Adoption & Guardianship

ADOPTION

Adoption is defined as a social and legal process that creates a new family, giving adopted children the same rights and benefits as those born into the family. To children without a permanent family, adoption represents the hope for a better life.

Adoption can serve as a very useful legal relationship option for some relative-headed families. For others, it may be less appropriate. Before pursuing adoption, caregivers should understand all of the legal ramifications of adoption and consider other options like legal custody or guardianship as part of the process.

Legal adoption involves a judicial proceeding in which the following occurs:

Birth parents are proven unfit or voluntarily surrender all of their parental rights (such as the right to visit) and responsibilities (such as child support).

The court must generally terminate both parents’ rights and responsibilities unless:

  • one parent is dead
  • a step parent is adopting or
  • in some states only, paternity was never established and need not be terminated.

Upon termination of parental rights: 
Relative caregivers become the “parent” in the eyes of the law. A grandmother, for example, becomes “mom.” As an adoptive parent, access to services on behalf of the child is the same as for any birth parent.

Children can no longer automatically inherit from the birth parents’ estate, be included on the birth parents’ private health insurance policies, and receive benefits through the birth parent, such as military or disability.  Instead, children can inherit, be included on any private health insurance policies, and receive military or disability benefits as the adoptive child of the relative. Consequently, it is important to consider these financial ramifications when considering adoption.

NOTE:Birth parents cannot reappear one day and go to court to attempt to reclaim their rights and responsibilities, as they can with other legal options.

ADOPTION TYPES/CATEGORIES

Adoption in Georgia can be conducted through several different avenues depending on the situation.  The most common types of adoption are:

The Georgia Division of Family and Children Services (DFCs) is regulated under the Georgia Department of Human Services. DFCs is responsible for finding suitable homes for the numerous children in permanent state custody who are available for adoption. These children are often survivors of abuse, neglect or abandonment. Due to the harsh circumstances of their lives, most of the children fall in the adoptive category of “Special Needs”. As defined for the purpose of adoption,

Special Needs includes:

  • A child who has been in the care of a public or private agency or individual other than the legal or biological parent for more than 24 consecutive months.
  • A child with physical, mental or emotional disability, as  validated by a licensed physician or psychologist.
  • A child who is a member of a sibling group of two (2) or more placed in the same home.

Who are the children waiting to be adopted in Georgia?
Children waiting to be adopted include:

  • Children with special needs
  • Teenagers
  • Sibling groups
  • Children 10 years of age or older.

A parent to parent/step-parent adoption in Georgia can be a fairly simple process, and it can be a wonderful step to take to unite the family unit. A step-parent in Georgia can file to adopt his or her step-child.  Parent to parent or step-parent adoption almost always requires the permission of the parent who has custody of the child. The step-parent must be legally married to the child’s parent. Both the biological father and the biological mother have parental rights to the child. In every adoption, the absent or consenting parents parental rights will have to be terminated.

Some of the common grounds for termination of parental rights are: 

  • Abandonment of the child
  • Lack of financial support
  • Sustained lack of contact
  • Abuse or neglect of minor children
  • Putative or presumptive father is not the bio-father

NOTE:  In Georgia, if the child is over 12 years of age, the child will be required to sign a consent to the adoption.
When the adoption is completed, the child will have the following benefits:

  • New name is established (if desired)
  • New birth certificate
  • Two legal parents active in the child’s life
  • Ability to inherit from adoptive parent
  • The child will have a relationship with the adoptive parent that is the same as if the child were born to the stepparent.
  • The child’s new birth certificate will show the child’s new name and will have the adoptive parent and the natural parent listed as the child’s mother and father.

A “private” or independent adoption involves the adoption of a child who is not in state custody or the custody of a licensed adoption agency. This includes adoptions of relatives, non-relatives and step-children.

The court or the state will appoint an agent to review private adoption petitions to ensure compliance with Georgia law and policy and to make recommendations regarding the appropriateness of the placement. The court makes the final decision on whether or not to grant the adoption.

NOTE:

Georgia DFCS does not have jurisdiction over independent or private adoption. Therefore, it will be necessary to contact Bergstrom & Associates or other legal aid for more information on independent or private adoptions.

