What Is Permanent Legal Guardianship?
A permanent legal guardian is basically an individual who is granted legal authority for a child’s care, possession, or control. The Child Protection Services (CPS) and the Office of the Attorney General both maintain legal grounds for granting individuals permanent legal guardianship over a child. Those individuals who can be appointed as legal guardians include individuals who are either related to the child or have close ties to the child and his/her family. The conditions under which guardianship is granted in these cases include, but may not be limited to, parental incapacity or the death of a parent. Referrals for permanent legal guardianship come from a number of sources , including the court, private child placement agencies, and CPS.
There is a difference between guardianship and custody. The person who has custody of a child at any given point in time is merely responsible for that child while in their care. Under guardianship, however, the child is considered the legal responsibility of the guardian, and if he/she cannot provide the care, for any reason, they can be held legally responsible for any harm that comes to the child.
Let’s look at some examples of when permanent legal guardianship may be required to understand better how this system works.
What Is Adoption?
Adoption is the legal process through which an individual or couple makes a nonbiological child, stepchild, or relative a permanent addition to their family. Adoption in the State of Kentucky creates inchoate rights, such as the right to inherit from and through the custodial parent. In some states, adoption also creates a right for Social Security benefits to go to the adoptee for the length of time they are under the care of the parent.
In essence, adoption is the same as being the biological parent. No further measures need be taken to secure the parental rights and obligations of the adoptive parent. That being said, there are certain limitations on adoption. First, adoption cannot occur if one biological parent retains his or her parental rights. Second, it cannot occur if the person seeking to adopt is not legally competent. To be legally competent is to be over the age of 18, mentally sound, and financially able to care for the child. In addition, all criminal background checks, fingerprints, and other vetting procedures must be completed.
At the time of adoption, the parental rights of biological parents (if living) are terminated, and the child relinquishes any rights and ties to his or her biological family. The process includes a court petition, supervision for a minimum one-year probationary period, an influx of home inspections, background checks and other legal measures. Depending on the number of people being considered for adoption and the complicated nature of the adoption, it is possible for the court to grant the petition in less than one year, though this is highly unlikely.
Adoption may be used to create and/or secure the care of a child in the preadoption stage. At this point, a prospective adoptive family has no rights over the child, but there is a high likelihood that the adoption will be approved by the court. In this period, the prospective adoptive family will be considering the child for anything from as low as five or six months to three years. During this time, the biological parents have still not lost their parental rights. However, for all intents and purposes, the child is already in the process of adoption and the case is likely to go through. Sometimes a child will be placed with a family in the preadoption stage and will later be removed from the home once the biological parent(s) are located. This is not likely, but it is still a possibility.
Legal Distinctions between Guardianship & Adoption
A legal guardianship is not the same as legal adoption in either the rights or obligations that attach to each. A guardian is appointed for the child to care for the child only. Adoption on the other hand is a permanent legal proceeding whereby all parental rights of the biological parents and all obligations to the child are transferred to another person…forever. In an adoption, the natural parents are severed from the child. In effect, the natural parents are no longer related to the child either in a blood sense or legally. In the case of adoption, the child has gained a parent but lost his or her biological parents. In the case of a guardianship, the child retains the legal status with the biological parent to whom he has a relationship but neither gives the biological parent legal powers nor makes the guardian a parent to the child.
A guardian has a different status with the child. Although the guardian is placed in a position to care for the child and provide basic necessities, the guardian does not stand in the place of the child’s parents. Guardians work with foster care social workers, CASA volunteers and court appointed special advocates to minister to the child’s needs and make decisions based on what is best for the child. Because the biological parents are still deemed to be the child’s parents, a guardian has no rights to make decisions over the child’s health, education and other matters. Guardians must work in concert with the biological parents.
In some cases, the biological parents do not want the child taken from their home but need temporary assistance to reach their goals. In some situations, the biological parents work with the guardian to achieve reunification while others do not. The guardian is obliged to keep the biological parents apprised of developments with the child; however if the biological parents are not taking steps to reunify, the guardian may seek a termination of parental rights. The petition for termination of parental rights (TPR) severs the relationship between the biological parents and the child. No longer are the biological parents’ rights or obligations attached to the child. At that point, adoption becomes the focus of the continued placement of the child with the guardian.
Once adoption is finalized, the child becomes a permanent member of the family of the adoptive parents. All bonds are transferred from the biological parents to the adoptive parents legalize the new arrangement. The adoptive parents see the child as their own for all intents and purposes. Adoption is a final step in making a family unit whole by removing all legal bonds that existed between the child and the biological parents.
Emotional and Social Factors
In addition to the functional differences between adoption and guardianship, there are also emotional implications that are important to consider. Long-term guardianship can be a significant way to replace parent-child relationships in families of origin with a parenting relationship with guardian(s) who step in to care for the child permanently. This is a model more closely resembling adoption, but still considerably different in terms of legal permanence. Perhaps the major difference is that in adoption, the child’s biological parent (or parents) lose all contact with the adoptive family. In contrast, long-term guardianship often permits ongoing contact with the biological family of the child. It allows the child to maintain familial and peer relationships and could be an important alternative for some families visiting the decision of whether to pursue guardianship or adoption. But as guardianship is a growing family law alternative, case law has yet to address all the issues that may arise. We will look at case law in further articles. While it is ruled in the best interests of each child, it may be that a child will have both types of parenting relationships. The emotional and social analyses will be unique to each set of circumstances.
