Adoption, Guardianship and Informal Kinship Care
There are several ways in which third parties, other than biological parents, can obtain legal rights in regards to minor children. Although third parties can petition the court for custody of the children, these arrangements are most often achieved through adoption, guardianship, or informal kinship care. The attorneys at Weinberg & Schwartz, L.L.C. can assist biological parents or third parties with any of these processes. If you are a biological parent arranging for a third party to care for your child or a third party arranging to care for someone else’s child, we can discuss these processes. Our attorneys will further explain each process and help you decide what is best for you and the child.
Adoption is a process in which the biological parents’ legal rights are permanently terminated through the court and legal rights are awarded to a third party. Except in the case of step-parent adoption, the biological parents must consent to the termination of their legal rights or the court must find that there are sufficient reasons to terminate the biological parents’ legal rights. Once the biological parents’ rights have been terminated (either through the Court or through consent), the court requires several other steps to ensure that the adoption is in the best interest of the child. Adoptions can be arranged by a private agency, a public agency, or directly between the biological parents and the adoptive parents. Each of these arrangements has different requirements and processes outside of the court system.
One exception to the requirement that both of the biological parents’ rights be terminated is in the case of a step-parent adoption. Maryland courts allow one biological parent to consent to a step-parent adoption without affecting the legal rights of the other biological parent. Deciding to go forward with a step-parent adoption is a major decision for a family, as it will permanently terminate one biological parent’s legal rights and give the step-parent the same legal rights as if he or she were the biological parent of the child.
Guardianship of a Minor
If adoption and the termination of parental rights are too formal or permanent, another option is for a third party to obtain guardianship of a minor child. Maryland law distinguishes between guardianship of the person (i.e., making decisions about the child’s well-being) and guardianship of the property (i.e., making decisions about the child’s finances). Guardianship is often done by consent of the biological parents and the proposed guardian, although there are exceptions. Unlike adoption, a guardianship is not a permanent award of legal rights to a third party. Instead, a guardianship will continue until the biological parents and the guardian agree to terminate it or until the court orders that it be terminated. Often, third parties will seek a guardianship because they need to be able to enroll the child in school, authorize medical treatment, or obtain benefits on behalf of a child who is living with them instead of with the child’s parents.
Informal Kinship Care
In the mid-1990’s, the Maryland legislature recognized that many parents need a family member to take care of their child for a period of time due to a variety of circumstances. In response to that need, the legislature created an option commonly referred to as informal kinship care. This process allows parents to designate a family member to enroll a child in school, consent to medical care, and make other decisions on behalf of the child when the biological parents are unavailable. Informal kinship care is available if the child is living with a relative (through marriage or blood) because the biological parents are unavailable due to death, serious illness, drug addition, incarceration, abandonment, or active military duty. Although no court order is necessary for informal kinship care, legal and formal documentation is still required.