The Distinction Between Legal Guardianship and Adoption

What is a Legal Guardian?

A legal guardianship is a court-appointed role that designates an individual to be the responsible party for a child in a manner similar to a parent. The legal definition of guardianship varies by state, but often focuses on the best interests of the child. In Michigan, for instance, a child may be appointed to a guardian if there is a finding that the child "is orphaned, abandoned, neglected or abused, mentally or physically handicapped, incapacitated, has no one willing or able to properly care for him or her, is not provided with necessary care and supervision by his or her parents or legal custodian, or his or her parent’s parental rights have been terminated." Michigan Comp. Laws § 700.5204.
Guardianship is intended to provide a semblance of stability to a child or to temporarily fill a void in the parent-child relationship when necessary, as reflected in the main criteria for the appointment of a legal guardian. Furthermore, because legal guardianship may involve the state’s termination of parental rights , most states (at least where there are a large population of children in care or a historical influx of orphans) appoint a court-certified individual or agency to serve as legal guardian for the child once the statutory factors justifying the finding of guardianship are met. The court-certified individual or agency is then charged with the responsibilities traditionally assigned to parent, such as providing food, housing, medical care, and education to the child.
The factors triggering a legal guardianship appointment typically involve a relatively short-lived situation, like when the parents are temporarily incapacitated. However, in cases where the circumstance is expected to persist for an extended period of time and/or there is no likelihood of reunification between the child and the parent, a permanent legal guardianship may be contemplated. These types of permanency appointments are often preferred by states when there is a concern that a child will remain uncertain about whether the parent remains a meaningful part of his or her life. For example, "the permanency plan of a child in foster care includes a plan for guardianship when the child has a prospective guardian who is designated to assume custody after parental rights have been terminated and the child is likely to be eligible for Title IV-E Adoption Assistance." 45 CFR § 1356.70(a)(1).

What is an Adoption?

Adoption is a legal process that legally transfers rights and obligations from one individual to another. The process is utilized when the family setting changes when someone previously not related to a child, becomes that child’s legal parent. The most common example of this is adoption by a step-parent, but other circumstances exist when adoption may be appropriate, such as with a family member who has been raising a child whose parents can no longer do so, or in cases of step-child adoption after a parent has remarried.
The adoption process can allow an individual who is not a natural parent to take on all legal rights and responsibilities towards a minor child. A final adoption decree terminates biological parent’s rights and makes the adopting parent the child’s legal parent. Adoption deprives the biological parent of his or her rights and status as parent, and bestows those rights and status upon the adoptive parent (legally recognized by the court). An adoption involves the termination of parental rights of at least one parent, and the assumption of legal, custodial status of the child.
No special consent is necessary for the adoption of an adult. In that case it would still be advisable to have clear and detailed, independent adult adoptee/adoptive parent agreements regarding making commitments similar to those made by biological parents, such as financial agreements and inheritance rights.
There are no residency requirements for adoption in Ohio and even some out-of-state adoptions are recognized in Ohio. However, the Ohio public Children Services Division (CSD) does not have jurisdiction over interstate adoptions.

Difference Between Guardianship and Adoption

When it comes to child custody issues, there are two alternatives for situations where biological parents are either unwilling or unable to take care of their child. You can either seek legal guardianship, or pursue adoption. There are a number of key differences between these two arrangements that you should understand before making a decision about the future of your children. The most significant difference between these two options is that guardianship is not permanent, while adoption is. The main purpose of adoption is permanence. In most circumstances, adoption essentially severs the legal relationship that existed between the biological parents and the child, and transfers that relationship to the adoptive parents. This means that even if the birth parents go through a turnaround process and no longer have issues with drug use, violent behavior or anything else that would make them unfit as parents, the adoption cannot be undone. Guardianship, on the other hand, is often seen as something of a temporary situation. Certainly, it can be the case that an agreement may last for the child’s entire life and even carry over to the child’s own children. But it is more common that a legal guardianship ends once the situation that necessitated it has improved. Therefore, when the court grants guardianship, the order will often state specific review periods for the arrangement, at which point the guardianship could end.
Adoption grants a number of legal rights that guardianship does not. For example, legal guardians are not able to establish a name change for the child without going through the adoption process. The same is true of removing the child from the state. An adoptive parent can also obtain a passport for a child without requiring parental consent, as opposed to a guardian, who would still be subject to the aforementioned requirements of all legal guardians. From a legal standpoint, the guardianship of a child may be sought in two different ways. The court process requires the guardian to be certified through the petition process, and granted guardianship through the court system. The other option is through an affidavit of guardianship, which is an informal process. The attachment of a form with the birth certificate of a child is often sufficient to establish an informal guardianship, depending on the nature of the situation. Because adoption is pursued through the court system, it requires the assistance of a lawyer. The petition must be file with the court, and the petition must contain a number of different pieces of information that outline the situation of both the adoptive parents and the biological parents.

