for Child Protection of the corresponding Autonomous Community. Applicants must obligatorily attend information and preparation sessions organized by the administration. After this, the adoption application is formally submitted along with the required documentation (birth certificates, criminal record checks, physical and mental health certificates, fe de vida y estado [certificate of life and civil status], and tax returns).

Step 2: Assessment and Suitability Process

This is the most exhaustive phase. Social workers and psychologists from the administration conduct a series of individual and joint interviews, as well as visits to the applicants' home. The objective is to evaluate their emotional stability, their relationship (if any), their socio-economic situation, their living environment, and their real motivations for adopting.

Step 3: Obtaining the Certificate of Suitability

If the evaluation is positive, the Public Entity issues the Certificado de Idoneidad (Certificate of Suitability) and a selection proposal. This document certifies that the applicants are fit to exercise parental rights over an adopted minor. The validity period of this certificate is usually 3 years, after which it must be renewed.

Step 4: Family Selection and Pre-adoptive Placement (guarda con fines de adopción)

Once declared suitable, applicants enter a selection registry. When a minor whose needs match the profile of the family is identified, the Public Entity proposes the placement. A matching phase then begins, and subsequently, the delegation of placement for adoption purposes (guarda con fines de adopción, formerly known as pre-adoptive foster care) is formalized. During this period, the minor already lives with the family, under the monitoring and supervision of the administration's technicians.

Step 5: Adoption Proposal before the Court

After a satisfactory period of cohabitation and adaptation (which usually ranges between 3 and 6 months), the Public Entity presents the formal adoption proposal to the corresponding Court of First Instance (Juzgado de Primera Instancia). This proposal is an indispensable procedural requirement (except in exceptional cases such as the adoption of a third-degree relative or the spouse's child, where the adopter can present the proposal directly).

Step 6: Judicial Decree and Registration in the Civil Registry

The Judge of First Instance assesses the file, hears the minor (provided they are over 12 years old or have sufficient maturity) and the adopters. If the judge considers that the adoption benefits the minor, they issue an Auto de Adopción (Adoption Decree), which is final and irrevocable. Finally, the decree is sent to the Registro Civil (Civil Registry) to register the minor with the surnames of their new parents, and their first name can also be modified if it is considered beneficial for their integration.

Deadlines, Costs, and Key Figures of Adoption

National adoption in Spain is a free process in its administrative and judicial phases, although there are indirect costs and deadlines that are worth knowing precisely:

• Cost of national adoption: €0 in administrative and judicial fees. The only associated costs are obtaining private documents (specific medical certificates, notarized copies, etc.), which do not usually exceed €150 to €300 in total.
• Cost of international adoption: If you opt for the international route through Organismos Acreditados de Adopción Internacional (OAAI - Accredited International Adoption Agencies), the total cost can range between €12,000 and €30,000, depending on the minor's country of origin (government fees of the country, sworn translations, legalizations, mandatory travel, and stay).
• Average waiting time for national adoption: The average waiting time in Spain for the adoption of a healthy young baby is between 5 and 8 years, due to the low number of minors in this legal situation and the high demand from applicant families.
• Resolution period for the Certificate of Suitability: The administration has a legal deadline of 6 months to resolve the suitability file from the submission of the application, although in practice this period is usually delayed between 9 and 12 months due to the workload of the social services.
• Consent age of the minor: A minor of 12 years or older must give their express consent before the Judge for the adoption to be approved. Minors under 12 years but with sufficient maturity must be heard by the Judge and the Ministerio Fiscal (Public Prosecutor's Office).

Concrete Examples of Adoption Processes

To illustrate how legal age limits and deadlines are applied, we analyze two common situations in family law firms:

Example 1: National adoption by a de facto couple (pareja de hecho)

• The applicants: Carlos (41 years old) and Elena (38 years old) live in Madrid and decide to start a national adoption process for a young child.
• Application of the law: They comfortably meet the minimum age requirement (both are over 25 years old). Regarding the age difference with the minor, Elena is taken as the reference (the youngest, 38 years old). To respect the maximum difference limit of 45 years established in the Civil Code, the minor they adopt must have, at a minimum, an age that prevents exceeding that threshold. In this case, as Elena is young, they could adopt a newborn baby (0 years old), since the age difference is 38 years (less than 45). The assessment process takes them 10 months and, after 6 years on the waiting list, they are assigned a minor of 2 years old. The total cost of the national process for them is €0 in public fees.

