The Legal Implications of Adoption
Adoptions let persons who do not naturally have a parent-child relationship with a child to obtain the legal rights and responsibilities stemming from that relationship. The adoption process gives individuals the same legal privileges and duties as those of the child’s natural birthparents.
Adoption proceedings can affect the parental rights of individuals regarding the following issues:
- Conservatorship proceedings—also known as child custody
- Proceedings regarding a person’s access to a child—also known as visitation in other states
- Authority for making legal decisions on behalf of a child
- Automatic inheritance rights regarding the child’s estate
- The child’s inheritance rights regarding the adoptive parent’s estate
In adoption cases, the parental rights of an adopted child’s biological parents must be terminated for all intents and purposes. However, an adopted child still has inheritance rights with respect to their biological parent’s estate, unless the court deems otherwise.
The Legal Implications of Guardianship
A person who is not necessarily one of the child’s natural birthparents may be appointed their legal guardian. As a result, they are entitled to certain rights and responsibilities regarding the care and control of the minor child.
The child’s legal guardian has the following rights and duties:
- The right to physical possession of the child—also known as custody in other states—including the right to establish the child’s primary residence
- The duties of care, control, and protection of the child
- The duty to provide the child with food, shelter, clothing, and medical care
- The right to consent to medical and psychiatric treatment on behalf of the child
Texas courts consider guardianship to be identical to the managing conservatorship of a child. Additionally, many provisions in the Texas Family Code put guardians and managing conservators on equal footing. Although guardians and parents have identical rights, the termination of parental rights is not necessary to appoint someone as a child’s guardian, unlike the process for adoptions. Instead, the rights of a child’s legal parents are suspended during the period of guardianship.
The Texas Estates Code governs the eligibility of persons who may be appointed as a child’s guardian. Like other custody determinations, courts are bound to consider the child’s best interests when they make decisions about guardianship.
Under the Texas Estates Code, the following people are eligible to be appointed as a child’s guardian:
- A child’s natural parents
- An individual expressly identified in the will of one of the child’s deceased parents
- The child’s nearest direct ascendant, if both parents are deceased
- The child’s next of kin who is not a disqualified minor, if both parents are deceased
- A person whom the court deems qualified to serve as guardian if the child has no living relatives
If a minor is at least twelve years old, the court may consider someone the child identifies as their preference as long as that choice is in their best interests.
Guardianship and Parental Rights
As you might have guessed, guardianship does not create a parent-child relationship. Consequently, the child’s legal parents still have a duty to provide their child with financial support, notwithstanding a guardian’s appointment.
Additionally, a guardian does not have automatic inheritance rights regarding a child’s estate, and vice versa. A guardian must specifically establish inheritance rights for a child through a will or other instrument of estate planning. Because only adults can create a will, a child does not have the legal capacity to create a will of their own. Thus, a guardian will typically be precluded from inheriting a child’s estate.
Alternatives to Guardianship
While guardianship provides individuals with a comprehensive way to legally provide a child with the necessary care and control to protect and preserve their interests, the Texas Estates Code identifies alternatives to guardianship. These alternatives may have limited rights and responsibilities when compared to those of a guardian but may be more appropriate depending on the circumstances.
The following are legally recognized alternatives to guardianship:
- Execution of a medical power of attorney
- Appointment of an agent under a durable power of attorney
- A declaration for mental health treatment
- Selection of a representative to manage a child’s public benefits
- Establishing a joint bank account
- Creation of a management trust
- Creation of a special needs trust
- Pre-emptive designation of a guardian
Coker, Robb & Cannon, Family Lawyers—Advocates for Parents & Caretakers
If you have questions about the pros and cons of adoptions and guardianships regarding the care, custody, and control of a minor child, you should seek the professional legal counsel of an attorney from Coker, Robb & Cannon, Family Lawyers.
Contact our office online or call us at (940) 293-2313 to arrange for an initial consultation regarding your rights and responsibilities today.