What is the Difference between Guardianship, Custody, and Adoption, of a Minor Child?
Sometimes biological parents are unwilling or unable to take care of their child, and a non-parent must step in. If you find yourself faced with these unfortunate circumstances, you should be aware of your options so that you can make the best decision for the child involved. Below is an overview of 3 legal arrangements that may be available to you.
Obtaining a guardianship is easier than custody* or adoption, however it is also the least permanent option. Guardianship allows a non-parent (i.e. grandparent, aunt, family friend, etc.) to have legal responsibility for a child. To file for guardianship, you must be over 18 years old, be a resident of the U.S., be of “sound mind,” not be legally disabled, and not have a felony conviction that involved harm to the child. Biological parents can always object to a petition for guardianship, and if the biological parents can show that they can care for and make day-to-day decisions for the child, the petition for guardianship is likely to be denied. A guardianship does not terminate the biological parents’ parental rights, and unless the court orders otherwise, the biological parents can attempt to change or terminate a guardianship as many times as they want.
An award of custody is a more permanent solution than guardianship. If a non-parent wishes to file a petition for allocation of responsibilities, the non-parent must show that the child is not in the physical custody of either biological parent. When considering an award of custody, the court will determine what is in the minor’s best interests by considering several factors, including the child’s adjustment to his or her home, school, and community, whether there has been physical violence or threats of physical violence, the wishes of the child, any many more. After a custody judgment has been entered, it may not be modified for two years unless the health, safety, or mental welfare of the child is in danger. Therefore, unlike with a guardianship, it is much more difficult to change or terminate a non-parent’s award of custody.
An adoption permanently changes the legal relationship between the biological parents and the minor because the biological parents’ rights and obligations regarding the minor must be voluntarily relinquished by the biological parents or involuntarily terminated by the court. Generally, any adult who is 18 years of age or older and does not have a legal disability is eligible to adopt a minor. If the person seeking to adopt the child is not related to the child or if there is no agency involved in the adoption, the person seeking to adopt must be a resident of Illinois at least 6 months. If the biological parents do not consent to an adoption, the person seeking to adopt must prove, by clear and convincing evidence, that the biological parents are unfit. Therefore, it is very difficult for a non-parent to adopt a minor without the consent of the biological parents.
Legal issues involving children are often highly emotional and complex. The knowledgeable attorneys at Bruning & Associates, P.C. are here to help you navigate through this tough time and help you develop the best legal strategy for you. Please contact our office at 815-455-3000 to schedule a free consultation to discuss your family law needs.
*The term “allocation of parental responsibilities” replaced the term “custody” in Illinois in 2016. However, for the purpose of this article, the term “custody” will be used.
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