Guardianship versus Adoption: What’s the Difference?

Adults hoping to raise a non-biological child can either adopt or seek guardianship. Both are attractive options, depending on your circumstances, but they differ greatly. In South Carolina, many parents act as guardians through the foster care system. Ultimately, they may choose to adopt the child who has been in their care. Still, other parents prefer to go straight to adoption and skip the fostering step, which is an option as well.

We should note at the outset that most guardianship cases in South Carolina involve guardianship of an adult who cannot take care of themselves, e.g., an elderly person with dementia or Alzheimer’s. But this article will deal with guardianship of minors and compare it to the adoption of a child.

Please contact Surasky Law Firm if you have questions about whether to seek guardianship of your child. Our Aiken, SC family law attorney is eager to assist anyone. In addition to legal advice, we can coordinate with the state and represent you in the legal process.

What’s Similar Between Guardianship vs. Adoption?

Guardianship and adoption are very similar in that they are both pathways for providing a child with a home. When you adopt a child, you are responsible for their daily needs. The same is true of a guardian. The child will live with you, along with any biological children that you have.

In addition to providing shelter, food, and medical care, you will also have the legal right to make certain decisions for the child. For example, if the child wants to participate in an after-school activity, you probably need to sign a form to grant permission. The same is true if the child is seeking medical care.

You are also legally responsible for the child, which might come into play if the child ends up hurting someone else. Parents sometimes face lawsuits for neglecting to take care of their child. A legal guardian could also face the same consequences.

Major Differences Between Guardianship and Adoption

Adoption and guardianship also have some differences. Let’s summarize them. Guardianship of a minor is temporary. At most, you are the legal guardian until the child reaches adulthood, which is 18 years of age. At that point, you have no legal relationship with the child, although you could obviously choose to stay in each other’s lives if you wanted.

Adoption makes you the child’s legal parent even when they reach adulthood. It’s the same as if you were the biological parent.

Why does being the legal parent matter when your child is an adult? For one thing, you might need to become your child’s guardian if they are unable to take care of themselves due to an accident or illness. Similarly, any adoptive child will have inheritance rights if you die without a will. To leave anything to someone you raised as a guardian, you will need to leave them assets as part of your estate plan.

Your relationship with the biological parents is also different. When you adopt, a court will have terminated their parental rights. They have no right to even see the child after that point.

Things are different with a guardianship. A judge retains power over your legal relationship with the child. Parents can often terminate the legal guardianship on their own to get their children back, or the judge will agree to a parental request to terminate the guardianship.

Legal Complexity of Adoption versus Guardianship

Adoption and guardianship differ in terms of complexity. Generally, an adoption is more complicated. If you choose to adopt internationally, the process is lengthy and has pitfalls. You will probably need to visit a foreign country, perhaps more than once, before you can bring the child back to South Carolina.

Even domestic adoption could require more time and money. Working with an attorney is important to make sure you check off all the right boxes.

By contrast, a guardianship usually requires less paperwork. If you foster a child or participate in kinship care, then the state will handle most of the legal process. Prospective legal guardians will probably need to go to court at least once, but you can complete the process faster.

Which Option is Right for You?

Often, circumstances dictate whether to seek adoption or legal guardianship. For example, you might know of a child who is in a difficult situation. One parent might be absent, and the other is strung out on drugs or struggling with a mental health condition. You want to help.

In that case, guardianship is probably the answer. You can take care of the child while one or both parents sort themselves out, and they can get their children back when they are on firmer footing. You can talk with the parents about whether they are interested in you serving as a guardian.

Adoption is usually the best bet if you want to raise a child permanently. Most adoption involves seeking out a child to adopt. Adoption agencies often connect birth mothers with prospective adoptive parents. Alternatively, you might know of a pregnant woman who does not want to raise the child, in which case you might go forward with a private adoption.

If a child is older, then adoption typically follows a spell as a foster parent. The state is usually involved when parents can’t raise their older children, and you can work with the Department of Social Services to secure placement.

If the child is a relative—say a niece or nephew—then kinship care is an option. In fact, the state probably prefers that relatives raise a child. Kinship care is also possible even if you are not a blood relation but have had a special relationship with the child.

Call Us with Your Questions

Parenting a child has many rewards, and nothing is more important than raising a child who needs a loving home. Surasky Law is happy to provide legal services to adults hoping to keep guardianship of their child. Please call our firm to find out more.