The Division of Family and Children Services (DFCS) Office of Residential Childcare (ORCC) licenses agencies for the placement of children in adoptive homes. Licensed private adoption agencies focus primarily on the adoption of non-DHS children. However, some child placing agencies provide adoption services for children in the permanent custody of the State of Georgia, through a contract with DFCS.

If you are considering pursuing an adoption outside the state of Georgia, your actions might be regulated by the Interstate Compact on the Placement of Children (ICPC). The ICPC is applicable to public and private agencies and some independent adoptions.

The State of Georgia reviews ICPC applications to ensure compliance with the legal requirements of both states. Approval of the application must be received prior to the   placement. Currently, all 50 states, the District of Columbia and the U.S. Virgin Islands are signatories of the Compact.

Adoption from other countries can be a complex and arduous process. Each country will have its own set of laws, regulations and processes. At Bergstrom & Associates, we can help you sort through the various complexities and determine the best process in which to move forward with this type of adoption.

LEGAL GUARDIANSHIP vs. CONSERVATORSHIP

This section assumes a traditional division between legal guardianship and legal conservatorship by addressing matters concerning the person as opposed to property. Accordingly, these two terms are very similar in structure but do include a few noted variants.

(1)  In some jurisdictions, a guardianship may be referred to as a “conservatorship of the person” or by some similar name, or there may be a type of guardianship position which subsumes many of the tasks of the conservator.

Under most circumstances where a person requires a legal guardian, the person’s incapacity will also impair his or her ability to manage financial matters. Thus, petitions for guardianship are often brought at the same time as petitions for conservatorship, and all associated proceedings are combined.

(2)  In some jurisdictions, a conservatorship may be referred to as a “guardianship of the estate”, or by some similar alternative name.

There are many circumstances where a person is still able to live an independent life but may require assistance with his or her assets due to failing health or disability. Thus, it is not unusual for a petition to be made for the appointment of a conservator, even where the allegedly incapacitated person does not require a guardian.

Can the same person serve as both the legal guardian and conservator?
Yes, if the Court determines that this is in the best interest of the person needing such protection. A Georgia Department of Human Services representative may be appointed as the guardian if there is not a suitable individual willing to serve. The County Administrator may be appointed as conservator if there is no other suitable individual willing to serve.

LEGAL GUARDIANSHIP

Guardians:

A guardianship is a legal right given to a person to be responsible for the food, healthcare, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for himself or herself.

When Is A Guardian Required for an Adult?
It may be necessary to petition a court to appoint a legal guardian for persons:

  • Who have a physical or mental problem that prevents them from taking care of their own basic needs;
  • Who as a result are in danger of substantial harm; and
  • Who have no person already legally authorized to assume               responsibility for them.

When is a Guardian Required for a Minor?

Since minors are generally protected and cared for by their parents, a minor’s parents make any and all legal decisions that may be necessary for his or her welfare. However, in some cases a child may need a separate individual to attend to their legal rights because the minor has inherited assets or no longer has a parent qualified to make legal decisions on his or her behalf. In these cases, a guardian can either be chosen voluntarily by the family or appointed by the court.
Under some circumstances, it may be necessary for a court to appoint an emergency guardian, who can act on your behalf during a crisis (such as immediately following a car accident) until you regain your ability to make your own decisions.

LEGAL CONSERVATORSHIP

Conservators:

A conservatorship is a legal right given to a person to be responsible for the assets and finances of a person deemed fully or partially incapable of providing these necessities for himself or herself.

When Is A Conservatorship Required?
It may be necessary to petition a court to appoint a legal guardian for persons:

  • Who have physical or mental problems that prevent them from managing their own financial affairs;
  • Who have no person already legally authorized to assume responsibility for them; and
  • Where other kinds of assistance with financial management will not adequately protect them.

Generally, conservatorships are established for people who are in comas, suffer from advanced Alzheimer’s disease or have other serious illnesses or injuries.  Conservatorships are time-consuming and expensive; they often require court hearings and the ongoing assistance of a lawyer. The paperwork can also be a hassle because the conservator must keep detailed records and file court papers on a regular basis.

If you have questions or need answers concerning adoption, foster care, legal guardianship or conservatorship, Bergstrom & Associates is here to help you. We understand the urgency and uncertainty often associated with this section of law and will diligently work with you and your family to expedite your case and ensure your needs are properly addressed.  Contact us today at 678-648-1794 for assistance.