The Pros and Cons of Guardianship and Adoption

When considering guardianship vs. adoption, one should keep in mind the pros and cons for the child, the guardian/adoptive parents, and the biological parent(s). For the child, adoption means a permanent family who will remain with them for their whole lives, and sometimes provides a more stable environment (for example, if the child is placed with a relative and the parents are not successful in their reunification efforts the child won’t be moved around to new foster homes). However, it can also mean loss of connections with biological parents and siblings who the child loves very much. Children may also fear being "abandoned" by a new family if they see this as a way of "divorcing" their biological family. For adoptive parents, adoption provides them with the permanency of a child, and good adoptive parents should have the financial resources, time and interest to get involved in the child’s life. One potential downside for adoptive parents of young children is the "bonding" period that is required by Minnesota Law prior to an adoption finalize (minimum of six months if the child was living with the parents). There can be a lot of uncertainty during this period.
For biological parents, there are both pros and cons. On one hand, adoption means relief from the burdens of parenting a special needs child for the parent(s) – no more decisions , discipline, parenting, doctor’s appointments, etc. On the other hand, adoption means completely severing ties with the child. This often feels like a finality to parents who have worked very hard in difficult circumstances to reunify with their children.
Guardianship (which is called "conservatorship" in Texas) is more of a temporary solution. A guardianship can be terminated upon a parent’s request or at the end of a specified period of time. Parents maintain their parental rights, but ask a relative or trusted friend to help make decisions for the child during a period of time when those parents are not able to do so. There are several pros and cons to guardianship. On one hand, guardianship allows parents to retain their rights, while providing a relative or trusted friend the opportunity to care for the child when the parent cannot. On the other hand, guardianship termination proceedings can be complicated, and a child’s needs may change requiring a longer-term or permanent solution. On the other hand, guardianship termination proceedings may provide parents who can "show-up" with a clearer return date, and be less likely to see their child during their incapacity. In the end, guardianship v. adoption really depends on the child and parent’s specific needs.

Legal and Emotional Implications

Both legal guardianship and adoption involve relinquishing parental rights to the state, and both require legal action to effectuate. Even in cases where the biological parent is not involved, the participating parties must pitch in to act as an advocate for the child. As such, the court will consider not only the preferences of the individual acting as the guardian or adoptive parent but the best interests of the child. The person or couple filing to assume these responsibilities should therefore be ready to present any relatives or other interested parties who may act as a suitable alternative (and who would first be given priority over those seeking adoption or guardianship of the child). This does not mean that a biological parent cannot take the necessary legal steps to receive guardianship over his or her child, even if the child’s safety has been compromised in the past. If a parent has cleaned up his or her act, has effectively dealt with issues such as addiction or domestic violence, and is ready to care for the child once again, the court may be willing to relinquish custody if incarcerated parents can demonstrate a substantial commitment to their responsibilities. The court generally prefers to keep families together whenever possible, so past misdeeds may not be viewed as a barrier to regaining custodial rights. The court will not, however, take minimal steps to facilitate any such transition. It may be necessary to complete parenting classes or substance abuse programs, demonstrate a reliable source of income, attend support group meetings on a regular basis, and/or comply with various other requirements for the sake of parenting potential.
The child involved will also experience emotional consequences during the transition from one system of care to another. Both the guardian and the child will need to be prepared to deal with issues related to grief, loss, separation and attachment. While some procedures allow for ongoing contact with family members — which may be good for the child — others will provide only sporadic visitation opportunities or no visits at all. Parents will often have visitation rights with their children, but again, these rights may be subject to certain guidelines. For example, the parent may only be permitted to visit the child in a certain location, may be required to abide by a set visitation schedule or may only be allowed to bring the child to his or her home during designated time periods. Guardians are expected to consult with the child’s biological parent(s) about scheduled visitation dates, and must seek their approval before directly contacting the child or giving him or her back to their custody. Failure to follow these guidelines may result in a loss of custody. Adoption also has emotional ramifications for the birth parent(s). From a legal standpoint, the rights of the biological parent are legally terminated once he or she severs all claims to responsibility and custody of the child. Thus, even if foster care or guardianship is ultimately not desired, the biological parent simply cannot reclaim parental functions. His or her consent will be sought as a matter of course, although such consent is typically dispensed with in cases of abuse, neglect or abandonment.

