What Are the Differences Between an Adoption and Minor Guardianship?

Overview of Legal Options for Long-Term Care of a Child

If you have custody/are taking care of a child and there is no biological parent involved (and no state involvement), a question commonly asked is what you can do long term to care for the child. Typically, at this point in the process custody looks like either having custody informally (without a court order), or having custody through a non-parent custody action or an existing minor guardianship action. You could have custody of your grandchild, nephew/niece, godson, cousin, your child’s friend, a friend’s child, etc. After the initial transition is handled/the child is transferred to your care and things settle down, “What should we file to care for this child long term?” is generally the question posed, and a person’s end goals are usually the deciding factor. Adoption and minor guardianship actions are two very different processes, and it is important to explore both options if you are in this situation.

What does an adoption look like, and what differences make it a good option?

You might consider adoption in a situation where there is no parent willing or able to parent the child, and it’s likely been that way for a long time. An adoption action is broken up into two parts: a termination of parental rights and adoption of the child. The parent(s) whose rights are being terminated is entitled to an attorney in the termination process. The Court is looking at whether a parent has historically parented the child, not whether a parent has the capacity to care for the child in the future. At the end of the termination process, a biological parent’s parental rights can be terminated and they no longer have legal rights to the child. At the end of an adoption action, if you are found to be a willing, viable, and safe placement option for the child, final orders are entered reflecting that you are the legal parent of the child, and the child’s birth certificate can be changed to reflect that (including a name change for the child, if you desire). The biological parents do not have any legal rights, so there is no visitation schedule put in place and no child support is exchanged. The child is legally yours, with the ability to inherit from you and with rights that any child would have with a biological parent.

If you want custody of the child long term, with no involvement of the biological parents and a bit more certainty of that not changing in the future, an adoption may be the way to go. In general the Court is looking for stability for children, so this is a good option if stability long term is an important factor for you. You must be prepared to take on the long-term responsibility of having a child, and understand you will not receive any support from the biological parents to parent or care for the child financially, or otherwise. The child is yours at the end of the day, which would not be the case in a minor guardianship action.

In the event that the biological parents’ rights are not terminated by the Court, the adoption action is dismissed and the only option at that point would be to file a minor guardianship action.

What does a minor guardianship look like, and what differences make it a good option?

In a minor guardianship action, again there is no parent willing or able to parent a child, but it is likely a newer development in the child’s life. There is no timeline for when a minor guardianship action needs to be filed. See blog post by Anna K. Russo with more specific information on what the standard is and what filing looks like. (https://navigatelawgroup.com/how-do-i-file-for-minor-guardianship-in-clark-county-washington/). The parent(s) whose rights are being terminated is entitled to an attorney, and the Court’s end goal is to eventually reunite the child with their biological parents. At the end of a minor guardianship action, if you are awarded legal guardianship of the child, final orders are entered reflecting that you are the guardian of the child and the biological parents generally have a visitation schedule and must pay child support. If there is a change later down the line, the biological parents are able to request that the minor guardianship be reviewed and potentially terminated, with the child being returned to them. A guardian can also choose to no longer be a guardian, and the Court can appoint someone else. One thing to note is that minor guardianship is a newer term with a newer statute, and cases like this used to be called non-parental custody actions with a slightly different standard. Any non-parent custody orders previously entered needing to be addressed again will require that the parties convert the non-parental custody action to a minor guardianship action and follow the minor guardianship statute.

If you want custody of the child, but believe the biological parents will turn things around and be able to parent in the future, or you don’t want to have the long-term responsibility of having a child be legally your own, a minor guardianship may be the way to go. You will be legally entitled to child support from the biological parents, and the door will technically always be open for them to ask for the child to be returned to them. You must be prepared to facilitate visitation and be under the ongoing jurisdiction of the Court’s orders in the minor guardianship action. The child is not yours at the end of the day, which would not be the case in an adoption.

In the event you decide to move forward with a minor guardianship action first and obtain final orders reflecting you as the guardian of the minor child, you can always file an adoption action later down the line if that becomes the better option. You are not precluded/prohibited from filing an adoption if you file a minor guardianship action first.

How can a family law attorney in Vancouver, Washington, help?

Making the choice between pursuing an adoption or minor guardianship is a tough one. There are pros and cons to both, and it really depends on what your end goals are with having custody of the child. Since the decision is so important, I recommend you speak with an attorney before moving forward with either option, even if you want to complete it on your own. I have helped a number of people make this decision in my career, and I’d be happy to speak with you about yours.