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Guardianship is Not Adoption

June 22, 2018

There seems to be some confusion out there about a parent’s rights to his or her child when someone else has guardianship over that child.  Guardianship and adoption are similar is some ways, as someone other than the biological parent, whether it be a family member or a family friend, takes over the parenting responsibilities over a child, including daily care and legal decision-making authority; but that is really where the similarities end.  Guardianship is not an adoption; the parent’s rights are not severed, and the guardian’s legal authority regarding the child, is not permanent.

 

In adoption, the biological parent ceases to be the legal parent, with someone else taking the that parent’s place.  The adoptive parent become the new legal parent, with all the same rights and responsibilities expected from a blood parent-child relationship. The biological parent loses all legal claim to the child; they can no longer demand to see/visit the child, pass along property to the child upon the parent’s death without a will, nor do they have any decision-making authority regarding medical, educational, or cultural upbringing, over the child.  Guardianship, however, is quite different.

 

A guardianship takes place when a parent is “unwilling”, “unable”, or “unfit” to continue to care for his or her child.  This assumption of the parental responsibilities is not a permanent one.  Sometimes a guardianship is only specified for a specific amount of time, like a single year; this type of guardianship is usually enacted for educational purposes; sometimes it is an indefinite period of time, which then continues until the child reaches adulthood, or is emancipated.  Whether limited or indefinite, guardianship is always considered temporary and can be reversed at any time; if the parent becomes capable of resuming his or her parenting responsibilities, through a Termination of Guardianship order.

 

Though a guardian becomes the child’s caretaker, he or she may not keep a parent from a child.  It is very common for guardians to assume they can deny all contact with a parent after they have taken guardianship of a child; they cannot.  Contact with a parent may become limited under Court orders depending on the parent’s prior actions towards the child, but that decision remains with the Court, not the individual guardians.  A guardian cannot simply make the decision to deny reasonable visitation between the parent and the child on his or her own.  

Additionally, for a guardianship to be legally enforceable, it must be ordered by the Court.  It is not enough for a parent to drop off a child with a neighbor or family member for an extended period of time; nor can a parent and presumed guardian sign a piece of paper in front of a notary and expect that to legally enforceable by the courts. While two people can form a contract by themselves in many situations, like selling a property, or creating a business agreement; you cannot change care and custody of a child from the legal parents without the Court’s involvement and approval.  (A quick note on notarized signatures; notarization only verifies that the people signing the documents are who they say they are, and the signatures are not forged; notarization does not in and of itself create an enforceable document.)  

 

You might be wondering at this point about how a guardianship, through a will, actually works; if a guardianship must go through the Courts to become official.  When a parent appoints a god-parent; assigns a guardian over a child through a will upon that parent’s death, or even a standby guardian should the parent merely become incapacitated; a guardianship does not yet exist.  Designating a guardian through a will does not create an automatic legal guardianship upon the parent’s death or incapacitation; rather, it informs the Court that the parents had a preference for a guardian over minor child; and it creates an immediate placement option while the parent’s estate goes through probate.  However, the guardianship will not become official until after the potential guardian applies for letters of appointment as a guardian with the Court.   

 

Sometimes a guardian may elect to adopt a child he or she has cared for after many years; but until that they do, the guardian does not have the same rights over the child as a parent does over a child.  It is important to remember; if you are a guardian or have placed your child under the care of a guardian, the parent’s rights have not been terminated.  The parent still has the ultimate decision-making authority over the child and the parent cannot be denied time with the his or her child, without a Court’s order.

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