Custody and Adoption and Guardianship—Oh My! Deciphering the Confusing Legal Jargon of Parental Rights

By Kelly M. Walsh, Esq. and Erin K. Komada, Esq.

When a person is seeking to obtain or modify parental rights or parent-like rights to a child or disabled person, it is easy to get lost in the jargon. Schools and doctor’s offices often use the terms parent, custodian, and guardian as if they are interchangeable, and in ways that cause confusion. The blank on the form at the school or doctor’s office asks for the name of the parent or guardian. If you are someone other than the child’s parent, that may lead you to believe you want to be appointed as guardian, but the legal mechanism you are really seeking may be something entirely different. There are actually many different legal mechanisms that provide parental rights, and are appropriate in very different circumstances.

In this article, we are providing a description of the common legal mechanisms that create or modify parental rights, to help resolve some of the confusion and empower you with the right vocabulary to accomplish your goals.

Custody

Custody divides the rights to a child between two or more people. Typically, the parties to a custody case are two parents, but that is not always the case. Custody is also the appropriate mechanism for grandparents and a variety of other people who have been involved in the child’s life in a parent-like role.

Not everyone can ask for custody of a child. The law limits who has standing to file a custody case to limit outside interference with the parent-child relationship. Parents should not and do not have to go to court to fight off custody claims by every friend or neighbor who takes a liking to their child. There must be a close enough relationship and a history of involvement in the child’s life to support the claim for custody.

A parent or someone who has been performing the role of a parent always has standing for a custody case seeking any form of custody. Unless they have been acting in the role of a parent to the child, Grandparents can only seek sole or shared custody of a child under limited circumstances. Those are if the child has been determined to be a dependent child in a dependency matter; if the parents have put the child substantially at risk due to abuse, neglect, drug or alcohol abuse, or incapacity; or if the child has resided with the grandparent for at least 12 consecutive month. Grandparents can additionally ask for partial or supervised custody if the parent that was their child has passed away.

There are two types of custody, both of which will be decided in a single custody case. Legal custody decides who has the right to make important decisions in the child’s life, such as where the child goes to school, what religious services the child attends, and what medical providers the child visits. Legal custody is almost always shared between parents, unless one or both parents have demonstrated a profound inability to make that type of decision.

Physical custody is what people usually think of when they think of a custody case. Physical custody decides who gets to spend time with the child, how frequently, and where that time may be spent. Physical custody can be sole, partial, shared, or visitation only, and there can be restrictions such as requiring supervision to protect the child from the parent during visitation. Physical custody typically takes the form of a schedule. It designates who has the child on what days, when and where exchanges take place, what happens during the holidays, and how the parties are to interact with each other and with the child. It typically requires open communication and restricts behaviors that are harmful to the child such as disparagement of the other parent, drug use, and sudden relocation.

A custody case typically continues until the child turns 18. The parties to a custody case may regularly return to court to modify the custody order, or may modify it outside of court by agreement.

Adoption

The goal in adoption cases is to have the court enter a decree which creates a legal parent-child relationship between the adoptive parent and the person being adopted (known as the adoptee). In order to do so, the parent-child relationship between the biological parent(s) must first be terminated to permit the adopting parent(s) to step into the role of the biological parent(s). Think of adoption as a two-step process: first, we must end the existing parent-child relationship(s) and second, we must create new a parent-child relationship.

So step one is termination. We can accomplish this one of two ways, either by the parents voluntarily relinquishing their rights or by filing a petition to involuntarily terminate the rights of the biological parent(s). If a parent agrees to voluntarily relinquish his or her rights, we have them sign a consent, and they have thirty (30) days from the time they sign the consent to revoke it. After the thirty-day period has run, we file a Petition to Confirm Consent or a Petition for Voluntary Relinquishment. In either case, we are asking the Court to terminate the biological parent’s rights to the child due to the biological parent consenting to the termination. A hearing will be scheduled for the Court to rule on the petition.

Involuntary termination is a process that can be used under certain circumstances. There are eleven different grounds under which we may involuntarily terminate a biological parent’s rights. An attorney will advise you whether, under the facts and circumstances of your particular case, involuntary termination is an option. If so, we file a Petition to Involuntarily Terminate the Parental Rights of the biological parent. A hearing will be scheduled at which the Court will take testimony and evidence, and the judge will issue a decision as to whether the rights of the biological parent should be involuntarily terminated. The court may consider the bond (or lack thereof) between the child and the biological parent in reaching its decision.

Once the rights of the biological parent(s) are terminated, we move on to step two and file a Petition for Adoption in which the adoptive parent(s) request the Court to issue an Adoption Decree. A hearing will be held on this petition as well, and if the Court approves the adoption, it will issue a decree and order that the adoptive parents are now the legal parents of the adoptee. It is during these proceedings that we would request a name change for the adoptee, if applicable.

