If you are fostering a child and are pursuing adoption but the case may not be able to move to the termination of parental rights, you could check to see if guardianship might be an option. What is the difference?
To adopt a child, the biological parents must have their parental rights terminated first. This can be done voluntarily or involuntarily. In cases of infant adoption that take place through an agency, the termination of rights is most likely done voluntarily by the parents who are placing the child for adoption. Even in some foster care cases, parents will opt to voluntarily terminate their parental rights rather than continue an open case with the county. Typically, this will happen if the case has been ongoing with the little movement toward reunification. If a parent voluntarily terminates their rights, it may help them if they are ever in the position to parent a child in the future. When rights are terminated involuntarily, it means the parents do not agree to the termination, however, there is enough evidence that it is in the best interest of the child to terminate the rights.
In the case of guardianship, the biological parent still maintains the parental rights of the child in question. Guardianship would give another party (for instance, foster parents or a family member) the ability to temporarily make legal decisions for the child and to have placement of the child.
One of the biggest and most important differences between adoption and guardianship is permanency. Adoption is a permanent action that will legally make you the parent of the child in question. Guardianship is a temporary action, and since parental rights are not terminated, the biological parent may regain placement of the child. Adoption is a lifelong commitment, whereas, guardianship is a temporary commitment.
What if you choose to do a guardianship, but later wish to adopt the child?
In some cases, this may be possible. You would need to check with your local adoption attorney to find out if this is something you can pursue.
When a child is placed for adoption and parental rights are terminated, this releases the biological parents from any responsibilities including financial responsibilities. Once an adoption is finalized, the biological parent is no longer required to pay any child support or help to financially support the child.
In guardianship cases, parents maintain their rights and are often required to pay child support to the guardian of the child. While the child resides with the guardian, who will handle day-to-day care, the parent must still help financially with the child’s care.
Because adoption is a permanent situation, the process to adopt is typically more involved and lengthy than the process to become a guardian to a child.
What are some things to consider when deciding which of these choices is right for you and the child?
Consider if the child will need permanent care from someone other than their biological parents. For instance, if the biological parents will not be available or able to care for the child for many years, then it may be in the child’s best interest to have permanency and be adopted. However, if the parents need help with care for just a period of time (for instance, while they finish school or while they are deployed) then guardianship is the better option. In this type of situation, the parent may be unavailable for a time but will be able to return to regular parenting duties in the future.
The decision to pursue guardianship or adoption should always take into consideration what will be the best for the child in his or her future.
If you become the guardian of a child, you can legally sign documents for the child to receive health care, enroll in school, obtain a driver’s license, etc. However, the parent still maintains rights and may also sign for those things too. In a guardianship, you have agreed to take over the daily care of a child temporarily until the parent can do so again.
The time frame for guardianship is unique to each situation. In some cases, it may be one year, and in others, it may be several years, or even until the child is 18 years old. The important thing to remember is that the parent can end the guardianship at any time by petitioning the court to end the guardianship.
If you adopt a child, you are legally that child’s parent. You can make all decisions regarding their care and are the one to sign any legal documents for the minor child. In an adoption, the biological parents have had their rights terminated, and they would no longer be able to legally sign any documents for the child. Adoption is permanent with no time limit. Biological parents are unable to petition the court to regain their parental rights later. Once the rights of the biological parents are terminated, they no longer hold any legal right to the child involved.
What about inheritance?
Inheritance is affected by the guardianship or adoption relationship as well. If inheritance is something important to you, here are a few tips for how it works in these situations.
In guardianship, a child doesn’t automatically have the right to inherit from their guardian. If a guardian wishes to include the child in their inheritance, it must be included in their legal will. If the child is not mentioned in the will to receive an inheritance, they have no legal recourse to try to obtain an inheritance from the guardian.
However, in the case of adoption, you can legally inherit from your adoptive parent, but no longer from your biological parents. Of course, if someone chooses to give you an inheritance by including it in their legal will, you are still able to gain the inheritance. In an adoption, the law recognizes you are their child and will allow inheritance to be collected without special mention in a will.
Which would be the best choice?
Let’s think of some scenarios where guardianship or adoption may be considered, and which would be the best choice.
If a biological mother is being deployed with the military for a length of time, should the mother seek guardianship or adoption for her child?
