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Legal Guardianship vs. Adoption: What’s Right for You?

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.

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    1. Hi, Judy — We encourage you to contact a local adoption attorney for more information on the legal obligations of and available resources for guardianship.

    2. We are in Washington state and we are permanent legal guardians. As a permanent legal guardian you are not responsible all of the financial obligations of raising the child(ren). While we have many expenses in raising these children the state does pay for healthcare and childcare (we both work full-time), I believe you can also get need-based grocery assistance. We were granted this status through a court order obtained by hiring a private attorney, while the children were not wards of the state, so our situation may not match yours.

  1. Hi I have a question now my sister had legal guardianship of a minor for 10yrs (mother and dad were not in picture) so there was a open case with cws my sister was having personal problems.so the next of kin was my mother she practically raised her for all of 10yrs until cws decided to make a home. Visit and eventually removed the child out of a stable inviorment into the hands of the natural mother .my question is since my sister gave up all rights is there anything we can do to make the natural mother let us have visitations .ps my money is still devesrated over this matter and it’s only been bout 5 mos thank you

    1. Hi, George — This seems to be a complicated situation, so we encourage you to work with an attorney regarding visitation rights to the minor.

  2. How do I get an attorney to discuss what is good for me as I have ,2 grand daughters in my custody now and going for adoption soon

  3. I have a couple of questions, I halve custody and legal guardianship of my two grandsons. My husband and I now want to adopt them. My daughter has never named a father and I was granted custody and legal guardianship on the count she was unable to care for them financially. My husband is not my daughters father but we have been married since she was 5. My daughters does not visit her boys. No Birthday calls or anything. She has not provided for them emotionally or financially but when I asked if we could adopt she says no. The boys are 6 and 2 and I have had the youngest since he was a month old and the oldest since he was 2 weeks. I need to know what I need to do since she hasn’t named a father a refuses to tell me. No father is listed on the birth certificate and the judge never asked about lawyer I had for the case was no help in proving she was unfit. He just told me that I got the kids and that was it.

    1. Hi, Stacey — Birth father laws vary greatly based on the state you are in, so the best way to answer your questions is by speaking with a local adoption attorney. Good luck!

  4. I have had full guardianship of my niece since she was a month old. I brought her home from the hospital. Because both if her parents were on drugs. So DFS made me her guardian. And then on July 3rd both parents signed full guardianship over to me. She is 8 months old now. And neither parent has seen her. The both left state. So my husband and i would like to adopt her.

  5. I am a legal guardian of four kids, mother has passed, don’t know any father of three of them, how do I go about adopting

  6. My Sister is terminally ill and will be leaving 3 children of which one is still a minor (12 years old). Her will is for her minor child to be taken cared of by our parents who are in Asia which means that the minor child will have to live outside of America. She is also considering as an option if her eldest son can take care of the minor sibling here in WA. By the way, the Father of the minor child is unnamed. She will not tell us And not in the birth certificate also.

    1. My questions are (a). Will the grandparents be allowed as guardians even if they live outside the US (b) if it the Brother who will eventually take care of the minor child, does he need to secure a legal guardianship approval?

  7. My daughter died leaving her then 9 to son. I’ve supported them all his life, we lived together. She received a very moderate child support award which she was paid involuntarily. When she passed, her support order expired and when I had it legally changed to me as his now court-appointed guardian, he got it lowered to $50 monthly. My grandson and I live on a “needs to be fixed ” income, I’ve already incurred $4600+ in legal fees just for Letters of Guardianship. Are there legal and/or financial benefits to adoption, tax breaks, etc.? I haven’t had to file any tax returns since 2003 but it may behoove me to do so now.

    1. Hi, Kaya — Because this situation is unique, we’d encourage you to reach out to a local financial planner or family law attorney for more information on this topic. Good luck!

  8. I need advice on the best option for my child,she is a special needs child who is currently staying with me in Africa but she is an American citizen I want to bring her back to the states but would like her to have a guardian because its hard for me to get a permanent stay visa in America. she longs for a sister or brother and I can’t have children, hence joining another family would be the best option for her wellbeing, how can I find the most suitable home for her.
    Please assist.

    1. Hi, Annette — This sounds like a complicated situation. We encourage you to contact a local immigration attorney or social worker for more information on the options available to you. Good luck!

  9. I have had legal guardianship of my nephew for 8 years. He visits his mother on weekends by my say so, i can say no at any time and have occasionally for his best interest. I am solely financially responsible for him. Do I owe his mother anything financially when he stays with her on weekends?

  10. can a foster parent give guardianship to the mother of the child after 14 years
    . he is 17 now . would we have to go to court or for that

  11. If both biological parents are deceased, is there even a legal need to adopt, when I already have permanent custody of the child? Would adoption serve any other purpose at this point?
    It’s a 6-9 month process, which requires a lot of hoops and about $2,300.00 and I don’t see what difference it would even make at this point.

  12. It helped when you said that a legal guardship is temporary, and it helps to ensure the child receives the necessary care. One of my godfather’s employees will be deported, and he is thinking of adopting his employee’s son. With that set, I’ll advise him to consider guard shipping for the moment his employee is gone. We will be looking for a lawyer as well to help him with this one.

  13. Hey , I’m a new mother I’m just here trying to see what the best choice is for my child I’m 5 months pregnant I want my child when I have my stuff together , and I see legal guardianship is what I’m short of looking for I don’t want him w family I’m afraid they won’t treat him right, I just want him to be properly tooken care of until I get threw school and create a better life for him where he won’t have to worry about anything I will still like a line of communication open so I know how he’s doing

  14. Hello, I’ve had my 3 year old niece in my custody for a year now. Her parents willingly surrendered her because they could not provide for her. She has been with me all year, her parents don’t want the responsibility but want to be known as her parents. She sees them maybe once a month and there is no other contact. I abide their needs and wishes when they have them because I don’t have guardianship but I want something more permanent for her. Since they clearly don’t want the responsibility and don’t make time. Any suggestions??

  15. Can I adopt a child that I have guardianship of because both parents are deceased, without an attorney.? State of Alabama and if so, where do I find the paperwork?

    1. Hi, Nicole — We are not legal experts, so we cannot provide the legal advice you’re looking for. We highly encourage you to contact an attorney in your state to learn more; state laws vary greatly, and this is an extremely important legal process. You can start your search for an attorney here: https://adoptionart.org/find-an-attorney/

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