Legal guardianship, adoption, custody — there is some confusion surrounding these terms and the differences between them. In fact, we often receive questions from prospective birth parents and hopeful adoptive families who wonder, “What is the difference between adoption and legal guardianship?”
Adoption and guardianship are both legal arrangements for the care and custody of children, but there are some important differences of legal guardianship vs. adoption. The biggest one is the time period for which the arrangement is effective; while adoption permanently places a child with a new family, guardianship is usually a temporary arrangement made by a child’s legal parents that places the child with a close friend or family member.
To help you further understand the difference between adoption and legal guardianship, we’ve outlined what you need to know here. However, it’s important to remember that these processes can be complex, and the specifics will vary based on your situation. If you have questions about guardianship vs. adoption in your individual circumstances, it’s best to talk to an experienced adoption attorney.
What are the similarities of guardianship and adoption?
Many people confuse adoption and guardianship because they share some similar characteristics. Most important of these is that both processes can accomplish the goal of providing a stable environment for a child.
Both arrangements give a parent responsibility for a child who is not biologically theirs. Adoptive parents and legal guardians are both responsible for meeting the basic needs of the child: loving and supporting them, making sure they are fed and clothed, etc.
However, the terms of guardianship vs. adoption vary greatly, as do the legal rights awarded to adoptive parents vs. guardians and the situations in which each solution is appropriate.
What is the difference between adoption and guardianship?
Both adoptive parents and legal guardians can provide the care, support and stability a child needs. However, the effects of each legal arrangement vary significantly. Here are some of the most important differences of adoption versus guardianship:
- Parental rights: Adoption terminates the biological or legal parents’ rights, while legal guardianship keeps the parents’ legal rights intact. In an adoption, the adoptive parents are awarded all legal parental rights, and birth parents cannot reclaim rights to their child once the adoption is finalized. However, in a legal guardianship, the biological/legal parents can terminate the guardianship at any time and reclaim custody of their child.
- Inheritance: Adoption secures inheritance rights for a child, while legal guardians must make a special provision in their will if they wish to pass along inheritance.
- Child support: Adoption ends any child support obligations for birth parents, while birth/legal parents may be required to financially support their child in a legal guardianship.
- Process: Adoption is typically a more involved legal process than the legal guardianship process.
- Permanence: Adoption is permanent, while legal guardianship is temporary.
Because of these differences, there are different scenarios in which each arrangement is the appropriate solution for a child.
Choosing Adoption vs. Guardianship for Your Child
If you are a struggling parent, you may be wondering whether guardianship or adoption is right for you and your child. Alternatively, if you are interested in caring for a child you love while his or her parents overcome certain challenges in their lives, you may be wondering whether you can adopt that child or become a legal guardian for them.
It is ultimately up to the child’s legal parents to choose adoption or guardianship. If you are a parent considering either option for your child, you may want to ask yourself the following:
- Does your child need a permanent or temporary solution? Will you be able to successfully parent your child in the near future? What types of changes will you need to make in order to be the best parent you can be?
- What type of relationship do you want to have with your child going forward? Do you want to be their custodial parent? Or would you prefer to have ongoing contact through an open adoption?
Remember, adoption and guardianship can both offer your child a stable, supportive environment. Whichever you choose, it takes strength and courage to make a plan for your child’s future. If you are interested in learning more about legal guardianship or adoption, contact an attorney near you for help. If you are considering making an adoption plan for your baby, you can also call 1-800-ADOPTION any time, for free and with no obligation to choose adoption.
Adopting a Child You Have Guardianship Of
If you currently have legal guardianship of a child you care about, you may be interested in establishing a more permanent parent-child relationship with him or her. You may be wondering, “Can I adopt a child I have guardianship of?”
This may be possible in certain cases, especially if the child’s legal parents are in favor of the adoption. If you are interested in adopting a child you have guardianship of, you should contact an adoption attorney to learn more about what’s possible in your circumstances.
What if the parents are against it and the child is the age of 14? Can she have a say in it?
Hi, Misti — Often, the rules regarding parent and minor consent will vary by state. We encourage you to look at your state adoption laws and speak to a local attorney for legal information in this situation.
What if Iv had full gaurdianship of my niece sence she was 3 days old and shes 5 month now, Father is incarcerated and mother is homeless. Can I adopt?
