If you are researching adoption, you may have encountered the term “legal guardianship” and are curious about the differences between these terms. Or maybe you are weighing the pros and cons of legal guardianship versus adoption.
At Angel Adoption, we are passionate about demystifying all things related to the adoption process, so we put together this brief guide that provides more information about the differences between adoption and legal guardianship.
What are the Differences & Similarities Between Adoption and Legal Guardianship?
First and foremost, let’s discuss what adoption is versus what legal guardianship is.
Legal guardianship can be defined as a temporary caregiving situation for a child in which a biological parent places their child in the custody of another to ensure they receive all of the necessary care that the child needs. This may happen in the case of illness, incarceration, or the death of a biological parent.
Adoption is the legal process in which a child becomes a full and permanent legal member of a family, in which adoptive parents have an obligation to meet all of the needs of the child.
Where these legal statuses are similar is that both adoption and legal guardianship are legitimate mechanisms for providing a child with a stable and supportive home that allows them to thrive. In both cases, this person welcoming the child carries all of the parental responsibilities including but not limited to providing basic necessities, emotional support, education and consenting to medical treatments for the child.
These terms differ in that adoption is the process to permanently place a child into a family whereas legal guardianship is temporary, so there are different legalities involved depending on which avenue is best for everyone involved.
How do you get legal guardianship of a child?
One would be granted legal guardianship of a child in a situation where a parent cannot care for their child and another individual is named as the child’s legal guardian for a temporary amount of time.
This process is initiated by filing guardianship papers in court, which then prompts a court investigator to interview the prospective legal guardian, the child, and the child’s parents (where possible). Going through the interview process allows the court investigator to make a recommendation to a judge on whether the prospective legal guardian is fit to take on this role and a judge reviews the case to make a decision on granting this temporary legal status. It is important to note that in order to be granted legal guardianship of the child, the court must find that it is in the best interest of the child. Getting the guardianship approved by the court ensures that the person appointed as the guardian has both legal and physical guardianship over the child.
What Are the Financial Obligations for Legal Guardians?
When in a legal guardianship, the adult who has legal custody has the responsibility to meet all of the child’s needs and the child’s biological parent is legally required to continue financial support for them. With that said, it is the responsibility of the legal guardian to ensure that the child receives food, shelter, clothing, education, and medical care. So if the financial support from the biological parent is not enough, it is the legal guardians responsibility to step in and provide these necessities. Because of this, it is possible for the legal guardian to receive benefits that allow them to support the child through Guardianship Assistance Programs. These benefits vary from state to state, with some states like Delaware offering no state funded assistance, to other states that offer a subsidy to help cover costs for the child. The Child Welfare Agency of the United States has published this helpful guide that provides information on adoption and guardianship assistance by state for reference.
Does Guardianship Override Parental Rights?
The answer to this question is no. Because of the temporary nature of the legal guardianship, the biological parent retains all parental rights for the child until they turn 18 years old. This allows the child’s legal parents to terminate the legal guardianship if and when they are in a situation where they can fully provide for and meet the child’s needs. Legal guardianship laws vary state to state, so when in doubt, it is best to contact a lawyer who specializes in this area of family law to clarify any gray areas you may encounter.
In the case of adoption, the process itself legally terminates the rights of the biological parent and grants custody and parental rights to the adoptive parents. In an adoption case, after the adoption is granted, the biological parent cannot reclaim rights to the child, and this also releases them from any obligation to pay child support. Additionally, unless there is an open adoption arrangement put in place that has been previously agreed upon, the biological parent does not have any automatic visitation rights to the child.
What is Best: Adoption or Legal Guardianship?
The answer to this depends on various factors and is up to individual families to decide.
If you are a biological parent weighing the pros and cons of adoption versus legal guardianship, you will want to ask yourself questions such as: Can you fulfill your obligations as a parent and provide proper care and support for your child in the near future when you have full legal custody? Do you want to have a future relationship with your child? Do you have the ability to offer financial support while your child is under legal guardianship?
If you are a prospective legal guardian, you will want to ask yourself questions such as: Do you have a home that is stable enough to provide a safe place where a child can be nurtured? Do you have the emotional bandwidth to act as a temporary parent for a child who may be coming from an unstable or stressful home life? If the biological parent cannot provide enough financial support to meet the child’s needs, can you step in and provide this support where necessary?
In the case of legal guardianship and adoption, these are decisions that should be made after conducting a lot of research and taking a good amount of time to weigh the pros and cons of both options. There is no one size fits all answer in this situation, but arming yourself with the facts and a proper amount of self reflection can allow you to make the right decision for your family, whether you are a biological parent seeking to place their child under legal guardianship or a prospective legal guardian in a position to care for a child.