Guardianship and Adoption Overview
Legal Guardianship and adoption are legal arrangements that may appear similar; however, they are fundamentally different in many aspects. Legal guardianship gives a party the legal authority to care for and make decisions for a ward (a person who is the subject of a guardianship) while adoption creates a permanent legal relationship between a child and a parent. Within the legal system , guardianship proceedings are distinct from adoption proceedings, which have very different purposes and requirements. This section will provide a broad overview of legal guardianship and adoption, detailing the reasons behind each, as well as the process of gaining guardianship and adoption.
Legal Guardianship Defined
The definition of legal guardianship is the appointment of a guardian (individual or agency) to take care of a person or an individual’s property by a court. As applied to children, it is a situation where a person possesses the same right and obligation with a custodial parent to take care of a kid.
Generally you can become a guardian for somebody if that person cannot take care of him or herself, their property or their assets or if they have a minor child. In the family law arena this most often occurs where a person’s parental rights are terminated. Guardianships can be limited either in time or scope and either for an adult or for a child. Because appointing someone as a guardian can result in the loss of a parent’s rights or a testator’s wishes, the law is well established to protect potential affected parties. A guardian of a child will possess the same basic rights and obligations as a custodial parent. This includes the power to provide education for a child, the ability to decide where to live, doctor’s appointments and if the child can travel outside the state.
A custodian in a will or an agency representative with the Department of Children and Families are not the same as a guardian. This directly relates to the scope of a guardian’s rights and obligations because such a guardian has the full package whereas a custodian or agency only has select rights within the confines of the intention of the maker of the document.
What is Adoption?
Although adoption is used by many to create a legal relationship between parents and children, this does not occur until an adoption decree is issued. Unlike guardianship, which ends at the age of majority, the parent/child relationship that is created through adoption is a permanent, legal relationship, meaning the court’s ruling is final any time an adoption is granted.
Because of its permanence, the adoption process is notoriously lengthy and prone to complex legal issues. Georgia courts specifically require a home study and fingerprinted criminal background checks for prospective parents, as well as a consent hearing conducted by the court to ensure the adoption is in the best interests of the child.
Consent for adoption may be granted by a biological parent, the child, or a guardian. Whereas a biological parent cannot give consent if being forced into termination against their will, a guardian must give consent to the adoption. In this case, the termination of the guardianship must happen prior to adoption proceedings, and both a biological mother and father must consent if they are living and have parental rights over the child.
The adoption process ends with the issuance of a final journal entry, which makes the adoption an irreversible, legally binding process. Once adopted, the child is treated (from a legal perspective) as the child of the adopting parent — just as if he / she were a biological child. The adoption renders all previous guardianship agreements and parenting plans obsolete, and the adoptive parent now has full parental rights.
Distinction Between Guardianship and Adoption
Legally, there is a clear distinction between guardianship and adoption. A guardian is someone who provides custody to a child without legally terminating the rights of the parent. Guardianships are often sought by parents with temporary custody issues that can be resolved relatively quickly. For example, when a parent becomes sick or is incarcerated, a family member may step in and take the child until the parent can resume responsibility.
In contrast, adoptions are permanent legal changes. The rights of the parent are terminated at the time of the adoption, thus permanently severing the legal ties to the child. Most adoptions are subject to background checks of those involved, are overseen by the court, and usually require some type of court approval. Adoptions often occur when a family is looking to adopt a child from another family, such as an orphan, stepchild or foster child.
Guardians have physical custody of the child but do not have control over the long-term upbringing of the child. A guardian is not responsible for making important decisions such as education or health care. In fact, the parents of the child maintain the physical and legal responsibility for these issues even while the child is living with the guardian.
Adoption creates a legal relationship similar to that between a biological parent and a child. Legally, the child takes the last name of the new parent(s). The new parent assumes financial responsibility for the child. For all legal intents and purposes, the new parent(s) is the parent in the eyes of the law.
Legally and Personally
The legal and emotional implications of guardianship and adoption are significant considerations when deciding which option is best for your family. From a legal standpoint, adoption is a permanent solution, meaning that the child becomes a full legal member of the adoptive family and the biological parents’ legal rights and responsibilities are terminated. The adoptee is granted the same legal privileges and status as a biological child, including inheritance rights in the adoptive family. Conversely, guardianship does not sever the rights of the biological parents. While the guardian has the authority to make decisions for the child, the biological parents retain their legal relationship and duties toward the child.
