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Guardianships and Adoptions

What is the difference between a guardianship and an adoption?
How can I get a guardianship?
How can I terminate a guardianship?
How can I adopt a child?

What is the difference between a guardianship and an adoption?

Both guardianships and adoptions permit a non-parent to take care of a child on a long-term basis. The primary difference between the two lies in the fact that adoptions are permanent and guardianship are not.

Parents are guardians of their minor children in that the parents have the natural responsibility to direct their childrens’ lives and to take care of their children. If, for some reason, a child is left without a parent who is fit, willing and able to serve as a guardian, the court must appoint someone to act as a guardian in the place of the parents. If some time later a parent becomes fit, willing and able to resume his or her role as guardian of the child, the parent can ask the court to terminate the guardianship.

Adoptions, on the other hand, are permanent. Adoption terminates all rights of the biological parents with respect to the children and treats the adoptive parents as the legal parents as if the children were born to the adoptive parents. Because adoption permanently deprives the biological parents of their parental rights, the court will more thorough investigate the suitability of the adoption.

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How can I get a guardianship?

In order to obtain a guardianship, you must first show that neither of the child’s parents are fit, willing and able to serve as guardian of the child. Oftentimes this might happen when a parent is out of the picture for some reason and the other recognizes that he or she can not take care of the child and asks a friend or relative for help. A parent can consent to a guardianship, but the parent must be willing to tell the court that he or she is unfit, unwilling or unable to act as guardian. The court will appoint a lawyer to represent the child. The child’s lawyer is called a “guardian ad litem.” The guardian ad litem will meet with the child and will want to meet with you as well.

If the court determines that the child is without a parent who is fit, willing and able to serve as a guardian, the court will then look to see whether you are able to serve as a guardian.

If there is some dispute as to whether a guardianship is necessary or who should be the guardian, the court will hear evidence from the parties and make a decision.

At Baker Legal Services, we can walk you through the process should you feel necessary to serve as a guardian over a child.

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How can I terminate a guardianship?

If you are the parent of a child who is under a guardianship with someone else, you can ask the court to terminate the guardianship. You will need to show the court that you are fit, willing and able to serve as guardian and also that terminating the guardianship is in the child’s best interest.

It would be a good idea to contemplate the reasons why the guardianship was entered in the first place. You will need to show that these reasons no longer exist. You should also be prepared to demonstrate how terminating the guardianship is in the child’s best interest; this fact will not be presumed by the judge.

If you would like to terminate a guardianship which exists over one of your children, contact Baker Legal Services and we can walk you through the process.

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How can I adopt a child?

The first thing to consider in adopting a child is the parental rights of the biological parents. An adoption will terminate these rights and the court will closely scrutinize the grounds for which these rights should be terminated. If the biological parents are willing to consent to the termination of their rights or if there exists some clear grounds to terminate a parent’s rights, then you should meet with an attorney. At Baker Legal Services, we can prepare written consents to termination for the parents to sign or we can go over the fault grounds for which the court would terminate the parent’s rights.

Before the court will hear the adoption, you must have lawful custody of the child for at least six months. This may not be an issue with foster-parent or stepparent adoptions, but in other situations you may need to obtain an order from the court to legally transfer custody of the child.

You will need to arrange for a home study to be conducted by a licensed social worker or other suitable person. A home study is an in-depth investigation into your household. You will also need to arrange for a post-placement assessment where a suitable person would evaluate your relationship with the child you want to adopt. At Baker Legal Services, we can help you obtain these reports and file them with the court. In foster and stepparent adoptions, you may not have to worry about the home study or the post-placement assessment, but in other adoptions you will be responsible for providing the court with these reports.

The court will also appoint an attorney to represent the child. The attorney is known as the “guardian ad litem” and is tasked with advocating the best interest of the child within the adoption process. The guardian ad litem will give his or her opinion to the court as to whether the adoption should be proceed.

When the court is satisfied that the biological parents’ rights should be terminated, that you would be an appropriate adoptive parent for the child you want to adopt, and after you have had lawful custody of the child for a period of six months or more, the court will hold a hearing to determine whether the adoption should take place.

There is a lot that goes into an adoption, but at Baker Legal Services we can walk you through the entire process from start to finish.

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