Child Guardianship and Adoption: Differences and Similarities.

Child Guardianship and Adoption: Differences and Similarities.

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When you want to secure a child who is not your biological child in your family, questions arise as to whether to pursue adoption of the child or guardianship. This article points out the main difference between the two with regards to effect and process.

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1.????Cutting off of biological parents’ rights: While guardianship and adoption both grant successful applicants parental rights ?and responsibilities over a child, adoption legally cuts off the relationship of a child with the child’s biological parents. Guardianship does not cut off those rights. In fact it is possible to have guardianship of a child jointly with a biological parent of a child.

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2.????Permanence: Parental rights?and responsibilities granted by adoption are for life. They do not expire when the child turns eighteen. They are also irreversible. Parental rights and responsibilities acquired through guardianship expire when the child turns eighteen. A child or a parent by guardianship can also approach a court before the child is eighteen and seek to have the guardianship revoked.

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3.????Inheritance rights: Due to the permanence of adoption, an adopted child is entitled as of right to inherit from their adoptive parent which is not the case for children secured in the family through guardianship. Note however that a guardianship order can be used as proof that a deceased person brought a child into the family and embraced them as their own. Such a child is considered a dependant for purposes of inheritance. The difference is that if a child is adopted, their right to inheritance is absolute,?while a child brought in through guardianship would have to prove that they were dependent on the deceased person at the time of the deceased person’s death.

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4.????Change of Name: With adoption, a parent is entitled to change the name of the child as of right. For very young children, especially babies adopted from children’s homes, an entirely new name is usually given in addition to the adopter’s last name. For older children, especially children adopted from within the family, the name change is usually just to add the adopter’s last name. ?With guardianship the court may or may not agree for the child’s name to be changed.

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5.????Immigration: Most countries will automatically recognize an adopted child as your child and extend ?your citizenship or long term /permanent residence to the child. Few countries do this on the strength of a guardianship order. Many countries will consider a guardianship order only for short visits if at all.

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6.????Prior Approval: In terms of process, before you can approach the court asking for an adoption order, you must get prior approval from a registered adoption society ?to adopt a child and the child must also be declared free for adoption by a registered adoption society. With guardianship, there is no prior approval required before approaching the court. Nevertheless, once either case is in court, the court may ask for a report by the Director of Children services on the appropriateness or otherwise of granting the adoption or guardianship of the child as the case may be.

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7.????Employment and Insurance Benefits: Employers and insurers are bound to recognise your adopted child and extend the same benefits to them as your biological child would be entitled to. In fact, the Employment Act now provides for adoption leave. With guardianship, this recognition and extension of benefits is not automatic. Some employers and insurers will extend benefits on the basis of guardianship while others will not.

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8.????Courts: Adoptions are heard by the High Court of Kenya while guardianship is filed in the Children’s Court. With guardianship, you can file one case for more than one child but with adoption, there must be a separate case for each child.

9. Documents: Once you complete an adoption, you get an Adoption Order from the Court, an adoption certificate from the Registrar General at the Attorney General's Chambers and a post adoption birth certificate from the Registrar of Births. The post Adoption birth certificate shows the adopters' names as the parents of the child. With guardianship, you get a guardianship order. No change is effected in the child's registration with government.