From an emotional perspective, both options carry their own unique set of challenges. Adoption often requires a period of adjustment as a new family structure is formed, but once the legalities are completed , the bond is irrevocable. In some cases, the child may have difficulty understanding why they were placed for adoption and may experience a range of emotions such as anger, guilt, or loss as they come to terms with the decision.
Guardianship often comes about during a time of crisis, such as after the death of one or both parents. In these situations, the child may already be emotionally vulnerable. Without the extreme legal permanence of adoption, however, a guardian may experience anxiety about the possibility that a birth parent could return to reclaim their parental rights, creating insecurity for both the guardian and the child.
In summary, legal adoption forces a change in the status quo that has lasting implications for both the adopter and the adoptee. While it is not subject to the same emotional upheaval of the bond between guardian and ward, the abrupt transition from one family to another can be equally disruptive.
Choosing Between Them
One of the most important considerations is how long you expect to need the arrangement in order to avoid the complications discussed above. If you are uncertain, considering adoption to be a permanent solution, you can write the will with the appointment as guardian to be effective upon the death of the parent or the incapacity of the parent.
Another factor to consider is the relationship between the parents and the family of the prospective guardian. Do the grandparents approve of the arrangement? Are there concerns about the relationship becoming strained if the parents make a decision that the grandparents disagree with? Guardianship can create some very difficult situations if the guardian and the grandparents do not always agree. For this reason, some parents prefer guardians they have chosen rather than relatives.
Of course, marriage and divorce can impact your eligibility. If you are married, you must appoint your spouse as the guardian of your child, even if it is against your wishes. Likewise, divorced persons may find themselves facing custody concerns from the parent with whom the child resides. The judge may not permit the guardian to enter the home of the parent who has custody, or may even limit the rights of the guardian to care for the child.
It is important to think through the situation before making the decision. Often, hiring an experienced attorney to draft the documents and attend the court hearing is the best course. Otherwise, you may find yourself in court and trying to explain the entire situation to the judge. Each situation is unique, and consulting an attorney experienced in adoption and guardianship is advisable to ensure you meet your goals.
Common Questions Answered
Is Guardianship Only Temporary? – While it can be long term and may even extend until the child is an adult, guardianships are still typically temporary. In Indiana, a guardianship of person terminates when the child turns 18, or their disability is removed through a court finding.
Is Adoption Permanent? – Yes, an adoption creates a legal parent-child relationship and may only be altered by the court terminating the adoption. Unlike guardianship, if the child is placed by the Department of Child Services (DCS), then it may not be able to be undone by the parent and in most cases will only be undone by the court. A private adoption termination requires a petition, and a court finding of fraud or other basis for invalidation per Indiana statute.
Is Guardianship the Same as Adoption? – No, guardianship is not the same as adoption as it is only temporary while adoption is a permanent change in status. Importantly, the acquiring of guardianship does not preclude the acquiring of adoption.
Do I Need a Guardianship for Child I May or May Not Adopt – Guardianship (also known as custodian) is not required prior to adoption but rather as a means to achieve the adoption. If you intend to adopt, then the temporary guardianship or custodian is not needed to protect the child legally while the adoption is pending.
Will I Be Able to Marry or Remarry if I Have Guardianship or Custodianship – Yes, if you are seeking guardianship or custodianship as a single person you can marry or remarry, and maintain the guardianship or custodian status. Note, however, that if you have privity to custody of the child and are married, and your marriage ends in divorce, that may have some implications on your guardianship.
Closing Remarks
In conclusion, the most important factor to keep in mind, however, remains the fact that legally speaking, guardianship options can provide a number of advantages that adoption simply cannot. These benefits are not only limited to parents of minor children who decide not to pursue adoption, but also extend to those who wish to gain broader control of their loved one’s estate, as well as those who may not have the time or resources necessary to complete the lengthy adoption process.
It is important to realize that as children get older and develop into adulthood, the possibility of adoption may begin to diminish. However, the need for a guardian may still exist. Unlike adoption, legal guardianship can last indefinitely – or at least until a judge terminates the arrangement. Therefore , just because adoption is out of the question does not mean there are no options available.
While many people may associate the terms guardianship and adoption with minors, it is important to know that these legal options are available for loved ones of any age. People may pursue guardianship or adoption for a wide variety of reasons. However, guardianship and adoption are not interchangeable, and it is important for families to understand the differences between the two before making a decision. As guardianship arrangements can be much less restrictive than traditional adoption, many legal guardianship situations can last indefinitely and offer joint custody between parents in many cases. Overall, both guardianship and adoption provide families with a variety of options, depending on their specific needs. It is important to explore all the legal options available to your family for the brightest future possible.