Because the mother is unable to care for the child’s daily needs for a certain length of time but plans to resume the care of her child when she is able, guardianship may be the appropriate option for this situation.
If a child’s biological parents are incarcerated for a length of time, should the child be adopted or should they be placed with a guardian?
In this case, it is dependent on the length of the incarceration. In some cases, a child is placed in foster care or kinship care when parents are incarcerated. If the incarceration is under two years in length, typically the termination of parental rights will not be pursued, and the child is expected to return to the care of their parents.
In other cases, where the incarceration is expected to be long-term, such as 5, 10, or more years, both guardianship and adoption may be considered.
If the child is placed in foster care during this time, the court may seek to give the child a permanent home given the lengthy time frame where the biological parents will be unable to care for or provide for the child. Children deserve to feel safe and secure in a family. For a child to be kept in limbo for most of their childhood, awaiting the release of a parent, is not in the best interest of the child.
In some cases, there may be a family member or other provider who is willing to become the child’s legal guardian for the extended time needed for the parent to be released. Because the legal requirements to terminate parental rights can be quite difficult to achieve, even in a long-term incarceration scenario, it may be faster and easier to choose guardianship over adoption.
The age of the child in question is also a big factor in decisions like the one mentioned above. If parents are unavailable for the bulk of their child’s childhood, and the child will grow up as part of another family, adoption may likely be the best option. When a child spends most of their young life bonding and being part of another family, it would be very traumatic for them to have to leave the comfort of that family after many years.
However, if the child is placed in the situation is an older child, who spent much of their childhood with their parents, they may not wish to be adopted. They may prefer guardianship with the option to return to live with their biological family when they are able.
What if your young daughter has a baby, and wants to give you temporary guardianship until she finishes school (high school or even college)? This is a situation where guardianship would be a great option. If your child asks for help with raising their child for a few years until they have earned a diploma or degree, but fully expects to be able to take over parental duties in time, guardianship is a great option. If she knows she will need help, but only temporarily, to finish her education to help ensure a better future for her and her child, she may ask for help in the form of guardianship.
In this instance, adopting the child may not be the appropriate solution because she wishes to regain placement and parenting duties and has a goal and time frame in mind.
This same type of scenario works with other relatives or family friends as well. If you decide to help with the care of their children while they pursue a life goal, temporary guardianship may be the right choice.
However, what if you provide care for a child, thinking it is a temporary situation, but the situation looks to be headed to a more permanent arrangement?
If you are a guardian, can you later adopt the child?
In some instances, you may be able to do so. If the parents voluntarily choose to terminate their rights after a period of time to allow the adoption, then you would be able to do so. In another situation, if this is a foster or kinship placement, social services may ask if you are interested in adopting the child if they believe permanency is the best thing for the child. If the child’s parents are not taking steps to follow the plan to regain placement of their child and the Department of Social Services has enough evidence to terminate rights involuntarily, then a guardianship situation may change to an adoptive situation.
This may vary depending on where you live. In some areas, you may need to request that social services become involved again after guardianship. In many instances, they are no longer involved once guardianship has been established. You may need to request involvement and concern that adoption may be a better option for the child and re-open the case.
Often, in the cases, of older children or teens, adoptive homes are difficult to find. Many teens age out of the foster care system without having a permanent family situation. When a child is older, it may be easier to choose guardianship. Since the process is easier and less time-consuming than adoption is, guardianship for an older child sometimes makes the most sense. If a child’s case for adoption would drag out beyond their 18th birthday, it may be better to choose legal guardianship to give a sense of stability and to be able to have legal rights to help the child make decisions. Again, the parents would maintain their rights as well. But if there is neither guardianship nor adoption in these cases, the child may remain in foster care with social workers making many decisions for their care.
Whether you pursue guardianship or adoption, each comes with great responsibility. Adoption is a permanent responsibility to the child, a lifelong commitment. Guardianship may be a temporary commitment to the child, but you are agreeing to take responsibility for that child during that time. Financially, a guardianship may be less of a financial burden since parents are still required to contribute to the child’s care. However, depending on the situation, if adopting a child, you may qualify for an adoption subsidy to help.
All of these things are important to consider when faced with making the decision that is best for the child.
Considering adoption? Let us help you on your journey to creating your forever family. Visit Adoption.org or call 1-800-ADOPT-98.
