Thursday, December 16, 2010

Guardianship vs. Adoption

Jane
Adoption has clear benefits for a child whose parents or extended family lack the ability to care for the child.  However, there are the gray areas--where parents may be unable to care for their child at the present time but with help can assume responsibility in the near future. Unfortunately, adoption  becomes the solution for the temporary problem. Guardianship can provide a way to care for a child until the parents are able to assume their responsibilities.  Of course, if that does not happen within a reasonable period of time, the guardian can institute an adoption proceeding based on the parents' abandonment of the child, thus assuring permanency for the child. 

In the case of older children, guardianship makes sense as well as the recent discussion from a Family Law list serve shows. An attorney posed this situation:

“Potential client’s daughter passed away this month leaving 2 year old child. Mother and father never married. Father is registered sex offender. Paternity established at hospital at birth, only time father saw child. Grandma would like custody of child, but also needs financial assistance from the state if possible to care for the child. State not involved yet and grandma currently has the child.”

An experienced family law attorney responded:

"Grandma needs to have herself appointed as Guardian for her granddaughter. AVOID ADOPTION [his emphasis] in this situation. Adoption will create needless practical, legal and financial confusion. Grandma should and needs to remain as 'Grandma.' Adoption will result in Grandma becoming the child's mother. This is undesirable as well as unneeded. In her mind and in her heart, Grandma will forever be Grandma and will never be ‘mommy’ (nor should she be). And child needs to grow up knowing who's who in the family. Mother died when child was two years old, and Grandma then became her legal guardian. Makes a lot more sense rather than having Grandma becoming Mother.”


Some background on guardianship may be helpful. A judge appoints a guardian to be responsible for the well-being of a ward because the ward cannot care for himself, either because he is a child or an infirm adult. The guardian assures proper care of the ward and prudent management of his money, if any. The ward keeps his name and identity.

The guardian reports to the court on a periodic basis. If the guardian is not doing his job, the court appoints someone else to be the guardians. When the need for guardianship no longer exists, the court terminates it.

One reader noted that Robin (as in Batman and) was the only person she had ever heard of referred to as
"ward." Actually, wards appear prominently in many works of literature including Bleak House, The Wizard of Oz, My Cousin Rachel, The Prime of Miss Jean Brodie, and The Girl with the Dragon Tattoo.

19 comments:

joy said...

That makes a lot of sense for that situation. I often forget how infant domestic adoption is really a small part of adoption as for some reason infant/domestic is treated as the norm.

Anonymous said...

The origins of the prohibition against adoption in Islam can be found in the story of Muhammad's marriage to Zaynab bint Jahsh, who Mohammed married after she was divorced from his adopted son Zayd.

For another perspective on kafalah, see "Without a Home: Social stigma and child welfare laws prevent abandoned children in Syria from becoming part of families", by Muhammad Atef Fares:
Majdi, 21, lives alone in a small room in Rukn el-Din. On a recent afternoon, he recalled oneof his earliest memories, from about age six. It is of a woman telling him: "Keep quiet or I'll send you back to the orphanage."
The woman was his foster mother. She and her husband brought him to live with them from Dar Zayd ibn Harithah in Masaken Barzeh, a home for abandoned children, and he stayed with the couple for four years. Though he was never mistreated, he always felt unwanted, he said. Dar Zayd paid the family to care for Majdi until his foster father died, at which time he returned to the centre.
Abandoned children in Syria often end up like Majdi: in a precarious state of limbo, never fully part of a family. The law prohibits these children from being adopted, so they are raised in institutions or end up in impermanent foster care.
"Syria bans adoption," Majdi said. "However, to be taken in by a foster family was better than staying in a military-like orphanage. I was not fully happy with my new family but at least I got better care."
Law and Islam
The country's personal-status law, which is derived from Islamic law, prevents both orphans, or children whose parents are deceased, and abandoned children, or children of unknown parents, from being legally adopted into a family.
Sheikh Ali Abdul Qadir, a lecturer on Islam and an imam at a mosque near Damascus, explained that Islam forbids adoption because it breaks the lineage of ancestors and rights of inheritance.
"Adoption can never be a substitute for the actual bearing and rearing of an own child," Abdul Qadir said. "If adoption were allowed, more children would be abandoned. For instance, a mother would be more inclined to leave her unwanted son in front of a mosque in the knowledge that he would be taken into a good family and treated as their son."
Islam offers an alternative arrangement for abandoned children called kafalah, similar to the western foster-care system, in which an abandoned child can live with a family while retaining his or her family name. He or she can also be sponsored by a family but remain living in a centre for abandoned children.
Orphans, on the other hand, cannot be taken into foster care because they still have relatives who are legally obliged to look after them. However, many of these children nevertheless end up in orphanages when their families are unable or unwilling to look after them.
Permanent prejudice
According to Islamic doctrine, orphans and abandoned children should be treated with dignity and respect.
In practice, however, both are stigmatised, though for different reasons. Orphans who live in one of the country's many orphanages are pitied because they have been let down by the extended family that should be caring for them.
Abandoned children are even more heavily stigmatised as they are assumed to be the offspring of extra-marital relationships. They are often called ibn haram (son of adultery), a derogatory term for abandoned children used as a general insult – the Arabic equivalent to 'bastard'.
"Our society confuses me," Hana'a Barqawi, a lecturer of sociology at Damascus University and a former volunteer in Dar Zayd, said. "It helps [abandoned children] out of religious duty but it also looks at them as if they have committed a crime just by being born."