Example 2: International adoption and age limit

• The applicant: Javier (49 years old) is a single applicant residing in Barcelona who opts for international adoption in an Eastern European country through an OAAI.
• Application of the law: Since Javier is 49 years old, the general rule of the Civil Code on the maximum age difference limit (45 years) determines that the minor he adopts must be at least 4 years old (49 - 45 = 4). He could not legally adopt a 1-year-old baby, as the age difference would be 48 years, exceeding the legal limit. Javier pays a total of €18,500 broken down into fees for the accredited agency, translations of documents into the local language, consular legalizations, and the expenses of the two mandatory trips to the minor's country of origin to formalize the adoption before the foreign authorities.

Mistakes You Should Avoid

• Hiding relevant information during suitability interviews: Lying about past physical or mental health issues, serious financial problems, criminal records, or severe relationship crises is a critical mistake. Social services professionals cross-reference data and conduct deep evaluations; detecting a contradiction or deliberate concealment will lead to the automatic denial of the Certificado de Idoneidad due to a lack of transparency and honesty.
• Starting the process with unresolved grief over infertility: Many couples turn to adoption as a "Plan B" after failed assisted reproduction treatments. If the grief over the loss of a biological child is not completely resolved, the administration's psychologists will detect it during the assessment interviews and deny suitability, as it is considered that the adopted minor should not come to replace an unresolved emotional void.
• Ignoring the maximum permitted age difference: Designing an adoption project for a newborn baby when the applicants are over 45 years old is an insurmountable legal planning error. The Civil Code is strict with the limit of a 45-year maximum age difference between adopter and adopted, so individuals over 45 years old must focus their project on adopting older minors or groups of siblings.
• Confusing temporary foster care with permanent adoption: Foster care (acogimiento familiar), whether temporary or permanent, is not an adoption. In foster care, the care of the minor is assumed by the foster family, but guardianship remains under the Public Entity or the biological parents retain their parental rights (patria potestad). Starting foster care with the expectation that it will automatically turn into adoption usually leads to severe frustration and legal conflicts if the biological family claims the return of the minor.

Frequently Asked Questions (FAQ)

Can a single, divorced, or same-sex couple adopt in Spain?

Yes, Spanish legislation does not discriminate on the basis of civil status or sexual orientation. The Civil Code allows adoption both individually (single, widowed, or divorced persons) and jointly (married couples and parejas de hecho, regardless of whether they are of the same or different sex). The suitability assessment criteria focus exclusively on parenting capacities and the stability of the applicant, not on their family structure.

What happens if the biological parents of the minor oppose the adoption?

The opposition of the biological parents does not always prevent the adoption. If the biological parents have been deprived of their parental rights (patria potestad) by a final court ruling due to a serious breach of their duties (abandonment of the minor), their consent is not necessary to constitute the adoption. However, the law requires that they be heard in the judicial adoption file if they have not been deprived of parental rights, but the final decision will be made by the Judge, attending exclusively to the best interests of the minor.

Can an adoption be revoked once constituted by the Judge?

No. Adoption in Spain is irrevocable. Once the Judge issues the Auto de Adopción and it becomes final, the relationship of filiation is definitive and has the same effects as biological filiation. Adoptive parents cannot "renounce" the adoption or return the minor under any circumstances. The only way an adoption would be extinguished is if the adoptive parents were deprived of parental rights by judicial means due to abuse or abandonment, with the minor returning to the public protection system.

Does the adopted minor have the right to know their biological origins?

Yes, this is a fundamental right guaranteed by Article 180 of the Civil Code. Adopted persons have the right, upon reaching adulthood or during their minority represented by their parents, to know their biological data and the medical and family history of their parents of origin. Public Entities for child protection are obliged to keep this information for at least 50 years and to provide assistance and mediation to adopted individuals who decide to start searching for their origins.

Summary

• The minimum age to adopt in Spain is 25 years (it is sufficient for one of the members of the couple to meet it) and the maximum age difference with the minor cannot exceed 45 years.
• The Certificate of Suitability (Certificado de Idoneidad) is the indispensable and mandatory administrative document issued by social services after an exhaustive psychological and social assessment of the applicants.
• National adoption is completely free in its public procedures, although the current average waiting time is between 5 and 8 years due to the scarcity of minors in a state of adoptability.
• International adoption is managed through OAAIs and entails economic costs of between €12,000 and €30,000, depending on the requirements of the minor's country of origin.
• The process is irrevocable once the Judge issues the Auto de Adopción, definitively extinguishing all legal ties with the biological family of origin.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.