Hi, Eduardo — The only person who can answer this question will be an experienced adoption attorney in your state. Here is a list you might start with: https://adoptionart.org/find-an-attorney/attorney-directory/ Good luck!
What is best course of action for a 12 year old child whose domicile parent died and mother in unfit to care for him?
Hi, Wendy — We suggest you speak with a local family attorney for more information on your specific case. Good luck!
I have a 12 year old daughter. Her biological father has never been in the picture. I started dating someone when she was 5 and we have been together 7 years now. Married almost 1 year. My husband would like to become her legal guardian, in case something were to ever happen to me. Should we apply for a legal guardianship, or adoption?
Hi, Melissa — It almost sounds like a stepparent adoption would be the best course of action in this situation. You can read more about this process here: https://consideringadoption.com/adopting/types-of-adoption/what-is-stepparent-adoption However, we cannot offer legal advice, so we recommend you speak to a local adoption attorney for more guidance. Good luck!
I have permanent legal guardianship of two young girls. Their mother signed away her rights. Do I have the same legal rights now as I would if we adopted?
I’m a gay uncle who is married and found my niece in a house that is not supervised and is using drugs . my sister is living else where and visit her every three weeks. Can I adopt her knowing that she is 14 years old and in the state of California and I have a home in Vancouver Wa ?
Hi, Gilbert — This sounds like a complicated situation. If you have not already done so, you should start by contacting local authorities in California where your niece is living. You might start here: https://www.cdss.ca.gov/ The only person who can answer your question about adopting your niece will be an experienced adoption attorney in your state. Here is a list you might start with: https://adoptionart.org/find-an-attorney/attorney-directory/ Good luck!
I want to adopt my niece whom I am currently the guardian of the parents no longer have legal rights can I adopt her
Hi, Shari — This may be a possibility based on your situation; however, we encourage you to reach out to a local adoption attorney for legal guidance regarding your case. You can start your search for an attorney here: https://adoptionart.org/find-an-attorney/ Good luck!
My question is I adopted my husbands niece and I want her biological mother to get guardianship. Can I do that and how do I go about it
Hi, Althea — Legal processes vary by state, so we encourage you to reach out to a local adoption attorney for more information on this situation. You can start your search for an attorney here: https://adoptionart.org/find-an-attorney/ Good luck!
I let my daughters aunt adopt her when she was 5 years old. She now living with me. They are 60 and cant take her many paces, or handle her much anymore. They want to give me full custody back. How should i go about getting full custody through a lawyer? Adopt her back? Or file for full custody? Thanks
Hi, Savanna — We recommend you reach out to a local attorney for more information on your options. Because adoption and custody processes vary so much by state, a local attorney is the only one who can give you appropriate advice. You can start searching for an attorney here: https://adoptionart.org/find-an-attorney/ Good luck!
The article was helpful
what is the format of originating summons to the high court for guardianship application?
Hello — Guardianship legal processes can vary by state, so we encourage you to reach out to a local family law attorney for more information. Here is a list of legal professionals to help you get started: https://adoptionart.org/find-an-attorney/
I have a daughter who turns 3 this year, I have her grandparents guardianship and I just heard they want to adopt her. Can they do that legally without me being okay with it?
Hi, Cady — In most situations, a legal parent needs to give their consent for their parental rights to be terminated. However, there are exceptions based on your state law. We’d encourage you to speak with a local family attorney for more specific information on this topic. Here is a list of legal professionals to help you get started: https://adoptionart.org/find-an-attorney/
I have a 16 year old son that me and my ex wife have been legal guardians of since birth and we both view him as our son so much that the birth mother gave him our last name when he was born. How would we go about finally adopting him and what would the costs be to adopt someone that age
Hi, Monty — We’d encourage you to reach out to a local adoption attorney for more information on this process. Adoption laws vary by state and even by county, so we cannot advise you on your personal situation. Start your search for an experienced attorney here: https://adoptionart.org/find-an-attorney/ Good luck!
Hello, I’ve had my 3 year old niece in my custody for a year now. Her parents willingly surrendered her because they could not provide for her. She has been with me all year, her parents don’t want the responsibility but want to be known as her parents. She sees them maybe once a month and there is no other contact. I abide their needs and wishes when they have them because I don’t have guardianship but I want something more permanent for her. Since they clearly don’t want the responsibility and don’t make time. Any suggestions??
