Adoption vs. Legal Guardianship: What's Best for Your Situation?

Choosing to expand your family is not something anyone should take lightly. Some choose to do so by adopting a child. Others become legal guardians to their friends’ or family members’ children.

Regardless of your situation, it’s important to understand what you’re getting into. There are legal ramifications of both adoption and legal guardianship. Of course, people who become legal guardians typically do so when a sudden change in circumstances arises. This usually isn’t the case with adoption.

Here, we’ll discuss the differences between adoption and legal guardianship, including how these mechanisms affect parental rights and the long-term impact on a child’s birth parents.

The legal processes involved in both adoption and guardianship can vary significantly from state to state. If you’re considering adopting a child or becoming their legal guardian, or you need to arrange for long-term care for your own child, consider talking to a local family law attorney. They can walk you through your options and help you determine the best solution.

Differences Between Adoption and Legal Guardianship

There are several differences between adoption and legal guardianship. The primary difference is that guardianship does not terminate a biological parent’s parental rights, while adoption does.

Once the adoption process is complete, the biological parents no longer have any parental rights. In fact, one of the legal requirements of adoption is the termination of parental rights. Either the biological parents consent to the termination, or the judge will order termination.

When you become the legal guardian of a minor child, it’s usually for a definite period. Adoptive parents, on the other hand, will remain the legal parents of their adopted child forever.

However, there are some situations where legal guardianship may be “permanent,” lasting until the child turns 18. The child’s biological parents might also have very limited parental rights under the guardianship, depending on the circumstances.

Another key difference between adoptive families and legal guardians is that a child’s biological parent can ask the court to terminate the guardianship at any time. This is different from the legal relationship between adoptive parents and their adopted child.

However, just because a parent petitions to end the legal guardianship, doesn’t mean they automatically regain custody. The judge will consider whether ending the guardianship is in the child’s best interests.

Meanwhile, an adopted child’s biological parents have no right to reclaim their parental rights. Once the adoption is complete, the birth parents have no rights to visitation, custody, or decision-making.

One thing a person must consider when deciding between adoption and guardianship is whether they want the child to have inheritance rights. An adoptive child shares the same intestacy rights as children who are not adopted. These rights don’t exist for a child and their legal guardian. Unless the child’s guardian specifies that they want the child to inherit assets in their will, they will receive nothing.

Why Would Someone Become a Legal Guardian of a Child?

Most people may wonder why one would discuss adoption and legal guardianship in the same breath. However, there are times when both options are available to a legal parent.

Some situations in which a legal guardianship may be a viable option include:

• The biological parent(s) must enter a rehabilitation center or jail/prison

• The birth parent(s) are not able to serve as a caregiver to their child

• The birth parents cannot provide the necessary financial support to their children

• One of the child’s biological parents must leave the country for work

• One of the birth parents needs to undergo medical treatment

• A child’s birth family neglects or refuses to meet their parental responsibilities

• The biological parent(s) cannot meet the needs of the child

• A parent dies, and there is nobody able or willing to adopt the child

• One or both of the biological parents have special needs and cannot care for the child

• Any other situation where legal guardianship is in the best interests of the child

Before a judge approves a petition for guardianship or legal custody, the judge will ensure that it serves the child’s well-being.

Duties and Responsibilities of a Legal Guardian

When a person becomes the legal guardian of a minor child, they take on certain duties and responsibilities. The duties are no different than those a parent has to their adoptive children or birth children.

Ultimately, a legal guardian must ensure that they meet the needs of the child. This goes beyond the child’s physical needs, such as food, shelter, and clothing. It also includes ensuring the child enjoys good emotional and mental health.

A legal guardian must provide the child with a safe living situation. This means they don’t expose the child to such things as domestic violence or drug use. Generally, the guardian must do what it takes to ensure the child’s well-being and disturb the child’s life as little as possible.

Termination of Parental Rights

As briefly stated above, a key difference between legal guardianship and adoption concerns the termination of parental rights. When a parent gives their child up for adoption, they surrender their parental rights. This means they no longer have a say in the child’s education, healthcare, and other day-to-day decisions.

With legal guardianship, the birth parents retain some parental rights. They typically maintain the right to visit their child. Of course, there are some situations where the court may require supervised visitation (or no visitation at all). It all depends on the circumstances.

Who Qualifies as the Child’s Legal Parent?

When a person adopts a child, they become their legal parent. They will have custody of the child, and the birth parents’ rights will terminate. If the parties pursue a private adoption, the birth parents will typically consent to the termination of their rights. If, however, the biological parents refuse consent, the adoptive parent can request that the judge terminate their rights.

In an adoption, the adoptive parents become the adoptive child’s legal parents the moment the judge signs the adoption papers. In legal guardianship, the birth parents remain the child’s legal parent. This means they retain the power to make decisions on behalf of their child. They will likely also have visitation rights.

An Adoption Attorney Can Help

Keep in mind that adoption and legal guardianship laws vary from state to state. If you’re ready to expand your family, meeting with a skilled adoption attorney is a good idea.

Deciding whether to adopt a child or become their legal guardian is a major decision that will impact the rest of your life. An experienced attorney can explain the legal process or both of these processes and answer any questions you may have.