Adoption vs. Foster Care: What Are the Key Differences?

Foster care and adoption are both ways for families to provide stable, loving homes for children in crisis. Both foster care and adoption involve bringing children into your family from outside.

However, the goals of foster care and adoption are quite different, and the legal processes involved give different rights to adoptive parents and foster parents.

What is Foster Care?

Sometimes, removal from their parents is a child's best interest. Social services workers may remove a child from the biological parents if the home is unsafe, if the parents are abusive or unfit, or for other reasons.

Foster care gives the child a stable temporary home while the parents resolve whatever issues led to removing the child from their care.

The foster care system uses several types of foster homes:

• Residential homes, where a couple or foster family bring a foster child or siblings into their home
• Group homes, like dorms, with larger numbers of children live with several adult caregivers
• Kinship care, in which the relatives of a child care for them while the parents are unable to do so

Generally, the goal of foster care is to reunite the child with their biological family.

What is Adoption?

In adoption, an adoptive family makes a permanent home for a child. The birth mother may surrender her child to an agency for adoption, or a child may lose their parents due to an accident.

The adoption process is also used when a stepparent wants to adopt a spouse's biological child legally. Parents who conceive using assisted reproductive techniques like surrogacy also need to adopt their child to become legal parents.

What is Legal Guardianship?

When the birth parents can't make legal decisions for their child, they need a legal guardian. Sometimes the court may appoint a guardian, or the parents may have named a legal guardian before the event. Some things that can trigger a need for legal guardianship include:

• Parental incapacity, such as a serious medical illness or injury
• Mental illness or substance abuse
• Incarceration
• Domestic violence

A legal guardianship is a long-term court-ordered relationship. A legal guardian acts in place of the child's parents, but the parent's rights are not terminated. The guardian may need to report to the judge who ordered the guardianship about decisions made on behalf of the child.

Family members may become legal guardians for children when their parents are unable to care for them, but the family is unwilling to terminate the biological parent's rights.

Legal Rights of Parents

The biggest difference between foster care and adoption is parental rights. Foster parents may love and provide for the children in their care, but they are not legal parents. They are caregivers for their charges.

Foster Care

Child protective services (CPS) and social workers remove children from their biological parents for many reasons. The end goal is always reunification between the child and the parents unless the court or the parents terminate their parental rights.

During foster care, the biological parents still have most of the legal rights. The biological parents have the right to:

• Make educational and medical decisions for their child
• Have updates about their child's progress
• Visit with their child, although the court may limit or restrict the visits
• Appear at hearings involving their child and have representation if they wish

Foster parents do not make any decisions for the child's long-term welfare. But, they must provide for the foster child's needs. So, foster parents have the right to make immediate decisions about the child's daily well-being.

Foster parents have the legal right to:

• Be a part of the child's care team and participate in discussions about the child's welfare
• Receive training and support as a foster parent
• Receive notice of hearings or placement plans that could affect the child's well-being
• Assist with visitation between the child and the parents or siblings

In some states, foster parents can make some medical decisions for the children in their care, especially in an emergency. For example, in California, licensed foster parents can give consent for a child's routine medical and dental treatment.

Adoption

Adoptive parents have full parental rights after an adoption. In an adoption, the court terminates the birth parents' rights with a court order, and the adoptive parents become the legal parents. The main difference between adoption and foster care is permanency. Adoption is forever. Once adopted, the child is legally part of the adoptive family.

Before parents can adopt a child, the birth parents' parental rights must be terminated. The birth parents can voluntarily surrender their rights, or a judge can terminate parental rights with a court order. If the birth mother is already in contact with an adoption agency or adoptive family, she will complete the paperwork surrendering her legal rights as soon as the child is born.

Courts can sever parental rights for a number of reasons. Depending on the state, family law judges may decide to terminate parental rights when there is:

• A finding of physical or sexual abuse
• Neglect or abandonment of the child
• Long-term incarceration or institutionalization of the parent
• Inability to locate the parents despite best efforts to do so
• Other factors that make adoption the best interest of the child

The 15/22 rule requires states to begin termination of parental rights and adoption proceedings if a child has been in foster care for 15 of the last 22 months. There are exceptions to this rule, particularly if the child lives with another family member or if reunification efforts are ongoing.

Parental Support and Contact

Both adoptive parents and foster parents must undergo strict background checks, home studies, and attend pre-placement classes. Even in private adoptions, parents cannot legally adopt a child without going through agency checks for fitness and suitability.

Financial Support

Foster parents receive payments for their care of foster children. The amount of the foster care stipend depends on the state and the child's needs. The Social Security Administration provides funding, but each state handles distribution to foster families.

Foster care financial assistance pays for the foster child's food, clothing, and other costs of having another child in the household.

Adoptive families will not receive any state or federal aid after the adoption. Although the adoption process is expensive, it is illegal to pay for the placement or adoption of a child. Parents will not receive any compensation for adopting a child.

Once a child becomes part of the adoptive family, parents qualify for the same tax breaks and other benefits as they would receive from any child.

Get Legal Advice from a Family Law Attorney

Whether you're considering foster care or adoption, you will need legal advice on the best way to proceed. There are many types of adoption to consider, and many states encourage open adoption, where the birth parents and adoptive parents stay in contact. Foster parents should discuss the potential liability of becoming a foster family. Contact a family law attorney in your area who specializes in adoption or foster care to learn about your options.