How to Choose: Guardianship or Adoption?

When it comes to caring for a child in difficult circumstances, prospective guardians and adoptive parents alike are faced with a choice of the least bad option. There are no adequate solutions to the problem of an absent, unfit or deceased parent. Should I adopt? Should I pursue legal guardianship? Both options exist under Oregon law to allow a stable home for children. But like so much in the law, the difference is real, and sometimes stark. A legal guardian gets most of the rights and responsibilities available to fit and available parents of a child. The guardian cares for the child, lives with her and is in charge of her education. The key difference of guardianship is that the parent or parents are not legally gone. A legal guardian has more or less permanent physical custody but not necessarily legal custody. The need for a guardian can arise if the parent consents to guardianship, if they have become temporarily insane, or if a child is neglected or abused. Adoption is a more absolute severing of the ties of biology or prior custodianship between parent and child. An adoption order terminates the legal parent-child relationship. The parent’s obligations are over. Parenthood by adoption has nothing to do with biology. It may have been the case in the past that an adoption was only possible with the father’s consent. That is not the case today. Adoption in Oregon is not for the dad who is truly a part of the family. Adoption is for the case where a child is being kept away from a parent because that parent is dangerous or could be dangerous. That is the case of the step father adoption, where dad equals monster. It might be that a person decides to be the legal guardian of a kid when things are only uncertain regarding mom and dad. A child may have been removed from a parent but that parent may still have the intention, or at least the hope, of being a fit parent someday. It happens for whatever reason that the legal parent slips to the rear. It happens that mom goes to jail and dad is unknown . In these situations, a prospective adoptive parent may reasonably conclude that the kid might better be served by the limited guardianship, which allows for the possibility of resumption of parenting. A prospective guardian or adoptive parent should always start the process by talking with counsel experienced in these matters. Even a legal guardianship can become a nightmare if the parent starts making demands for unsupervised visitation. That question of how to balance parental rights against the need for safety and stability can only be decided in the court. If your case has issues relating to parental substance abuse, sex crimes, child molestation, or other abuse, you should definitely seek counsel before you offer yourself as a legal guardian. An attorney will be able to tell you the level of sophistication of the prospective guardian/adoptive parent necessary to be a satisfactory parent. There are no guarantees that the court will accept that proposed guardian/adoptive parent. Also, even when the guidance of counsel is fully pursued, a decision of guardianship or adoption should always start with the best interests of the child at the center. Legal guardianship and adoption should be considered without regard to personal considerations such as the desire for a title as adoptive parent. Being a legal guardian is in reality enough of a commitment. For example, it might seem to be a good idea to adopt a child if the absent dad will not cooperate with consenting to guardianship. But being a stranger in the life of a child, constant threats of having the family torn apart by the pesky man who thinks you are not good enough for his kid are going to be in constant conflict with the progress of the adoption. If you cannot live without the title of adoption or do not want to do the scene behind the curtain to get the title of adoptive parent, just consider being a guardian. The adoption statutes certainly increase the work involved and the risks for parent and child and for the little life together. For people who know that this is the right child for them, it is well worth the effort.