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Adoption & Guardianship

What are the Differences Between Adoption & Guardianship?


Adoption Guardianship

Legal
Status

Birth parent's rights are voluntarily relinquished or involuntarily terminated.

Birth parent/s' rights may or may not be voluntarily relinquished or involuntarily terminated.

The adoptive parent is given all the rights and responsibilities that once belonged to the birth parent.

Guardian is given legal responsibility for the child and assumes the rights of care, custody, and supervision of the child.

Adoption is a permanent, lifelong, legal relationship

When married, either one or both spouses may be named guardian.

Two brothers pose for the camera

The birth parent retains "residual rights" when parental rights have not been relinquished or terminated. These rights include: visitation, choice of religion and the right to claim the body of a deceased child.

The court makes all decisions regarding the transfer of guardianship, but the birth parent/s can request that guardianship be taken away from the caregiver and that the child be returned to their care if parental rights have not been terminated.

Adoption

Guardianship

Decision
Making

All decisions are made by the adoptive parent.

Major decisions regarding school, medical treatment and consent for most other major life decisions are made by the guardian.

Birth parent/s retain important rights, e.g., choice of religion and visitation when parental rights have not been relinquished or terminated.

Adoption

Guardianship

Child's Legal
Name

The adoptive parent determines the child's legal name

Usually the child retains his/her own legal last name.

Adoption

Guardianship

Inheritance

An adopted child has all of the same rights as birth children when the adoptive parent does not have a will. Otherwise, inheritance rights are established through a valid will as they are for birth children.

The child has no rights of inheritance from the guardian unless the child has been included in the guardian's will.

Adoption

Guardianship

Consent of
the child

A child who is 10 years of age or older must consent to his/her own adoption, unless the court in the best interest of the minor dispenses with minor's consent.

A child who is 10 years of age or older must consent to his/her own guardianship

Adoption

Guardianship

Death of
Adoptive
Parent/
Guardian or
Termination
of Adoption/
Guardianship

A child adopted with adoption assistance remains eligible for adoption assistance when he/she is orphaned due to the death of his/her adoptive parent/s or when a court terminates the adoptive parent/s' parental rights. He or she can continue to receive adoption assistance if adopted by someone else.

A guardianship subsidy ends due to the death or incapacitation of his/her guardian/s. The child needs to re-enter state's custody to be eligible for further guardianship subsidy. OCS must be notified of the above.

Adoption

Guardianship

Returning a
Child to
OCS

An adoptive child would have to be found by the court to be abused, neglected or dependent in order to have OCS again assume legal responsibility for the child.

Both adoption and guardianship are evidence of strong commitments to children. The commitment entered into by adopting a child is one that lasts for a lifetime. Although guardianship legally ends when the child reaches adulthood, most legal guardians enter into this commitment intending it to be a lifetime relationship. Thus, adoption and guardianship are commitments to be taken seriously by caregivers.

Adoption

Guardianship

Financial
Assistance

The adoptive parent/s, whether receiving a subsidy or not, are financially responsible for the support of the child. Financial assistance is available for the adoption of many Department children. The adoption subsidy lasts until the child is 18.

A guardian, whether receiving a subsidy or not, is responsible financially for the child. Financial assistance is available for eligible children. The guardian is responsible for financially supporting the child until OCS stops the subsidy payment and the court vacates guardianship (whichever event happens last). If the birth parent/s' rights have not been terminated they can be held responsible to contribute to the financial support of the child. Guardianship subsidy lasts until the child is 18.

Adoption

Guardianship

Relationship
with the Birth
Parent/s

The adoptive parent has the right to determine if the child will have any relationship with the birth parents.

If the birth parent/s' rights have not been terminated, they have the right to visit the child unless a court orders no visits. The guardian will have input into how the visits are structured, but can not prevent visits from occurring. If the guardian and the parent/s can not work out visitation scheduling one of the parties may wish to seek court involvement. Birth parent/s also have the right to petition the court to have the child returned to them.