There are other forms of kinship care besides those mentioned previously. In this section we look at three: stepparent adoption, co-guardianship, and standby guardianship.
Stepparent adoption is the most common type of adoption in the United States. Statutes on stepparent adoption have long been on the books throughout the country. Approximately 42 percent, on average, of all adoptions each year are by stepparents of their stepchildren. Little is written about issues unique to people considering this option to protect their relationship with their stepchildren. When a birthparent has disappeared, withdrawn any contact, or died, or if the child was an infant when a separation occurred, the legal bond of adoption is often in the child's best interest. However, even in these cases in which one birthparent remains part of the child's life, the child may be troubled by some of the same issues that distress children in other kinship arrangements and in traditional adoptions. At various stages in life, the child may feel loss, rejection, abandonment, anger, or resentment. Also, having been legally adopted does not necessarily keep a child from wanting to search for the other birthparent or birth relatives.
Legal adoption by a stepparent is not the best option in every case. Sometimes a child remembers a birthparent with love (especially if he or she has died, not just disappeared) and does not want to be adopted. Or, the child may be in touch with grandparents, aunts, or other relatives who would prefer that legal adoption not take place. The relationship between the stepparent and child can be protected, however, should the spouse die, through a legal guardianship or naming the stepparent as guardian in a will.
The best source for information for those who would like to adopt a stepchild is the clerk of court in the county where they intend to file the petition to adopt. The clerk knows the applicable State laws, whether a home study is necessary, and what the filing fee is. The family does not necessarily need an attorney to file the petition; they can file it themselves, especially if the adoption is not being contested by the other biological parent. If funds are available, it doesn't hurt to have an attorney do it or give advice.
If the other biological parent has not relinquished rights, it may be necessary for the State to hold a termination-of-parental-rights hearing, put a notice in a newspaper, or send a registered letter to the last known address of that parent and wait a specified amount of time. In some States the termination hearing is separate from the adoption hearing; in other States both can occur at the same time.
In some States and some counties there must be an adoption home study for a stepparent adoption, in others not, and in still others a home study can be waived at the judge's discretion. Sometimes a social worker at the court does the home study; sometimes the judge assigns it to the Department of Social Services, which usually does it at low or no cost; or sometimes it is assigned to a private agency, where there is a cost. For specific statute language, see Appendix III.
Co-guardianship allows a parent who, perhaps because of immaturity or a disability, cannot be an active parent, to retain custody of her children if a relative is able to help. In these cases, the court appoints a relative as co-guardian with the legal authority to parent the child. Courts may appoint more than one relative, giving children the support of a network of people. Although co-guardianship is available in every State under traditional guardianship laws, few people know about the option.
A fairly new form of guardianship that has been enacted in only seven States over the last few years is standby guardianship. This type of guardianship was developed for parents with a terminal illness who want to establish who will raise their children in their absence or during periods when they become incapacitated. This form of kinship care was primarily prompted by the needs of children destined to be orphaned by AIDS. It is a legal arrangement that permits a parent to stay in her children's lives until she dies without putting them into foster care. At her death or incapacity, the "standby guardian takes over; meanwhile, the children have gotten to know the new guardian and do not feel as though they are moving in with a stranger. Before such guardianships existed, terminally ill parents who wanted to plan for their children's future had to give up parental rights to another person or name a guardian in their will.
Myra's case exemplifies this new type of guardianship. Myra was diagnosed with AIDS in her late thirties and knew she had to plan for what would happen to her daughters, Fayette, 10, and Bianca, 6. After looking at her options, she settled on a standby guardianship plan that allowed her to retain parental rights as long as she was able, yet gave her the peace of mind of knowing someone would care for her children when she could not. The plan allowed Myra to give up custody of her children when she was too sick to handle them, but retrieve it when her illness went into remission. In Myra's case, she ultimately chose a relative as her standby guardian. This type of guardianship has been established as a legal option in seven States (see box). California offers its residents a similar plan with one modification: the parent and standby guardian must share major decisions about the child from the time the guardian is named, forcing parents to give up some of their parental rights immediately.
Credits: Child Welfare Information Gateway (http://www.childwelfare.gov)
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