Hi, Sarah — Please reach out to a local adoption attorney for more information on your rights and the potential for guardianship in this situation. You can start searching for an attorney here: https://adoptionart.org/find-an-attorney/ Good luck!
We have legal guardianship of our granddaughter. She has been with us since birth and is now two. Her mother, our daughter just had her son (4 months) put in the foster care system die to her continued drug use. How complicated would it be to adopt our granddaughter now? I am sure our daughter would not consent, but it is obvious she cant and wont get clean to be a mother to her.
Hi, Waynette — Unfortunately, we aren’t familiar with the legalities of the foster care system, as our agency completes private domestic infant adoptions. We encourage you to reach out to a local family attorney or your Department of Family Services for more guidance on this matter. Good luck!
I have been raising my step granddaughter since she was 4 months old. I was married to her grandfather. When he passed away in 2008 I petitioned and was granted full, legal guardianship. She has extensive special needs, as well as health conditions. I manage all her needs from medical, academic, behavioral supports, advocating for her, etc. I have lived and raised her as my own. Attempts over the years at fostering some kind of relationship with her birth mother have failed miserably. Birth father is unknown. Have searched through DNA registries and have found relatives of bio dad, but they refuse to respond. Anyway, legal guardianship expired when she turned 18 last year. She will turn 19 in a few weeks. She is unable to fully care for herself or live on her own. To hold any employment at this time. She can not financially support herself. She receives SSI for her disability and has medical assistance. She can not drive. She can not manage her own healthcare needs. She has a below average IQ and great difficulty communicating. She struggles to our thoughts to words. She’s has no money or inheritance of any kind. We are her sole providers other than her monthly ssi. We have been trying to determine, with her input of what she wants, what would be best moving forward. Petitioning for guardianship of an incapacitated adult, or an adult adoption. I remarried in 2010 and my husband has pretty much been the only stable father figure and provider in her life. She has asked us to adopt her and change her last name to ours. If this is what she wants, is adoption of an adult possible? I don’t think guardianship alone is enough to secure protecting her interests, health, welfare, and provide for her, whereas adoption will allow her to feel a sense of permanency in our family. She is our daughter in every way, but she wants to be our legal child. We are more than happy to make her our legal child, although she already bid in every way. If she is over 18 does she need consent of her bio mom for us to adopt her?
Hi, Paula — Adult adoption is definitely possible, and parental consent is usually not necessary. You can learn more about the process here: https://consideringadoption.com/adopting/types-of-adoption/why-and-how-to-adopt-an-adult We encourage you to speak with a local adoption attorney to learn more about the process in your state and considering your unique circumstances. Good luck!
Hi Paula,
I am a naturalized citizen and in 2018 I became a guardian of 2 minors (16 years girl and 13 years old boy). They lost their father when the younger one was only 3 months and since then we have been helping with expenses. Now that they are older and need more assistance with school and guidance and because their mother cannot provide, we would like to bring them to US. What do we need to do. Can we just apply for immigrant visa? Please help.
Thank you
Hi, Sandra — We are not legal experts, so we cannot provide the answers you’re looking for. Please reach out to an immigration attorney for legal advice on your particular situation. Good luck!
I have guardianship of a 11 year old I’ve had her since 2 years old now her mother is trying to get her back does she have rights or can my child make the decision?
Hello — We are not legal experts, so we cannot provide legal advice for your situation. Please reach out to a local family law attorney for personalized guidance. You might start looking with this directory: https://adoptionart.org/find-an-attorney/attorney-directory/#!directory/map/ord=lnm
Is it possible to gain guardianship of my wife’s kids if the father is still alive
Hi, Larry — We cannot offer legal advice on your situation, so please reach out to a local adoption attorney for more information. Here’s a directory to get you started: https://adoptionart.org/find-an-attorney/attorney-directory/#!directory/map/ord=lnm Good luck!
Hi I have legal guardian of a child that I have had since birth and have been raising him like he is my son he is now 5yrs old and I want to adopt him he has had a lot of problems due to the fact that when he was born he had a lot of drugs in his system do to the biological using while she was pregnant we don’t know who the father is because she is a prostitute and she has no interest in stopping with prostitution or drugs there are 7 of these children that have all been taking from her by state so in order for me to fully adopt will I still have to have consent from her since she has never been in my babies life and never will be so is there other ways I can do the adoption with out her consent.
