Guardianship

The most significant distinction between guardianship and adoption is that guardianship does not sever the biological parents’ rights and responsibilities and the guardian does not become the parent in the eyes of the law. Guardianship of a child means that a caregiver is responsible for the care and custody of the child.

This "guardianship" designation allows the caregiver to access services on behalf of the child that without such a designation might prove impossible. Unlike with adoption, a parent can go back to court and ask for the guardianship to be ended and the care and custody of the child returned to the parent.

Permanent Guardianships: These are guardianships designed for children who have been in state custody and which are difficult to terminate. For example, Oregon has a permanent guardianship status that may only be granted by the juvenile court after it is proven that it is in the best interest of the child that the birth parent should never have physical custody of the child. A birth parent is prohibited from petitioning the court to terminate this permanent guardianship once it is granted. When assessing their options, caregivers should be aware of whether permanent guardianship exists, and how it is defined, in their state.

Standby Guardianships: These laws were originally designed in response to the AIDS crisis and allow a terminally ill parent to designate a standby guardian to take over the day to day care of a child in the event of a triggering event, such as incapacity, without the parents’ rights being terminated. There is a Sense of Congress in the Adoption and Safe Families Act (ASFA) that States should pass these laws:

Arkansas: AK Code, 28-65-221
California: CA Probate Code, section 2105
Connecticut: CT Statutes, section 45a-624
Florida: FL Statutes, 744.304
Illinois: IL Statutes, Chapter 755, section 5/11a-3.1
Iowa: IA Statutes, 633.560
Maryland: MD Code, 13-903 and 13-904
Massachusetts: MA General Laws, Ch. 201, section 2B
Minnesota: In April 2000, a new "standby and alternate custodies" law went into effect in Minnesota, which can be found as Senate File 3018 to be codified in MN Statutes, chapter 257B.
Nebraska: NE Revised Statutes, section 30.2608
New Jersey: NJ Statutes, 3B:12-67 to 3B:12-76
New York: NY Consolidated Laws, SCPA, section 1726
North Carolina: NC Statutes, 35A-1370 to 35A-1382
Pennsylvania: PA Statutes, 5602 to 5612
Virginia: VA Code 16.1-349 to 16.1-355
West Virginia: WV Code 44A-5-1 to 44A-5-8
Wisconsin: WI Statutes 48-978
Wyoming: WY Statutes 3-2-108

Credits: Generations United (c) 2002. Reprinted with permission