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What is the difference between adopting and becoming a legal guardian? – Pat
Before discussing the differences, let me first point out the basic similarity, that they both involve appointing someone, or in some cases more than one person, to provide for the needs of a child who is not biologically theirs.
Being a legal guardian is a temporary appointment to care for a child until they reach their 18th birthday. Often these situations stem from the fact that the biological parents are deceased or are not able to care for the child or support the child in the best possible way. The parent or parents often choose to have someone appointed as a legal guardian because they intend to retain legal rights as parents for the child. Therefore, the parents of the child can always end the guardianship and claim 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 pass entirely to the adoptive parent(s).
A legal guardianship may offer restricted rights to the child by the biological parents, while an adoption completely terminates the rights of the biological parents and they can no longer claim these rights. For example, when a child is adopted, their name at birth is changed and sealed and a new certificate is issued in the name of the adoptive parents. With legal guardianship, the child’s name remains that of their legal or biological parent.
In Jamaica, the Guardianship and Custody of Children Act is the law that governs legal guardianship, while the Adoption of Children Act governs adoption. There are two types of adoption in Jamaica: an application for an adoption order which allows adoption by citizens domiciled in Jamaica; and a License Application which obtains a license to send children overseas for finalization of adoption in any Commonwealth country, USA, Sweden or Denmark.
With an adoption, you do not need to retain the services of an attorney as the process is fully 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 demonstrate that the applicant has the means to care for and support the child adequately. Once everything is verified, the application is then submitted to the Adoption Council for approval. Upon receipt of the Adoption Council’s approval, the CPFSA then applies to the court for the adoption order.
For legal guardianship, however, it is preferable to retain the services of a lawyer because the application will be made before the Supreme Court. The application is supported by an affidavit from the applicant, as well as others who can speak to the applicant being a fit and suitable person. The parents of the child should be respondents to the application and it would be preferable if they file an affidavit in response stating that they believe it is in the best interests of the child for the applicant to be appointed as legal guardian . Based on the applicant’s own affidavit and those in support, including that of the parents, the judge will decide whether or not to grant the order of legal guardianship.
Odane Marston is an attorney specializing in conveyancing, administration, probate, possession recovery, criminal litigation and divorce. Marston can be reached by email at [email protected] or by phone at 876-999-5391. This article is for general information purposes only and does not constitute legal advice.