Hi, there — Adoption laws vary by state, so you’ll need to reach out to a local adoption attorney for more guidance on this matter. Here is a list to help you get started: https://adoptionart.org/find-an-attorney/attorney-directory/#!directory/map/ord=lnm
Hello, we are looking to adopt a child (or get legal guardianship) from Sri Lanka to the USA in about 3 years as the child will live overseas for awhile. We are seeking an international adoption lawyer advise, any recommendations please?
Hi, Janet — Here’s a directory to help you get started: https://adoptionart.org/find-an-attorney/attorney-directory/#!directory/map/ord=lnm Good luck!
We are considering adopting our niece whom we have Kafka guardianship of. The biological parents will not be happy about this and will fight the whole process. What should we do and what should we expect?
Hi, Tonya — Your best way forward with this situation is contacting a local adoption attorney. Adoption laws vary by state, so we cannot provide legal advice for your circumstances. You can start your search for an attorney here: https://adoptionart.org/find-an-attorney/ Good luck!
Hi,
My name is Zyion Thomas and I am in the permanency program. I’m 16 yrs old and I want to know what rights do I have when it comes to wanting to return back home to my biological mother. My mom has been taking care of me and have been providing for me while living in Harrisburg, Pa and I reside in Williamsport, Pa. All tho her rights were tool away from her, she has always been apart of my life. Because I am now 16 can I go to the courts and tell my situation so that they can consider letting me go?
Hi, Zyion — We are a domestic infant adoption agency, so we cannot provide legal advice for your situation. We encourage you to reach out to your personal caseworker or a local adoption attorney for more guidance in this situation. Good luck!
I Have the guardianship of a girl who is 4 years old, I have been her legal guardian two years ago, she doesn’t want to go to her mom, and I would like to adopt her
its possible
What would I have to do to give my mother temporary custody of my 9 mouth old?
Hi, Jeannie-
You’d need to reach out to an attorney. Here’s a directory that may help: https://www.adoptivefamilies.com/adoption-attorneys/
They may be able to help you set up a temporary guardianship. If you need to permanently place your baby with an adoptive family, we encourage you to call 1-800-236-7846.
Best of luck!
Hi I’m 26 and the temporary legal guardian of my little sister who is 16 her adoptive mother wants to sign over full guardianship and is even willing to sign her rights away, would I be able to adopt her if she signs those rights away?
In general, if a parent voluntarily terminates their legal rights (this must be done through an attorney, in accordance with state laws) then a minor would be eligible for adoption, yes. However, we strongly recommend consulting an adoption attorney. They’ll make sure that the adoption is 100% legally sound, and a possibility in your situation. Here’s a directory that may help: https://www.adoptivefamilies.com/adoption-attorneys/
Can I adopt a child who is currently in foster care, her legal guardians have her because she was removed from her biological parent by the state. The legal guardians however, have had her most of her life but don’t intend to legally adopt her.
My niece has lived with me since she 3. I was awarded permanent guardianship 6 years ago. Can I adopt her? She’s 11 now
Hello, I am confused about why adoptive parents are not guardians of their child. The child was adopted by her adoptive parents, and recently, the birth grandmother passed away. While doing the probate of her property we found out that in Texas the adopted granddaughter is still a heir. So far, o good. The grandmother had 4 children, and one of them also passed away and that’s why granddaughter was adopted. During the probate process, the Title company requested the guardian of the child sign all paperwork. However, adoptive parents claim they have all rights of the minor and there’s no need for them to go to court to be now their guardians. My question is exactly the same as adoptive parent, why adoptive parents are not guardians of their child? If she still a minor, and adoptive parents have the same rights as birth parents, is that really necessary?
Thank you
It’s very helpful to know that inheritance rights will also be included once a child has been adopted into a family. After trying for half a year, my husband and I recently found out that there are some complication in his reproductive system that will prevent us from having children. We are planning to consult social workers and an adoption attorney to more properly assess if it would be best for us to just opt for adoption.
I have had guardianship of my granddaughter since she was 3, in 2017, when I lost my daughter her mother to an asthma attack. It’s been 5 years now. Her father had not been in her life since she was an infant and he’s also passed away now. I want to adopt her with my son and daughter n law. In case anything happens to me she’ll be with my son and his family. We bought a new house together and were moving ASAP. Is adoption a better option for my situation?