What's the Difference Between Guardianship and Adoption?
The short answer is: a guardianship is by nature temporary, but an adoption is permanent. I will explain this in more detail below.
Many clients ask about the difference between an adoption and a guardianship. While both adoptions and guardianships involve granting custody to a non-parent, there are important differences.
1. A guardianship is temporary, but an adoption is permanent.
A person obtains a guardianship over a minor child when the biological parents are unfit. If at any time the parent regains his or her fitness, the court may remove the guardianship. Okla. Stat. tit. 30 § 4-804 says, “The guardian of an incapacitated or partially incapacitated person or minor may be discharged by the court when it appears to the court, on the application of the ward or otherwise, that the guardianship is no longer necessary.”
There are provisions in the law that provide for what the law calls a “permanent guardianship.” However, this is a misnomer, because a permanent guardianship is not really permanent. Okla. Stat. tit. 10A § 1-4-711(A) says, “An order for modification or termination of the permanent guardianship may be entered … based on a finding that … the parent of the child is presently able and willing to care for the child.”
An adoption, on the other hand, is by nature permanent. Okla. Stat. tit. 10 § 7505-7.2 says:
“1. When an interlocutory or final decree of adoption has been rendered, a decree terminating parental rights cannot be challenged on any ground, either by a direct or a collateral attack, more than three (3) months after its rendition. The minority of the natural parent shall not operate to prevent this time limit from running; and
2. No adoption may be challenged on any ground either by a direct or collateral attack more than three (3) months after the entry of the final adoption decree regardless of whether the decree is void or voidable, and the minority or incompetence of the natural parent shall not operate to prevent this time limit from running.”
The goal of a guardianship is to try to rehabilitate the natural parent, so that the natural parent may improve her life, and again regain parental fitness. Courts often prefer to terminate guardianships when a parent has shown that she is not fit.
The situation is somewhat different for adult guardianships vs. adult adoptions. A court grants an adult guardianship when an adult is incapacitated and unable to care for himself. An adult guardianship, like the guardianship of a minor, is by nature temporary, and may be terminated if the adult regains his competence.
There is no provision in the Oklahoma statutes for terminating an adult adoption. However, the Oklahoma Supreme Court recently held that if an adoptive parent, and the adopted adult, mutually agree to terminate an adult adoption, the adoption is to be terminated.
2. In an adoption, the adoptive parent becomes vested with all the rights of the parent, and the biological parent’s rights are terminated. In a guardianship, the biological parent still retains parental rights, and may be allowed visitation.
When a court finalizes an adoption, the adoptive parent has the same rights as a birth parent does. The court changes the child’s name to that of the adoptive parent, and orders that the adoptive parents’ names be listed as the child’s parents on the birth certificate. The court terminates the biological parent’s rights, and the biological parent has no more rights over the child than a stranger does. In an adoption, the court is allowed to enter an order allowing the birth parent to have contact with the child during the pendency of an adoption. However, there is no provision allowing the court to order contact with the birth parent after an adoption is finalized. Some adoptive parents do allow their child to have contact with the birth parent, but that is entirely in the discretion of the adoptive parent. (However, under certain circumstances, a court may give visitation rights to the biological grandparent of an adopted child.)
A guardianship is quite different. In a guardianship, the court does not terminate parental rights. The biological parent is still the legal parent. The court does not change the child’s name or the child’s birth certificate. In a guardianship, the court will usually allow visitation with the biological parent.
3. A court may grant a guardianship over a minor any time the court finds that the biological parents are unfit. However, a court may only grant an adoption if the birth parent consents, or under very limited circumstances.
The circumstances, under which a court may grant an adoption without consent, are found here. If these circumstances do not exist, you cannot adopt a child without a parent’s consent, even if the parents are unfit. I explain adoption without consent in an earlier blog post.
Similarities between adoptions and guardianships
Adoptions and guardianships both involve granting custody to a non-parent. The Supreme Court has held that a parent has a constitutional right to custody of his or her child. Therefore, Oklahoma law says that a court may grant custody to a non-parent only if both parents are “affirmatively unfit.” Thus, if you want to gain custody of a child that is not your own, you can’t just show that you would be better at taking care of the child than the parent would. You must show that the parent is unfit.
This is different from divorce cases, where the court decides custody based on the best interests of the child. Because a divorce case is between two parents, a parent need not show that the other parent is unfit to gain custody of a child in a divorce case.
Another similarity between adoptions and guardianships is that, if the child is Indian, both adoptions and guardianships are subject to the Indian Child Welfare Act (ICWA). ICWA is very complicated, but ICWA requires that if you seek to adopt or gain guardianship of an Indian child, you must notify the child’s tribe and the Bureau of Indian Affairs. The tribe may intervene in the case and seek to transfer the case to tribal court. ICWA applies whenever the child is eligible for membership in an Indian tribe, and is the biological child of an Indian tribe member. ICWA applied even if the child does not have a CDIB card. Divorce cases are not subject to ICWA.
To read the federal Indian Child Welfare Act, click here.
To read the Oklahoma state Indian Child Welfare Act, click here.
Are you considering an adoption or guardianship? Contact the Persaud Law Office.
The Persaud Law Office had represented many clients in adoption and guardianship cases. If you are interested in adopting a child, or seeking guardianship, or if you want to know which option is best for you, contact us today.