What is the Difference Between Guardianship and Adoption?
By: M. Scott Gordon
If you are seeking to become a legal guardian for the minor child of a close family member, we know that you probably have many questions about guardianship under Illinois law. There are many different legal relationships that an adult in Chicago can have to a minor child, and one of them is guardianship. But this is not the only legal relationship that allows an adult to make important decisions about a child’s upbringing and day-to-day well-being.
The other common legal statuses under Illinois law that give adults decision-making responsibilities for a child are adoption and foster care. Foster care, however, is distinct from guardianship and adoption in that it is what the Illinois Department of Children & Family Services refers to as “a temporary safe haven for children who are at serious risk of harm.” In other words, foster care and becoming a foster parent is necessarily a temporary legal status. Adoption and guardianship, differently, are long-term – and adoption is permanent. What is the difference, then, between guardianship and adoption? There are a couple of major differences between the two that we will discuss here.
Before we explain the differences between adoption and guardianship, it is important to understand how the law defines a guardianship. A guardian is someone who is appointed by the court to provide care for a child and to have legal responsibilities for the child. A guardian cannot simply give up guardianship. Instead, she or he can only cease being the guardian if the child’s parent is again able to care for the child, another person is able to become the guardian, the child turns 18 years old (and thus becomes a legal adult), or the Court terminates the guardianship.
In other words, guardians take on the role of a legal parent for most situations.
A guardianship sounds a lot like an adoption, right? The first major difference between a guardianship and an adoption concerns the rights of the birth parent or legal parent. When a person legally adopts a child, that person becomes the child’s new legal parent. As such, the adoptive parent has all of the rights and responsibilities of a legal parent, and the birth parents’ rights are terminated; they cannot try to regain parental rights once the birth parent again becomes able to care for the child. Because the birth parents’ rights are terminated, the adoptive parent becomes the legal parent of the child.
Differently, a guardianship is a legal role that can change when the birth parent (or otherwise legal parent) becomes able to take care of the child again. While the guardian does take on the role of a legal parent in many capacities during the guardianship, that can change when the legal parent comes back into the picture.
Guardianship and adoption are also very different in terms of their duration. A guardianship typically lasts only until the child turns 18, and it can be dissolved in many situations while the child is still a minor (if, for instance, the legal parent petitions to regain rights). In other words, a guardianship is imagined as temporary.
Adoption, however, is a permanent role. The relationship between adoptive parent and child does not end when the child turns 18, but rather continues throughout the child’s life—even once that child enters adulthood.
In Illinois, the opportunity to become a guardian is open to individuals who meet specific criteria aimed at ensuring the welfare of the child. To qualify, you must:
When it comes to adoption, the requirements are quite similar, and it’s noteworthy that you do not need to be married to adopt. Illinois embraces diversity by allowing single individuals, married couples, and same-sex couples to provide loving homes to children in need. The court plays a pivotal role in assessing your ability to create a stable and nurturing environment for the child.
The process of establishing guardianship begins with filing a petition in the appropriate circuit court located in the county where the child resides. The court prioritizes the child’s best interests and may appoint a guardian ad litem—an objective representative—to advocate for the child’s needs throughout the process. Guardianship can be granted if both biological parents consent to the arrangement or if the court finds that they are unable to provide adequate care for the child. Once appointed, the guardian is required to report to the court on a regular basis and may need to seek court approval for major decisions affecting the child’s welfare.
Finalizing an adoption is a comprehensive process that demands careful consideration and several crucial steps:
1. Termination of Parental Rights – This step can occur voluntarily, through an agreement by the biological parents, or through legal proceedings where the court terminates parental rights due to unfitness or inability to care for the child.
2. Home Study – A licensed agency conducts a thorough evaluation of the adoptive home, assessing the living environment and the prospective parents’ readiness to welcome a child into their lives.
3. Court Hearing – During a formal hearing, a judge examines the details of the case, ensuring that the adoption aligns with the best interests of the child.
4. Final Decree – If the judge approves the adoption, a final decree is issued, granting the adoptive parents full legal rights and responsibilities towards the child. Importantly, once the adoption is finalized, there is no ongoing oversight from the court, and the child enjoys full inheritance rights from their new adoptive parents.
The dynamics of guardianship allow for some flexibility; it can be reversed if the biological parents petition the court and present compelling evidence demonstrating their fitness to resume care for their child. Additionally, the court may revoke guardianship if the guardian faces challenges in meeting their responsibilities. In contrast, adoption is a definitive and permanent commitment. Once an adoption is finalized, biological parents cannot reclaim parental rights, and the adoptive parents assume lifelong responsibilities for the child’s upbringing.
Yes, financial assistance is available to support guardians and adoptive families in Illinois. Guardians caring for children through the Illinois Department of Children and Family Services (DCFS) may receive both financial and non-financial support, which can alleviate some of the burdens associated with raising a child. Adoptive families may also qualify for subsidies, particularly if the child has special needs, helping to cover essential expenses such as medical care, educational costs, and daily living expenses to ensure that every child can thrive in their new home.
The choice between guardianship and adoption often depends on the specific circumstances surrounding the child and their birth family. Guardianship may be more suitable in situations where:
Conversely, adoption is typically the preferred route when:
Both guardianship and adoption serve vital roles in protecting children and providing them with loving homes. Understanding the legal distinctions and long-term implications is essential for families making these life-changing decisions. Illinois offers resources through DCFS and legal aid organizations to guide families through the process.
Do you have questions about guardianship? Our Chicago guardianship lawyer can speak with you today. Contact Gordon & Perlut, LLC for more information at 312-360-0250.