Many people confuse adoption and guardianship because they share some similar characteristics. Most important of these is that both processes have the same goal: providing a stable environment for a child.
Adoptive parents and legal guardians are both responsible for meeting the basic needs of the child, loving and supporting them, making sure they are fed and clothed, etc.
Adoption and guardianship are both legal arrangements for the care and custody of children, but there are some important differences between adoption and guardianship of a child.
The biggest difference between adoption and guardianship may be the time period for which the arrangement is effective; while adoption permanently places a child with a new family, guardianship is usually a temporary arrangement that places the child with a close friend or family member.
What is the Difference Between Adoption and Guardianship of a Child in California?
It is important to remember that both of these processes can be complex, and the specifics will vary based on the specific circumstances of each case. Only an experienced adoption attorney can advise you based on your specific situation, however, we have compiled an outline of the differences between adoption and guardianship to help you understand the basics.
Adoption of a Child in California
Adoption is the legal process of establishing a legal parent-child relationship when the adopting parent is not the child’s biological or birth parent. Adoptions can occur through relinquishment, termination of parental rights, or consent to adoption by a birth parent. Adoption severs the previous legal parent-child relationship and creates a new legal parent-child relationship between the child and adoptive parent.
Once the adoption process is final, the adoptive parent(s) have all the legal rights, duties, and responsibilities of any other biological or natural parent. That new parent-child relationship is permanent and is exactly the same as that of a birth family under the law, complete with a new birth certificate.
Guardianship of a Child in California
Guardianship is a temporary caregiving situation for a child when a person is responsible for the care and well-being of a child and has the legal authority to consent on behalf of a child. Legal guardianships can give guardians custody of a child until they are 18 years old; however, the child’s parents maintain their parental rights. However, courts overturn guardianship only if it is determined the guardian is no longer capable of caring for the child or maintaining their safety.
A legal guardian cannot pass along their own inheritance to the child in their custody unless a special provision is made in their will.
A legal guardian may be a grandparent, foster parent, aunt or uncle, sibling, friend of the family, step-parent, or someone else who knows the child. Being appointed as a guardian gives that guardian all the rights and responsibilities that a biological parent would have.
Generally, a guardian can only be appointed for a minor (child under 18 years of age).
Legal Guardians vs. Adoptive Parents
Both adoptive parents and legal guardians can provide the care, support and stability a child needs. However, the effects of each legal arrangement vary significantly.
In a guardianship, the court gives the guardian legal custody of a child, but the guardian does not adopt the child. The guardianship may last until the child turns eighteen (18) years old or the court may terminate the guardianship and return the child to the parents or appoint a new guardian. When someone becomes a child’s legal guardian, the biological parents retain their parental rights and can request visitation with their child.
The guardianship can be terminated when the parent’s situation improves and the biological parent shows they can care for their child. The court can also oversee the appointed guardian by supervising the guardianship, as well.
However, in an adoption, the parents lose parental rights to the child forever. They don’t have rights to visitation or to have any type of relationship with the child. Parents can’t get those rights back and adoptive families aren’t supervised by the courts.
Because of these differences, there are different scenarios in which each arrangement is the appropriate solution for a child.
Adopting as a Legal Guardian in California
If you currently have legal guardianship of a child you care about, you may be interested in establishing a more permanent parent-child relationship with him or her. You may be wondering if you can adopt the child you have a guardianship over. A person who is a legal guardian can apply to adopt the child under guardianship.
One or both of the child’s biological parents can sign an independent adoption consent or an agency relinquishment if the parent agrees with the adoption plan.
If one or both of the parents object to the adoption, the guardian can request that the family court involuntarily terminate parental rights for abandonment, conviction of a serious felony or other good cause.
In California, termination of parental rights also may be granted if the child has been out of the parents’ custody for two or more years, and the court finds that the adoption is in the best interest of the child.
In every case, the guardian must obtain a home study according to the type of adoption (independent or agency) being pursued.
If the non-consenting parent contests the termination, the adoptive family must hire and pay for private legal counsel to pursue the matter.
California’s family law procedures are complex and trying to navigate them without help of a California family lawyer can be frustrating. If you have questions about family law procedures, contact our accomplished and dedicated family law and probate lawyers by calling (844) 4-TALKOV (825568) or contact us online for a free consultation.
Our knowledgeable family law attorney, Colleen Talkov, can also help if you have questions about any of the following:
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