Adoption vs. Guardianship

Posted on by Horman Nichols, LLC

Written By: Trevor Addie-Carter

Another question that family law attorneys occasionally get asked is whether a prospective client needs to file an adoption case or a guardianship case.  Like many client questions, the answer is “it depends.”  While adoption and guardianship cases have some similarities, they are different cases with different procedures and end goals.  Here are some of the key differences between adoptions and guardianships:

  • Purpose – Adoption and guardianship have legally distinct purposes which generally do not overlap with each other.  In an adoption case, the Petitioner (person asking for the Court Order) is asking the Court to allow that person to become the parent of the Adoptee (person to be adopted).  In a guardianship case, the Petitioner is asking that the Court determine whether the subject of the guardianship case is a minor or a disabled person who needs a guardian to manage their affairs.
  • Relief Requested – In an adoption case, the Petitioner is asking the Court to grant a Court Order that has the legal effect of recognizing a legal parent-child relationship between the Petitioner and the Adoptee.  Oftentimes, this will result in the parental rights of at least one of the Adoptee’s natural parents being terminated.  The end result is the establishment of a legal relationship whereby the Petitioner assumes all parental rights and obligations over the Adoptee.  In Maryland, both children and adults can be adopted.

In a guardianship case, the Petitioner is asking the Court to grant a Court Order appointing one or more people to manage another person’s personal and medical affairs (Guardian of the Person), their financial affairs (Guardian of the Property), or both (Guardian of the Person and Property).  Unlike in an adoption case, a guardianship case does not establish a legal parent-child relationship, nor does the person appointed guardian receive any parental rights. Rather, the guardian is tasked with managing the specific affairs designated in the Guardianship Order.  Further, the courts are generally required to determine that there is no less restrictive alternative to guardianship before appointing a guardian.

  • Evidence Required – To the extent applicable to each case, all Petitions for Adoption must contain the information and evidence required in a single procedural rule.  This typically includes information about the Petitioner’s family situation, employment situation, income, and the Petitioner’s and Adoptee’s health.  Common documents that are included with every adoption petition include a certified copy of the Adoptee’s birth certificate, a certified copy of the marriage certificate for each married Petitioner, certified copies of all Judgments of Divorce of each Petitioner who has been divorced, and certified copies of any orders concerning temporary custody or guardianship of the Adoptee.

Petitions for Guardianship of the Person and for Guardianship of the Property each have their own set of procedural rules that govern the Petition and documents that must be filed with the Court.  Typically, these documents include two signed and verified certificates of examining or evaluating medical professionals and written parental consent (for cases involving minor).  The Petitions must also generally include specific information about the minor or allegedly disabled person, specific information about the Petitioner, and specific information about the minor or allegedly disabled person’s family members.

Adoptions and guardianships are complex legal proceedings with very specific procedures, evidence, and end goals.  If you have questions or wish to discuss whether adoption or guardianship is right for your family situation, please call our office at (301)-663-8101.

Why You Need an Adoption Attorney

Posted on by Horman Nichols, LLC

Written By: Trevor Addie-Carter

A fairly common question that family lawyers get asked is whether prospective adoptive parents need to hire an attorney in connection with their decision to adopt a child.  Maryland adoption law itself is a very specific field with its own specific sets of statutes and procedural rules that govern the court process.  Here are a few reasons why prospective adoptive parents need to work with an attorney:

  • There are different types of adoption in Maryland – Maryland law establishes three types of adoption in Maryland:  Public Agency Adoption, Private Agency Adoption, and Independent Adoption.  Each of these case types have their own sets of statutes that apply specifically to that type of adoption.

Public Agency Adoptions are adoptions through which the prospective adoptive parents are seeking to adopt a child who is in the care of a county Department of Social Services (also known as a Department of Health and Human Services in some counties). The public agency adoption statutes are Maryland Code, Family Law Article §§ 5-301 to 5-362.

Private Agency Adoptions are adoptions through which the prospective adoptive parents seek to adopt a child through a licensed child placement agency (such as Adoptions Together).  The private agency adoption statutes are Maryland Code, Family Law Article §§ 5-3A-01 to 5-3A-45.

