There are many ways to provide care for a child who must be removed from the custody of biological parents. Some are informal arrangements between family members or close friends, but these informal arrangements provide no legal authority to the caregiver. When the time comes for decisions to be made at school, a doctor’s office or hospital, state agencies or courts, an informal caregiver is unable to participate.
For a caregiver to have the necessary authority to make legal and medical decisions for a child, they must be recognized as a formal caregiver through one of the following: Adoption, Open Adoption with Agreements, Guardianship, Permanent Guardianship, Standby Guardianship, Legal Custody, De Facto Custody, or Medical and Educational Consent. Each type of option is explained in more detail below.
Adoption – The biological parents’ rights are forever terminated, and the caregiver is seen as the parent in the eyes of the law. Adoptive parents have full legal rights to make medical, educational, legal and other decisions for their children. Some states provide a financial subsidy to parents who adopt special needs children, but the definition of “special needs” differs from state to state. Some states consider any child adopted over the age of two years to be special needs whereas other states require some form of physical or mental disability to meet the criterion. If financial assistance is needed, it is important to know whether the caregiver’s state will provide a subsidy before deciding to adopt.
Open Adoption with Agreements – Legally, there is no such term as “open adoption”. There is only one kind of adoption as described above. The term open adoption indicates that there is an agreement, whether informal or written as a formal contract, detailing ongoing contact between the adopted child and its birth mother or sometimes foster mother.
Guardianship – Guardianship gives the caregiver legal authority to make medical, educational, legal and other decisions for children in their custody. Guardianship is not considered permanent because the birth parent can petition the courts at any time to regain custody of their child at which point the guardianship is terminated.
Permanent Guardianship – Some states offer a variant of guardianship that is essentially permanent. If the state determines that it is in the child’s best interest for the birth parents never to regain physical custody, it can legally prevent the birth parents from ever petitioning the court to terminate guardianship.
Standby Guardianship – Standby guardianship is a unique form of guardianship whereby a terminally ill parent is allowed to designate in advance the caregiver for their child once incapacity strikes. This is not available in all states.
Legal Custody – Legal custody is similar to guardianship but is not available in all states. If available, it is usually granted by a family court whereas guardianship is usually granted by a probate court. There is some suggestion that the status of guardian confers more authority to make decisions for the child than that of legal custodian.
De Facto Custody – Available in some states, this designation relates only to custody hearings. De Facto custodians are persons who have “in fact” provided primary physical and financial care to a child for at least six months to one year. The court grants de facto custodians the same rights as parents in custody hearings.
Medical and Educational Consent – Some states provide authority to caregivers without guardianship or legal custody after all reasonable attempts to locate a parent are guardian have been exhausted. For example, an aunt, uncle or grandparent without guardianship or legal custody can submit an affidavit to the court requesting permission to enroll the child in school or assent to medical care.
While adoption, guardianship and legal custody are available in all states, the other forms of legal caregiving authority vary by state. It is important to know the legal caregiver options in the state where care will be provided to the child.