Child Custody, Guardianship, and Adoption During and After a Divorce

Every family is different, and therefore the number and quality of caretakers for every child cannot be easily predicted by standardized forms. From the Brady Bunch to orphaned children raised by their grandparents, there are hundreds of different family and support structures. If you are getting a divorce and are worried about a complex child custody battle, it may become important to understand the difference between legal custody and adoption. This article should help you understand where your rights are as a parent and what could happen if you sign away those rights. If you are a concerned step-parent, there are also ways to gain a greater right to custody.

Two Legal Parents per Child

While the details may change from state to state, all American children can only have two legal parents. They may have step-parents, foster parents, and others who may be granted custody, but there are only ever two slots for legal parenthood. These are granted initially to their biological parents and adoption is the way to fill one of these slots when it opens up. The death of one parent, for instance, frees up one legal parenthood slot leaving the child free to be adopted by one person while still remaining the legal child of their living parent. The legal parenthood slots can also be opened to adopters if parental rights are signed away or involuntarily terminated.

Child Custody: SAPCR and Guardianship

Gaining custody of a child who is not biologically yours is a tricky subject, but one that comes up all the time in modern divorce. It’s not actually necessary to remove parental rights or ‘free up the slot’ in order to become the legal guardian of a child. Instead, you or the court will use a Suit Affecting Parent-Child Relationship (SAPCR) which assess if the concerned adult can or has been serving as the child’s primary caretaker, thus creating an emotional “parent-child relationship”. If this is successful, you may be named the guardian of a child and thus legally able to care for them and make decisions for them much like a legal parent.

Adoption vs Guardianship

There are a few major differences between adoption and guardianship. The first is that anyone holding the parental slots has legal precedence and is in a strong position to take the child back if they can prove they are fit to parent. Second, even if your guardianship goes uncontested, the child you are the guardian of will not be legally equal to your other children. They will not automatically inherit and you may have trouble with hospital family restrictions. That said, anyone who has become a legal guardian is in a much better place to adopt than an adult in a non-guardian position, even if they are related to the child and you are not.

Who Can Gain Custody as a guardian?

Contrary to popular belief, blood relation is not the final word in child custody. The courts do their best to make decisions in the best interests of each child based on who they have been raised by and has taken on the parental role in their lives. Gaining complete guardianship, of course, also depends on both parents voluntarily giving up custody or ruled to be unfit.

  • Grandparents: Preference is only shown if they have been involved in the child’s raising
  • Step Parents: Strong claim if they have been raising the child and there is a positive emotional bond
  • Partners of Deceased Parents: Reasonable claim if they have been the primary caretaker
  • Family Friends: Will be considered if they have been caring for the child and have a strong bond
  • Foster Parents: Are already halfway to official guardian roles and have a right to adopt if both parents are unavailable and no relatives step up
  • Adoptive Parents: You are already a legal parent with standard custody rights.

Seeking Legal Advice

Every custody and adoption scenario is different. If you would like to become the legal guardian of a child in your life, it’s important to seek legal advice for your unique circumstances. The family law experts at Sutherland Law can help you with this process in a number of ways.

  • Review legal paperwork and counsel you through the process
  • Pursue contested adoption
  • Manage surrogacy agreements
  • Terminate parental rights

If you need any of these services or would simply like an in-depth consultation on your child custody situation, please contact us today. Child custody is always a complicated and difficult topic. Whether you are a parent or a concerned relative or friend of the family, if you believe that legal action is needed for the best interests of the child, we are here to help.

2018-09-05T12:39:13+00:00August 16th, 2018|