Guardianship Advantages and Disadvantages
As beneficial as legal guardianship can be, it also has some drawbacks that must be considered. For example, whereas adoption results in the permanent severing of parental rights, guardianship allows for the possibility of the child’s biological parents re-entering their lives. Younger children might not completely understand the difference between adoption and guardianship, and if they think that one underlying reason for your decision to obtain guardianship instead of taking the adoption route is that their birth parents have a place in their life, they might feel rejected by you. Teenage children might become bitter about the situation, especially if their birth parents return. Another downside to guardianship is that most states require a separate court proceeding to terminate the guardianship. In this proceeding, the judge will determine whether the guardianship is still in the best interests of the minor child. More simply put , becoming a legal guardian of a child is not the same as adopting them, and there are many reasons why some people prefer one option over the other. On the other hand, there are certainly times for which permanent legal guardianship of a child is preferred to adoption. If you are a close friend or relative of the child, or if you have other minor children whom you want to protect from the effects of this arrangement, guardianship may be a better option for you. For some people, the wait to adopt a child is too long, and for those who feel themselves waiting on borrowed time, legal guardianship is an attractive alternative. In essence, you should consider permanent legal guardianship as an option if you’re interested in protecting your legal rights over the child’s physical custody without legally severing their relationship with their biological parents.
Adoption Advantages and Disadvantages
One of the main benefits of adoption over permanent legal guardianship is the permanency of the arrangement. Where a permanent guardianship can be terminated at any time, an adoption is permanent. Also, a wealth of legal rights and privileges become available to the child and adoptive parents through adoption that are not granted through a permanent guardianship. For example, the adopted child will inherit on their adoptive parents’ intestate estate. They can also be named as a beneficiary on a life insurance policy or pension benefits. An adopted child has the same right as a birth child to these entitlements, however, a child may not have the same legal rights with respect to a guardianship arrangement.
It may be more difficult to adopt than just appoint a guardian. If there is a parent who refuses to give up their parental rights, the adoption process may be hard fought. A permanent guardianship may a simpler way to facilitate the goal of creating a stable home for the child. Where there is a willing and/or adequate parent with some connection to the child, a guardianship may be preferable to adoption.
Like any other contract, a guardianship does not come with financial guarantees. Although there are government programs available for financial assistance where a family member agrees to assume the responsibility of acting as a permanent guardian, this does not relieve the responsibility for planning for the ongoing financial needs of the child. Adopting a child may improve options to secure funding and earn credits for employability programs. As a result, it may be easier to secure funds for children on various government programs if they are adopted.
The child may be resentful at being adopted. In some cases, they may even want to seek visitations with their biological parents. This may cause tension and conflict as the new parents struggle to explain to the child that it is not safe to be with their biological parents. There may be benefits to the child maintaining a connection with their birth parents, but where a child has been adopted, this is done in the context of a new family and social structure. In the case of a guardianship, the child is allowed to remain in the old social structure, which may be in their best interests.
When to Choose Guardianship and When to Choose Adoption
The process to become a permanent legal guardian or an adoptive parent is similar in many ways. However, the different terms describe a fundamentally different arrangement. While the ultimate decision must be based on what is best for the child, as well as what the family desires, there are unique aspects of each option that should be considered.
In many cases, a guardianship is the better option for someone who hopes to care for a child without taking on full parental responsibilities. This may be the case if the current parents are on the path to recovery from substance abuse issues, dealing with financial problems, or in another circumstance that will hopefully signficantly improve over time. If the family wants the flexibility to change course in the future or the child’s parents believe they will be able to fulfill their responsibilities again, guardianship may be the preferable option.
On the other hand, the adoption process can be an important step for some families who want to adopt but hope to gain some additional custody or do not meet other requirements necessary to gain clear custody. Adoption entails termination of parental rights, so everyone involved must be prepared for the permanent nature of the arrangement. If an agency or the current caregivers believe that the biological parents will not be able to recover from their situation, adoption may be in the child’s best interest as it places them in a more permanent space.
It is important to remember that these situations are unique to each family, so there is not one answer that works for every family. To determine whether guardianship or adoption is better in your particular case, you should carefully consider your family’s goals, the best interest of the child and other circumstances, and obtain legal advice from an experienced family law attorney.
Which Option Is Right for You?
As we have discussed, guardianship and adoption serve different needs in a child’s life. Guardianship can be temporary or permanent and does not sever parental rights, while adoption is a legally permanent relationship that ends the parent-child ties between a child and his or her biological family.
If you have questions about these two legal relationships and how they could enable you to provide a better life for a vulnerable minor child , we urge you to go over them with a skilled attorney. Your particular circumstances will determine whether guardianship or adoption is the right choice for your situation. An experienced lawyer will be able to advise you properly.