The Legal Differences Between Guardianship Vs. Adoption Explained

Maybe you’re thinking of adopting a child or taking guardianship of one. Perhaps you’ve remarried and would like to adopt your spouse’s child or have a family member who can no longer care for their child, for whom you’d like to step in and meet the need. If so, take note that guardianship and adoption are similar in some ways but very different in others.

Learn the differences between guardianship vs. adoption below. If you need assistance with either process or advice on what to avoid, call our divorce lawyers in Phoenix, AZ.

What Is Adoption and How Does It Work?

The adoption process legally terminates a child’s relationship with one or more biological parents. The act creates a permanent legal relationship between the child and their adoptive parent. That means the adoptive parent has all the same legal rights as the biological parent did, such as being able to:

• Choose the child’s name
• Make medical decisions for the child
• Decide where the child will go to school
• Determine important life decisions for the child

Looking a little closer reveals that adoptions can be either open or closed. In an open adoption, the child will maintain contact with their birth parent(s). If the adoption is closed, the opposite is true.

Since life is complicated, what happens if an adoptive married couple divorces? The law requires that they make a child custody agreement, just as they would with a biological child – deciding on parenting time, child support, and so on.

In Arizona, family law firms like Lincoln & Wenk, PLLC, also cover cases of adult adoption (of individuals over age 18). One legal reason for adult adoption is that the adopted person inherits property from their adoptive parents. The arrangement is helpful when a person does not have the mental or physical capacity to care for themselves, for example.

What Is Guardianship and When Is It Necessary?

Guardianship vs. adoption: How are they different?

Guardianship is temporary, as opposed to adoption, which is permanent. A guardianship is more a matter of suspending the biological parent’s decision-making rights until a court sees fit to restore them. In that way, guardians are responsible for making major decisions related to the minor’s life and care.

Guardians can decide where the child lives and goes to school, for instance. They are also responsible for the child’s medical treatment and have the ability to request child support from the minor’s parents. Guardians should only use this money for the child’s needs and keep it separate from personal funds, as Arizona’s family courts are very strict on this matter.

Guardianship may be necessary if the child’s parent does not have the physical or mental capability to care for them. For example, the court might assign a guardian if a child’s parent is seriously ill or incarcerated. Guardianship can also be involuntary (court-ordered) or voluntary, such as in cases like these:

• Going through a tumultuous divorce
• Cannot properly care for the child
• Seriously ill and too unwell to care for their child
• Need to temporarily move to another state or country for work and do not want to upset the child’s established routine

As you can see, the two legal arrangements can look quite similar at times.

Guardianship vs. Adoption: Key Differences

What are the main differences between adoption and guardianship?

	Adoption	Guardianship
Legal decision-making	Adoptive parents have the legal right to make all decisions for the adopted child.	Guardians have the right to make the majority of decisions. The child’s parent may retain the right to make certain choices.
Legal status	Adoption establishes a permanent relationship between the adoptive parent and the child.	Guardianship is a temporary arrangement.
Child’s name	In an adoption, the child usually takes the adoptive parent’s last name.	No change.
Inheritance	Adopted children have the legal right to inherit property when their adoptive parent(s) pass away.	In a guardianship, the child has no right to inherit property from the guardian. The guardian could explicitly pass property to them through their will.

The Adoption Process in Arizona

If you’d like to adopt a child, whether they’re your spouse’s child from a former marriage or someone an adoption agency has matched you with, knowing what to expect helps.

First, you must know whether you qualify for adoption. An agency requires adoptive parents to:

• Be at least 18 years old
• Own or rent a home
• Pass local and FBI criminal background checks
• Have a Level 1 Fingerprint Clearance Card from the state’s Department of Public Safety

If you qualify, you can often choose between a private domestic adoption, a foster care adoption, or an international adoption.

Private, Domestic Adoption

A private domestic adoption is the easiest route to adopting a child. Foster care adoptions, or foster-to-adopt, are another popular option if you’re fostering a child and their birth parent cannot take them back.

International Adoption

If you’d like to adopt a child from another country, the international process can be much longer and more detailed than for domestic adoptions. Administrative tasks include things like completing an International Home Study Evaluation, applying for a visa to travel to the child’s country, and then, once you bring the child home, finalizing the adoption.

Stepchild Adoption

What about adopting your stepchildren? Typically, this is much easier than adopting a child through an adoption agency. You won’t need an accounting review or a placement suitability study.

The court does, however, require you to have been married to the birth parent for at least one year and have lived with the child for six months or more. From there, steps to adopt a stepchild include the following:

• File a petition to adopt. Provide notice of the adoption hearing.
• Request a termination of parental rights from the child’s other birth parent (unless they are deceased). If they refuse or you can’t locate them, petition the court for termination.
• Undergo a home visit. A family court official will come by.
• Attend the adoption hearing. The child must be present (unless the court specifies otherwise).

How To Take Guardianship of a Minor or Adult

How does guardianship vs. adoption work for minors and adults? Here’s what to expect during guardianship petitions.

Guardianship of a Minor

If you would like to take guardianship of a minor, you’ll have to go through family court as you would for an adoption. Anyone can serve as a child’s guardian, including non-relatives. The court has the final say, keeping the child’s interests in mind.

To begin the guardianship process, you must file a petition with Arizona’s Superior Court and set a hearing date. Before the hearing, the child’s parents must sign a consent form. The child must also sign a consent form if they’re 14 years or older.

If you’re not a blood relative, you must provide your fingerprints to the court and permit a full background check. At the hearing, a judge will determine whether a guardian is necessary for the child and, if so, whether the person petitioning for guardianship is the ideal choice. Typically, guardianship hearings proceed uncontested.

Did the court grant your guardianship? You’re now obligated to care for the child as if they were your own. Either you or the parent can terminate the guardianship at any time.

Guardianship of an Adult

Taking guardianship of an adult is more complicated.

Firstly, you must attend a hearing to determine whether the person is “incapacitated” and thus in need of a guardian. You can petition for a hearing by completing the Petition for Appointment of Guardianship of an Adult form. The person in question must undergo a medical exam, and you’ll meet with an investigator who will interview everyone involved and inspect the incapacitated person’s living situation.

You can request either limited or full guardianship of an adult. Limited guardianship allows you to manage only some affairs of your ward, such as financial decisions. Full guardianship gives you complete decision-making power.

Resolving Child Custody Disputes

Divorcing with an adoptive child in the picture can be just as complicated as it is with biological children. It’s not uncommon for custody disputes to break out over child support, legal decision-making rights, parenting time, etc. This is especially true when there’s a parenting conflict (one parent wants to move the child out of state, for instance).

Legal mediation can help adoptive parents resolve custody disputes. During mediation, you’ll meet with a neutral party who will help the two of you make decisions. Mediation is ideal because it lessens the need for costly, time-consuming court battles.

If you cannot resolve disputes in mediation, you’ll need to have a hearing before a judge. It’s wise to hire a lawyer beforehand.

Legal Assistance for Guardianship, Adoption, and Custody in Arizona

You’ve learned about guardianship vs. adoption, but do you feel completely ready to face the guardianship process or adoption in Arizona? Why not reach out to our attorneys at Lincoln & Wenk, PLLC, for some help? Our family law attorneys have a combined 50+ years of experience and approach every case with compassion, so call us for a case evaluation at (623) 294-2464!