One of the most common questions that lawyers receive from both current parents and hopeful parents is, “What is the difference between adoption and legal guardianship?”
The biggest and most important difference when it comes to guardianship vs. adoption is the time period for which it is effective: Guardianship is temporary while adoption is permanent.
However, because the legal difference between adoption and legal guardianship can be nuanced and complicated, it’s easy for current parents and prospective parents to get the two processes confused. As with all legal adoption topics, it’s recommended that you speak to an experienced adoption attorney to learn more about your state’s specific laws on the matter before moving forward. An attorney can also examine your personal situation to determine whether adoption vs. guardianship is best for you.
Legal Guardianship vs. Adoption: The Similarities
The reason why adoption and legal guardianship are so confusing is because the two options have many similarities. They both accomplish the goal of providing a child with a stable, supportive parent — although, as you’ll find out below, the legal implications of that vary between adoption vs. guardianship.
In both situations, a parent is given the responsibility of caring for a child who is usually not biologically theirs. They have all the parental responsibilities involved with taking care of a child, like providing financial and emotional support and ensuring they receive all of the basic necessities required to survive, including a proper education. Both legal guardians and adoptive parents have the right to consent to medical treatment for the child.
Legal Guardianship vs. Adoption: The Differences
While both adoption and guardianship provide a stable parent to a child in need, the intended length and legal consequences of each process vary to two different extremes.
A legal guardianship is a temporary caregiving situation for a child. When a parent chooses to place their child in a legal guardianship, it’s to ensure the child receives necessary care that the legal parent can’t provide at the moment — but intends to after a certain period of time. Legal guardianships can give guardians custody of a child until they’re 18 years old; however, the legal parents retain all legal parental rights for the child. Therefore, the child’s legal parents can always terminate the guardianship and reclaim custody of the child, as well as pass inheritance along to the child. A legal guardian cannot pass along their own inheritance to the child in their custody unless a special provision is made in their will.
Adoption, on the other hand, is a process that legally terminates the rights of a child’s legal or biological parents as they are placed into the custody of new adoptive parents. Unlike guardianship, adoption is not temporary; it’s a permanent decision that legally separates a child from their legal/biological parents. After an adoption, a child’s legal or biological parents cannot reclaim the rights to their child. An adoption also excludes legal parents from any child support obligation and any rights to visitation, unless previously agreed upon in an open adoption agreement.
Depending on when an adoption takes place and what kind of adoption is completed, the legal adoption process can be much more involved than a legal guardianship process. For example, if a domestic infant adoption takes place, the adoptive parents and prospective birth mother will go through a different adoption process than two relatives completing an older child adoption.
Legal Guardianship vs. Adoption: What’s Right for You?
Usually, if a person is wondering, “Adoption versus guardianship?” it’s because they know of a situation where there’s a child in need but aren’t sure of what’s the best option for the child’s parent. Ultimately, this decision is always up to the child’s parent.
But, knowing the important differences between adoption and legal guardianship, how does a parent decide what’s the best caregiving option for their child? Before deciding between the two, parents should ask themselves these questions:
- Will you be able to provide proper care and support for your child in the near future? Can you commit to that obligation?
- Do you want to have a future relationship with your child? If so, what kind? (Remember, adoption does allow for open adoption communication.)
- Are you prepared to pay child support and provide other financial support while your child is under legal guardianship?
- Do you want your child to live with someone who they know is not their parent? Or do you want them to feel secure with a legal parental relationship?
When it comes to guardianship versus adoption, there is no one right answer — just the right answer for your situation. It’s not a decision to make without serious research and consideration, but there are many experienced adoption attorneys who can offer the legal advice you need to make the best choice for you. Reach out to an attorney near you to learn more about the two processes and, when you’re ready, to start the one that’s best for you and your child.