Adoption versus legal guardianship

Good Day Sir,

What is the difference between getting an adoption and becoming legal guardian? - Pat

Dear Pat,

Before I go into the differences, let me first point out the fundamental similarity, which is that they both involve appointing someone or in some instance, more than one person, to provide for and support a child who is not biologically theirs.

Being a legal guardian is a temporary appointment for the caregiving of a child until he/she reaches their 18th birthday. Oftentimes these situations stem from the fact that the biological parents are either dead, or not in a position where they can care for the child, or provide for the child in the best possible way. The parent(s) oftentimes opt to have someone be appointed a legal guardian, as they do intend to retain the legal rights as parents for the child. Therefore, the child's parents can always terminate the guardianship and reclaim custody of the child.

Adoption, on the other hand, is quite different in that it legally terminates the rights of a child's biological parents and the rights are passed entirely to the adopted parent or parents.

A legal guardianship can offer restricted rights to the child by the birth parents, while adoption completely terminates the right of the biological parents and they cannot later reclaim those rights. For instance, when a child is adopted his/her name at birth is amended and sealed and a new certificate issued in the name of the adopted parents. With a legal guardianship, the child's name remains in that of his/her legal or biological parent.

In Jamaica, the Children Guardianship and Custody Act is the piece of legislation that governs legal guardianship, while the Children (Adoption of) Act governs adoption. There are two types of adoption in Jamaica: an application for an adoption order which allows for adoption by citizens domiciled in Jamaica; and an application for a licence which allows for a licence to send children abroad for the finalisation of the adoption to any commonwealth country, the USA, Sweden or Denmark.

With an adoption, you do not need to retain the services of an attorney as the process is completely facilitated by the Child Protection and Family Services Agency (CPFSA). For the adoption order, the applicant is interviewed by the CPFSA and the home and community are visited. Several supporting documents are required to provide evidence showing that the applicant has the means to adequately care and provide for the child. Once everything is verified, the application is then submitted to the Adoption Board for its approval. Upon receipt of the approval from the Adoption Board, the CPFSA thereafter applies to the court for the adoption order.

For a legal guardianship, however, it is best to retain the services of an attorney as the application will be made in the Supreme Court. The application is supported by an affidavit from the applicant, as well as other persons who can speak to the fact that the applicant is a fit-and-proper person. The child's parents should be respondents to the application and it would be best if they file an affidavit in response that speaks to the fact that they believe that it is in the child's best interests to have the applicant appointed a legal guardian. Based on the applicant's own affidavit and those in support, including that of the parents, the judge will make a determination as to whether or not to grant the order for a legal guardianship.

Odane Marston is an attorney-at-law who specialises in conveyancing, administration, probate, recovery of possession, criminal litigation and divorce. Marston may be contacted via email at Odanemarston@gmail.com or telephone 876-999-5391. This article is for general information purposes only and does not constitute legal advice.