What is the difference between guardianship and adoption? There are two key differences that have far-reaching consequences. First, adoption is permanent and guardianship is not quite permanent (even when called "permanent"). Second, in an adoption the birth parents become legal strangers to the child while the adoptive parents become the legal parents as if they had given birth to the child. In a guardianship, the birth parents still have parental rights and the guardian or guardians are not considered the child’s parents.
Legal Status and Decision Making
In an adoption, the birth parents have no rights or responsibilities. The adoptive parents have all rights and responsibilities that once belonged to the birth parents. For example, if the adoptive parents divorce, the family court will have to decide legal decision making, parenting time, and child support between the adoptive parents as if the child were their natural child. Adoption is a life-long, permanent relationship. The adoptive parent decides the child’s legal name, which is usually the adoptive parents’ name. The birth parents do not have the right to have any contact with the child. Therefore, the adoptive parents decide whether the birth parents will have contact with the child.
In a guardianship, the parents usually retain their parental rights. The guardian has the responsibility and right to the child’s care, custody, and supervision. The guardian acts under the juvenile court’s supervision, and must make regular reports to the court, unlike in an adoption. A guardianship is not permanent, and the juvenile court may transfer or terminate the guardianship. The parents may have visitation rights (unless the court orders otherwise) and may still make some decisions, such as religious training, but the guardian will make most other decisions, such as education, health, welfare, and most other decisions. The child will usually keep his or her name and the parents may ask the juvenile court to terminate or transfer the guardianship.
Death and Inheritance
In an adoption, the child (and the child’s descendants) has the same rights to inheritance as children naturally born to the parents. If the parents dies without a will, the adopted child and the adopted child’s children are treated as if the adopted child were born to the parents. If there is a valid will, the will establishes the adopted child’s inheritance rights just like children naturally born to the deceased. The child does not have the right to inherit from the birth parents and the birth parents do not have the right to inherit from the child (unless, of course, the birth parents have named the child as a beneficiary in a valid will or vice versa). Also, adoption assistance continues after the adoptive parents’ deaths or after the juvenile court terminates the adoptive parents’ rights.
In a guardianship, the child is not treated as the guardian’s child for inheritance purposes. The child is still the child of the parents. The child has no right of inheritance from the guardian unless through a valid will. Also, a guardianship subsidy ends upon the death or incapacity of the guardian. Finally, if the child dies, the parent has the rights to claim the body.
Adoption and Guardianship Lawyer
Thomas A. Morton is an Arizona adoption and guardianship lawyer. Adoptions and guardianships are one of the most rewarding areas of my practice because I am really helping a child.