Independent Adoptions are adoptions where no agencies are involved.  The most common type of independent adoptions are stepparent adoptions and intra-family adoptions (for example, where a grandparent adopts a grandchild from the natural parents).  As there are no agencies involved in an independent adoption, it is these adoptions for which the need for an attorney to guide the prospective adoptive parents is the greatest.  The independent adoption statutes are Maryland Code, Family Law Article §§ 5-3B-01 to 5-3B-32.

In addition, depending on circumstances, the Interstate Compact on the Placement of Children and other Interstate Compacts may apply.

  • There are specific procedural rules governing how natural (biological) parents are notified – Under Maryland law, both natural (biological) parents—the child’s mother and father—must be notified of the adoption proceedings and be given the opportunity to consent or object to the adoption.  This is true even if the prospective adoptive parents do not know where the natural parent lives.  This notice can be given by serving legal papers or through publication in the newspaper and on a Maryland Department of Human Services website.

There are specific rules that apply to each situation and each specific document that needs to be served (for example, a Consent form versus a Show Cause Order).  If these rules are not properly followed, it is possible that a parent may not receive the necessary notice, which can place the adoption proceedings in question.

  • The rules change if a natural parent objects – When both natural parents and the person to be adopted all give their consent, the Court must find that the proposed adoption is in the best interests of the child in order to grant the adoption.  If one or both of the natural parents object to the adoption, then the prospective adoptive parents must prove by clear and convincing evidence that very specific statutory requirements apply in order to terminate the objecting parent’s parental rights.

This is done through a Contested Adoption Hearing, which is a trial held for the purposes of determining whether the court can legally grant the adoption over the natural parent’s objection and, if so, whether the adoption is in the child’s best interests.  If the prospective adoptive parents cannot prove that the Court can legally grant the adoption over parental objection, then the Court cannot grant the adoption. 

Even if the natural parents both consent, there is a window of time for them to revoke their consent before it becomes finalized.  Further, the Court cannot grant an adoption if the person to be adopted objects.

If you have questions about adoption or are thinking of adopting, it is important you speak with an adoption attorney who can help explain the process to you.  For more information, call us at 301-663-8101.

What You Need to Know About the Maryland Adoption Process

Posted on by Horman Nichols, LLC

Written By: Trevor M. Addie-Carter

If you ask any Circuit Court Judge in Maryland, they are bound to tell you that there are few happier moments in Court than when they are able to grant an adoption.  The elation extends to everybody in the courtroom, from the adoptive parents and child to the Judge and court staff.  Having been adopted myself, I take particular satisfaction in being able to assist prospective adoptive parents and adoptees.  Here are 4 things to know about adoption cases in Maryland.

  • Maryland Law Recognizes Three Different Types of Adoption Cases – While the end goal for the prospective adoptive parents remains the same, Maryland law has specific procedures that can change depending on whether an adoption is a Public Agency Adoption through the Department of Social Services, a Private Agency Adoption, or an Independent Adoption, which are typically arranged by and between a natural (biological) parent and a prospective adoptive parent, with no agencies involved.
  • There is No Age Limit on Adoption – Many people believe that adoption only applies to children.  While the majority of adoption cases are child adoptions, Maryland law allows both adults and minors to be adopted.  Further, an adult can independently petition the Court for their own adoption, without the involvement of other adoption or government agencies.
  • The Process is Designed to Protect Parental Rights – The legal effect of adoption is that the Court must ultimately decide whether to terminate the natural parents’ parental rights and to grant parental rights to prospective adoptive parents.  In order to protect those parental rights, adoption procedures require that every natural parent file a written consent or a written objection to the adoption petition.  If a natural parent has not filed a response, the Court has the authority to issue a Show Cause Order setting a deadline to respond.  This Order must be personally delivered to the non-responsive parent.  
  • The Adoptee Has a Say, Too – If the prospective adoptee is at least 10 years-old, they must consent to their own adoption.  If the adoptee is under 10 years-old, they must not object to the adoption.

Adoption is a very specific field of law, and while many would consider it a subset of family law, not every attorney who practices family law handles adoption cases.  If you have questions, want to learn more, or are contemplating adopting, Horman Nichols is prepared to help.  Please contact us through our website or call our office at 301.663.8101.