Guardianship vs. Custody vs. Adoption
The terms guardianship, custody, and adoption often confuse people as their differences are nuanced and complicated. But there are important differences between the three.
This article addresses the basic concepts you may want to know if you consider adoption or guardianship for your child.
The Best Interests of the Child Standard
First, it's important to discuss family courts' standard. Family courts make decisions in the best interests of the child. This means the court will consider several factors in the child's safety and well-being. The court uses this standard when determining the custody of the child or whether to grant legal guardianship. The court also considers this standard in the adoption process.
Some factors the court will consider include the needs of the child, including any special needs. The court will look at the ability of each parent to meet their parental responsibilities. The court will look at the physical and mental health of both parents. It will consider the parent-child relationship and whether there are grounds for termination of parental rights for birth parents. Above all, the court will consider the child's welfare.
What is Custody?
Custody is a legal arrangement that stipulates who maintains and cares for the minor child. This usually happens when parents divorce or separate. Custody is legal or physical. Legal custody relates to the parent's ability to decide for the child. These include your child's religion, education, healthcare, medical treatment, and medical care. Physical custody refers to where your child lives.
What is a Guardianship?
If you are a child's legal guardian, you will have the rights and legal responsibilities to care for the child until they reach majority age. A guardian is the primary caregiver of the child. You or a judge may also revoke this legal relationship.
Parents can be guardians, but guardianship is often set up because a minor child needs someone else to make legal decisions. In guardianship, parents keep their parental rights and parental responsibilities.
Findlaw's guardianship page provides helpful resources if you want to know more about the process.
Differences Between Custody and Guardianship
The main difference between the two is that custody involves a biological parent. "guardianship" is generally used when someone other than a biological parent cares for the child. This may be a member of the family or a close family friend.
What is Adoption?
Unlike guardianship, adoption terminates the biological parents' rights. Instead, the adoptive parents have exclusive custody and parental rights over the child. Adoptive families take in the adoptive child and assume all legal responsibilities of the child. After the adoption is final, the adoptive parents become the child's legal parents.
Adoption is a permanent arrangement and can't be reversed by the biological parents. Children in foster care may live with foster parents or families, but these are temporary situations.
Adoption or Guardianship?
As a parent, you ultimately decide whether adoption or guardianship is best for your child. The following table outlines the main differences between adoption and guardianship, which could help you make an informed decision.
Considering Adoption or Guardianship? Talk to an Attorney
Whichever route you choose, adoption and guardianship require awareness of the laws and extensive research. States follow different procedures. For these reasons, speaking to an attorney can be highly beneficial.
A family law attorney can provide valuable legal advice. They can help you get legal guardianship or represent you in the adoption process. They can review your eligibility for custody of a child. Attorneys can help throughout the process until you get a final court order.
Speak to a family law attorney about your case today.
Can I Solve This on My Own or Do I Need an Attorney?
- Both parents can seek custody of their children — with or without an attorney
- An attorney can help get the custody and visitation agreement you want
- An attorney will advocate for your rights as a parent
A lawyer can help protect your rights and your children's best interests. Many attorneys offer free consultations.
Don't Forget About Estate Planning
Once new child custody arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.