Guardianship Instead of Adoption?

In the Fall of 2010, we found ourselves being unlicensed, “kinship” foster parents to a 15 year old boy named Christian. He had been a classmate and friend of our oldest son, and when it was determined he needed a place to live, we agreed to step in and be that placement.

For a variety of reasons, this case-plan changed from reunification to pursuing guardianship.

Turns out, having an Arizona Department of Child Safety (DCS) case go to guardianship is unusual. Neither the caseworker or our eventual licensing worker had ever worked on a case that went to guardianship before. This meant there were a lot of questions and not a lot of actual knowledge or experience.

One of the biggest differences we have found between this case and a regular DCS case that goes to severance and adoption, is that after parental rights have been severed, the case gets moved to the Adoptions Unit. Then an Adoptions Caseworker or Adoption Specialist is assigned. This caseworker is an expert in all things adoption related.

In a case that ends up with a guardianship case-plan, the original caseworker is with the case until the guardianship is finalized. This caseworker is often not an expert in how to proceed with guardianship issues. In a support group that we are now a part of, I have heard people discussing the differences of adoption and guardianship. It is common to hear that different caseworkers give different answers to the same questions.

One of the things we didn’t know, was that we could apply for the adoption subsidy. In an adoption, the subsidy is applied for and finalized long before the adoption date. We didn’t know this could be applied for with guardianship, until later. This is important, because the subsidy is not just about money, it also comes with AHCCS medical and dental coverage. Many of the children that are in foster care have continuing medical and dental issues.

When it is a DCS case that is going to guardianship, there is not much for the foster parent to do. It all goes through the caseworker and the state and court. There was some paperwork to be filled out for the court that was similar to paperwork we filled out to become licensed– criminal history, previous addresses, etc.  Our responsibility during this time was mainly to continue to care for Christian and show up at court.

The final hearing had no fanfare, no excitement. We received our paperwork at the clerk’s office downstairs, and we were done. I believe we got milkshakes on the way home. That was our celebration.

Having guardianship meant we were in all legal considerations, the same as his parents. He was added to our private medical and dental insurances, we helped with his driver’s license and added him to our auto insurance. He had the same rules, limitations, curfews, chores, allowances, opportunities and punishments as our other children. And he had to suffer with having the whole family as his personal cheering squad. Just like our other children.

Now that we have also adopted from foster care we have found out some of the main differences:

With guardianship-

  • the child does not change their name.
  • an annual guardianship report is made to the court (usually a written fill-in-the-blanks form).
  • the court needs to be notified of any change of address, including if the child is living away from the guardian. This might happen if the child needs out-of-home therapeutic care, for instance.
  • the legal relationship ends when the child turns 18.
  • no inheritance ‘rights’ between the child and the guardian.
  • inheritance ‘rights’ within biological family is maintained.
  • the child can continue to have relationships with family members.
  • the guardian is expected to maintain a parent/child relationship and has all the “rights, responsibilities and privileges” that includes. For instance, we made all medical, educational, financial decisions involving Christian, just as we did our biological and adopted children.
  • financial aid for college can be affected, as they would fill out the FAFSA indicating that the student had been in foster care and/or guardianship. This normally makes them an ‘independent student’ and bases their financial aid on their own income.

With adoption-

  • the adoptive parents can choose a new name for the child.
  • there is no need to notify the court (or anyone else) of moves or a change in living status.
  • the legal relationship remains a parent/child (just as in biological relationships) even once the child is an adult.
  • the child has legal inheritance rights from the adoptive parent (but not from the biological parent).
  • It is usually ‘closed’ meaning any contact with biological family is usually limited and at the adoptive parents discretion.
  • financial aid for college will normally be based on the family/parents’ income and cannot be considered an independent student until age 23, or married. (This could be different based on age at adoption.)
  • you are given an Adoption Caseworker once severance has happened. The case moves into the Adoptions Unit. In our adoptions, the caseworker was able to give us a lot more guidance on proceeding, especially with gathering information to fill out the subsidy application.

One difference that is often talked about as a serious concern is that with guardianship, the parents can petition the court to have the guardianship dissolved and the child returned to them. If the parent does this, however, this opens a new DCS case and the parent will have to prove that they are now able to provide for their child. They will also have to provide (and pay) for their own lawyer. (When a child is removed from their custody by the state, the state provides attorneys for the birth parents.)

In an adoption, the birth parents rights have been severed. When the severance is first ordered, there is a short time frame that the severance can be appealed. After that, there is no ability for the birth parents to ever regain any rights to the child.

We have also found out that legal guardianship can be done with the court, without a DCS case being open. It averages about 2 months for this to be finalized. Paperwork is often available online, or you can go to the local courthouse and speak with the clerk. They can walk you through the process and you can pay the fees. This would be the easiest way to go, especially if the parents are in agreement. If the parents are in agreement, or don’t dispute it, it is a simple court hearing to approve the guardianship. A Guardianship Petition can be filed without parental agreement, but the Petitioner must show that the parents have been informed/served about the Petition. They must then also tell the court why the parents can’t/won’t agree and why the court should approve the Petition.

In Maricopa County, these two websites will help you file for guardianship on a minor child on your own:

Our journey to become guardians of Christian took 9 months. He is now 23. He has struggled, but seems to have finally found his way as an adult. He has always had communication with his biological family (including his mother), but those relationships have not always been easy for him– even before we were involved. It is us that he introduces as his parents, and we have always called him our son, not our ‘ward’. Looking back at this particular journey, I don’t know that I would have done things differently, but I would have asked more questions about the differences and how they can be seen ‘differently’.

Michelle Weisler

Foster/Adoptive/Guardian Mother



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