| Adoption | Guardianship |
| Legal Status | Birth parent/s’ rights are voluntarily relinquished or involuntarily terminated. The adoptive parent/s is given all the rights and responsibilities that once belonged to the birth parent/s. When the adoptive parents are married, both spouses must adopt unless separated for more than a year. Adoption is a permanent, lifelong, legal relationship. | Birth parent/s’ rights may or may not be voluntarily relinquished or involuntarily terminated. Guardian is given legal responsibility for the child and assumes the rights of care, custody, and supervision of the child. When married, either one or both spouses may be named guardian.
The birth parent/s retain “residual rights” when parental rights have not been relinquished or terminated. These rights include: visitation, consent to adoption, choice of religion and the right to claim the body of a deceased child. The court makes all decisions regarding the transfer of guardianship, but the birth parent/s can request that guardianship be taken away from the caregiver and that the child be returned to their care if parental rights have not been terminated. If the birth parent/s’ parental rights are terminated the guardian may legally adopt the child with DCFS’ help. |
| Decision Making | All decisions are made by the adoptive parent/s. | Major decisions regarding school, medical treatment and consent for most other major life decisions are made by the guardian. Birth parent/s retain important rights, e.g., choice of religion, visitation and consent to adoption when parental rights have not been relinquished or terminated. |
| Financial Assistance | The adoptive parent/s, whether receiving a subsidy or not, are financially responsible for the support of the child. Financial assistance is available for the adoption of many department children. See page 8 for details. | A guardian, whether receiving a subsidy or not, is fi nancially liable for the support of the child. Financial assistance is available for eligible children. See page 13 for details. The guardian is responsible for fi nancially supporting the child until DCFS stops the subsidy payment and the court vacates guardianship (whichever event happens last). If the birth parent/s’ rights have not been terminated they can be held responsible to contribute to the financial support of the child. |
| Relationship with the Birth Parent/s | The adoptive parent/s have the right to determine if the child will have any relationship with the birth parent/s. | If the birth parent/s’ rights have not been terminated, they have the right to visit the child unless a court orders no visits. The guardian will have input into how the visits are structured, but can not prevent visits from occurring. If the guardian and the parent/s can not work out visitation scheduling, one of the parties may wish to seek court involvement. Birth parent/s also have the right to petition the court to have the child returned to them. |
| Child’s Legal Name | The adoptive parent/s determine the child’s legal name. | Usually the child retains his/her own legal last name. |
| Inheritance | An adopted child has all of the same rights as birth children when the adoptive parent/s does not have a will. Otherwise, inheritance rights are established through a valid will as they are for birth children. | The child has no rights of inheritance from the guardian unless the child has been included in the guardian’s will. |
| Consent of the Child | A child who is 14 years of age or older must consent to his/ her own adoption. | A child who is 14 years of age or older must consent to the transfer of guardianship from the department to an individual. In addition, a child who is 13 years of age or older can petition for a change of guardianship. |
| Death of Adoptive Parent/ Guardian or Termination of Adoption/ Guardianship | A child adopted with adoption assistance remains eligible for adoption assistance when he/she is orphaned due to the death of his/her adoptive parent/s or when a court terminates the adoptive parent/s parental rights. He or she can continue to receive adoption assistance if adopted by someone else. | A child that moves to subsidized guardianship under KinGAP does not retain eligibility for a subsidy in a subsequent guardianship. |
| Returning a Child to DCFS | An adopted child would have to be found by the court to be abused, neglected or dependent in order to have DCFS again assume legal responsibility for the child. | A child for whom an individual has been named guardian would have to be found by the court to be abused, neglected or dependent or other good cause must exist in order for DCFS to again assume legal responsibility for the child. Or the guardian or other interested party would have to petition the court to have the guardian relieved of the responsibility of guardianship. |
Note: Adoption assistance and subsidized guardianship ongoing monthly payments are the same as the foster care board payments that were received while the child was in foster care.
Both adoption and guardianship are evidence of strong commitments to children. The commitment entered into by adopting a child is one that lasts for a lifetime. Although guardianship legally ends when the child reaches adulthood, most legal guardians enter into this commitment intending it to be a lifetime relationship. Thus, adoption and guardianship are commitments to be taken seriously by caregivers.
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