Adoption is the process by which we create a new parent-child relationship between the adoptive parent(s) and adoptee. So, while adoption may ultimately have custody implications, it is different from custody. Anyone may be an adoptee, and anyone may be an adopting parent. There is no age restriction on who may be adopted. The adopting parent(s) can be single individuals or a married couple.

It is important to recognize that adoption creates a parent-child relationship regardless of the age of the adoptee. Even in the case of an adult adoptee, the goal of adoption is to create a parent-child relationship. The creation of a parent-child relationship between the adopting parent(s) and adoptee creates a new set of rights and duties for these parties. For example, parents have the duty to financially support their children (which in certain cases can include adult children) but they also have the right to seek custody orders concerning their minor children. You will also be responsible for certain acts that your child may commit. For example, you may receive charges and fines in connection with truancy if your child misses enough school to warrant law enforcement to get involved. You may also be liable for certain non-criminal acts committed by the child. A parent with custody of a child under 18 is liable for the child’s willful torts, with liability limited to $1000 per person injured, or $2500 total, for each instance. Additionally, you may be responsible for negligent acts of your child if the injury caused by your child is the natural and probable consequence of your negligent act, that is a consequence which, under the surrounding circumstances, might and ought reasonably to have been foreseen as likely to flow from such negligent act. Finally, the new legal relationship also creates new inheritance rights, both from parent to child and child to parent.

Related Reading

• Adoption
• What are the Rights of Biological Parents in Adoption?
• Family Law Matters: Relieving the Stress of Adoption

Guardianship

Frequently, non-parents incorrectly believe that guardianship is the legal mechanism they need to obtain parental rights to a child. Forms at doctor’s offices and schools perpetuate this confusion by asking for the name of the “Parent/Guardian” as if to suggest that any person with parental rights who is not a parent must be a guardian. Typically, if you are seeking parental rights to a child, this is not the legal mechanism you are looking for. The appropriate mechanism is more likely to be custody or adoption.

Typically, guardianship does not involve a child at all. It involves a person, usually an adult, who is incapacitated. Guardianship can be related to custody if you have a child with a disability. Parents of children with disabilities often find themselves lost at the end of the custody case. When your disabled child has aged into an incapacitated adult, it is time to graduate from custody to guardianship. Guardianship might also be something you need to help you take care of an older relative who has become incapacitated, or a child who receives a large inheritance.

Guardianship is a legal mechanism that appoints a guardian to make decisions on behalf of a person who is incapacitated. The typical guardianship case involves an adult who becomes incapacitated due to dementia, Alzheimer’s, down’s syndrome, severe autism, or another disorder that impairs the ability to make decisions or communicate. When Guardianship does involve a minor child, it is because the child is temporarily “incapacitated” by minority and therefore unable to manage financial assets. There are three types of guardianship. You may be appointed as Guardian of the Person, Guardian of the Estate, or Guardian of the Estate of a Minor Child.

A Guardian of the Person is appointed to make day to day life decisions on behalf of an adult who is incapacitated. It may be necessary to be appointed Guardian of the Person to help the incapacitated person schedule medical appointments, coordinate with social workers and social services organizations, and enter into extended care facilities. Of these three, Guardianship of the Person is the most custody-like. It is the mechanism that is used when a severely disabled child ages out of custody. It is the Guardian of the Person who would make physical custody decisions, such as where the incapacitated person lives and on what schedule the incapacitated person visits with other family members.

A Guardian of the Estate is appointed to make financial decisions on behalf of an adult who is incapacitated. The guardian is granted the authority to manage the incapacitated person’s income, investments, assets, and debts. It may be as simple as managing a checking account to receive social security payments and pay medical providers. It may also be extraordinarily complex, and involve operating multiple business entities, buying and selling property, and managing a large estate of valuable assets that were expertly managed by the incapacitated person before the onset of incapacity.

A Guardian of the Estate of a Minor Child is a temporary appointment to make financial decisions on behalf of a child, who is only “incapacitated” by minority. Typically, this is used when a child receives an inheritance, and needs an adult to manage the inheritance until the child comes of age. The guardian is granted the authority to manage the child’s financial assets, generally with heavy restrictions to preserve the financial assets until the child reaches the age of majority. In many cases, the appointment only really grants the authority to open a restricted bank account and deposit funds in that account. If the child receives more complex assets, though, the Guardian of the Estate may need to manage more complex real estate or business holdings. Aside from limited financial authority, which is subject to heavy oversight by the Orphans Court, a Guardian of the Estate of a Minor Child.

Call 717 775 7195 to schedule a consultation with an experienced attorney about any of these matters.