People occasionally call our office when they are thinking about taking someone else’s child into their home, and ask whether they should seek guardianship or be looking to adopt the child. Following is a list of some things to consider at the outset, in making the decision.
1. First and most fundamental, do the parties involved intend the new care-taking of the child to be a permanent arrangement, or only of temporary—although indefinite—duration?
Adoption establishes a new parent-child relationship and requires a permanent termination of the rights of the birth parents, or (in step-parent adoptions) the non-custodial parent. By contrast, the rights of the birth parents are only suspended for the duration of a guardianship and the door remains open to have the parents’ rights reinstated.
2. Does a required legal basis exist, to seek either guardianship or adoption?
A court cannot grant a request for guardianship or adoption merely because it believes the petitioners would be better care-takers for a child; in other words, the “best interests” of the child is not enough. The law considers a parent’s right to have the care and custody of his or her child to be of primary importance. Therefore, a court may grant guardianship over a child to a non-parent only if one of several limited statutory grounds is shown to exist, such as the death, disappearance or imprisonment of the child’s parents, or the parents permitting the child to reside with another person without providing that person with legal authority for the minor’s care and maintenance. Similarly, a court will not permit a non-parent to adopt a child unless it first determines the child is “available” to be adopted, i.e. that the child’s parents will voluntarily consent to the adoption and the release or termination of their parental rights, or (for a proposed step-parent adoption) there is a clear history of non-support and non-communication by a non-custodial parent for a period of 2 years or longer.
3. What circumstances exist concerning the child’s parents? Are the parents married to each other? Living or deceased? Are their identities and whereabouts known? Has the father of an out-of-wedlock child been legally established? Will the parents be cooperative or combative?
The legal parents of a child who is the subject of a guardianship or adoption petition must be properly notified of the court proceeding. This is a “due process” right, because the proceeding may result in the suspension or permanent termination, respectively, of their parental rights. In an adoption proceeding, the court will even require the identification and notification of a “putative” father, i.e. a child’s birth father who has not been legally established as father, and the court must make a finding that specified statutory grounds exist before it can enter an order terminating the man’s rights as parent.
4. Financial costs may be a consideration—the cost of the legal proceeding, and on-going expenses of caring for the child to both the current parents and to the prospective guardian(s) or adoptive parents.
Legal proceedings require the payment of filing fees, other court costs, and attorney fees. Parents who give a “limited” guardianship over their child to someone else are required to submit a “limited guardianship placement plan” for court approval, which must detail their on-going obligations for financial support and contacts with their child while the guardianship is in place. Home studies or preplacement assessments are required in adoption cases (which involve extensive fact reporting, fingerprinting and criminal record checks, doctor examinations, etc.), costing hundreds or even thousands of dollars. Guardians must understand and willingly accept the multitude of parental-type responsibilities they are assuming for the care and upbringing of the child who is their ward. Adoptive parents must understand that, once an adoption is finalized, their parental responsibilities toward the child, both financial and personal, are permanent and will extend at least until the child reaches age 18, even if a formerly sweet youngster becomes an unruly and difficult teenager.