What is the Difference Between Adoption, Guardianship, and Custody?

January 10th, 2024
Posted By
Sarah M. Litowich
mom giving son a piggy back ride - adoption, guardianship, and custody concept
Adoption, guardianship, and custody are three concepts in family law that are often confused. However, they are three separate legal processes in Oregon that have very different legal effects on a parent-child relationship. Adoption: allows a non-biological parent to become a child’s legal parent with all of the rights and obligations that are available to biological parents and is permanent. Guardianship: allows a non-biological parent to make decisions about a child's living situation and daily needs, including school and medical decisions, and can be terminated. Custody: allows the person granted custody to make decisions about a child's living situation and daily needs, including school and medical decisions. Generally the child’s primary residence is with the person holding custody, and this can be modified. While the legal relationships are distinct, each of these processes result in giving an adult the authority to care for a child — and the obligation to ensure they have a stable environment in which they can thrive. Regardless of which avenue is pursued, the best interests of the child must always be first and foremost.

What are the Legal Effects of Adoption?

The act of adoption creates a permanent parent-child relationship between the child who is being adopted and their adoptive parent. Adoption legally terminates the child’s relationship with at least one of their biological parents. It gives the adoptive parent all the legal rights of a biological parent and allows the child to have the same inheritance rights as a biological child. In Oregon, a family member, a stepchild, or a non-biological child of any age can be adopted — the state also allows adult adoption (an adult is adopted by one or more other adults). Adoptions may be either open or closed. In contrast with a closed adoption, an open adoption allows the birth parents to have continuing contact with the adopted child. Once an adoption is finalized, the adoptive parents have the same rights, responsibilities, and obligations that they would with a biological child. This means providing for the child’s care and education, as well as financially supporting them.

What’s the Difference Between Adoption and Guardianship?

A guardianship allows someone other than the child’s biological parents to care for them and make decisions in the event the biological parents are unable to do so. This is not the same as adoption. With an adoption, the court terminates the biological parents’ rights and transfers them to the adoptive parents. With a guardianship, the child’s biological parents still retain their parental rights. Typically, the process for guardianship is much simpler than adoption — there is less paperwork, and a court hearing may not be required if the biological parents consent to the guardianship arrangement. Guardianships may be granted if the child’s biological parents are:
  • Unwilling to care for the child
  • Ill and unable to care for the child
  • Incarcerated
  • Suffering from serious substance abuse problems
Although a guardian has the responsibility of caring for a child’s welfare, they are not legally required to support the child from their own income. Unlike with adoption, a child’s biological parents are still obligated to financially support their child if a guardianship is in place. Significantly, guardianships over children are only a temporary caregiving situation while adoption is permanent.

What is the Difference Between Guardianship and Custody?

Guardianship and custody are both terms used to describe a legal relationship between a parent and child. However, legal guardianship usually means granting someone other than the child’s biological parent the right to care for them. Custody typically refers to the legal rights of biological parents who no longer live together. Critically, whether they were married or not, each biological parent has the right to foster a relationship with their child and the obligation to provide financial support. Custody identifies who will make major decisions for the child when it comes to where the child lives, education, and healthcare. Custody can be granted to a parent or some other person who has developed a parent a child relationship with a child. It can be joint or sole. “Sole”gives one parent or person the right to make major decisions and “joint” means that those major decisions are shared between two parents. Custody does not determine how much time a child spends with each parent or grant either parent the right to withhold a child from their other parent. In Oregon, in addition to deciding custody, the court or the parties (by agreement) will also establish a parenting plan that sets the amount of time and terms by which each parent is with the child.

Which Legal Process is Right for Your Situation?

The legal processes and effects of adoption, guardianship, and custody are all very different. It’s crucial to consider your specific circumstances to determine which option is in the best interests of the child. The avenue you pursue may also depend upon your current relationship with your child. For instance, if you are the child’s biological parent, you would be seeking custody, rather than a guardianship. If you are not the child’s biological parent, adoption or guardianship would be the legal options to consider. But it’s important to keep in mind that adoption is permanent and severs the legal rights of the biological parents. Guardianship is a temporary arrangement that keeps the biological parents’ rights intact. An experienced family law attorney can best advise you regarding each legal arrangement based on the facts of your case and the needs of the child.

Contact an Experienced Oregon Family Law Attorney

Understanding the differences between adoption, guardianship, and custody can be complex. It’s vital to have a skillful family law attorney on your side who can explain each process and help you determine which is best to pursue. Based in Salem, Litowich Law provides knowledgeable counsel and compassionate representation for a wide variety of family law matters, including those involving adoption, guardianship, and custody throughout Oregon. We welcome you to contact us for a consultation.
Categories: Adoption, Child Custody, Guardianship