Read more at: http://www.syria-today.com/index.php/focus/12265-

Haigha

osolomama said...

It must be pointed out that in Bleak House, Esther had two guardians—one nice and one awful. The bad one (Miss Barbary) was actually the sister of her original mother, Lady Dedlock, though Esther was raised to believe Miss Barbary was her godmother. Lest anyone surmise that guardianship necessarily resulted in its time in less secrecy and more desire to keep children attached to their birthparents, I offer the following quotation:

Dinner was over, and my godmother and I were sitting at the table before the fire. The clock ticked, the fire clicked; not another sound had been heard in the room or in the house, for I don't know how long. I happened to look timidly up from my stitching, across the table, at my godmother, and I saw in her face, looking gloomily at me, "It would have been far better, little Esther, that you had had no birthday; that you had never been born!"

I broke out crying and sobbing, and I said, "O, dear godmother, tell me, pray do tell me, did Mama die on my birthday?"

"No," she returned. "Ask me no more, child!"

"O, do pray tell me something of her. Do now, at last, dear godmother, if you please! What did I do to her? How did I lose her? Why am I so different from other children, and why is it my fault, dear godmother? No, no, no, don't go away. O, speak to me!"

I was in a kind of fright beyond my grief; and I caught hold of her dress and was kneeling to her. She had been saying all the while, "Let me go!" But now she stood still.

Her darkened face had such power over me, that it stopped me in the midst of my vehemence. I put up my trembling little hand to clasp hers, or to beg her pardon with what earnestness I might, but withdrew it as she looked at me, and laid it on my fluttering heart. She raised me, sat in her chair, and standing me before her, said, slowly, in a cold, low voice - I see her knitted brow and pointed finger:

"Your mother, Esther, is your disgrace, and you were hers. The time will come - and soon enough - when you will understand this better, and will feel it too, as no one save a woman can. I have forgiven her;" but her face did not relent; "the wrong she did to me, and I say no more of it, though it was greater than you will ever know - than any one will ever know, but I, the sufferer. For yourself, unfortunate girl, orphaned and degraded from the first of these evil anniversaries, pray daily that the sins of others be not visited upon your head, according to what is written. Forget your mother, and leave all other people to forget her who will do her unhappy child that greatest kindness. Now, go!"

Guardianships in English and American literature in the prior two centuries were all about the societies they functioned within, often rather closed societies with a rigid hierarchy. There was no philosophy of children's rights or anything child-centred. It is fine to recommend guardianships in some situations today but let's not kid ourselves about how great some wards had it.

Campbell said...

osolomama thank you for the reality check.

Impelling.

maryanne said...

Interesting comments on Islam and Bleak House. Things are often less clear-cut and simple than they seem on the surface.

On the literary issue, In the Wizard of Oz, Dorothy lived with her aunt and uncle but I don't think any legal arrangement was specified. In the past there were lots of informal arrangements of kids living with relatives with no court involvement. It was a different world.

What was common practice a century or more ago is not necessarily something that would work today. As Osolo said, there was no child welfare and nothing was child-centered. Don't sentimentalize an era when children were as clearly just property as in the most crass adoption today. The property was just disposed of differently.

In more current events, I had a friend who was given to a neighbor when her mother died. This was in the late 40s. She was the youngest of 4 at 6 months. The older two went to an aunt in another state, the younger two to the neighbor. It was an ok arrangement, but when she was 14 her father, who had stayed in touch, demanded she come live with him, again in another state, basically to be a housekeeper. She was not happy to do this but had no choice.

Nobody disputes that guardianship can work for some cases, like the grandma or other relative caring for the child, or in older child adoptions when it is what the child prefers. There is nothing wrong with guardianship being one of the options available for children in need of care. The problem is the proposal that guardianship replace ALL adoption which is what is on the table here.

Anonymous said...

Sorry. My comment shouldn't be here.
I meant to put it under the "Koran gets it right: Prohibits Closed Adoptions", but my computer's messed up and I had difficulty posting, all of which confused me.
But I guess it's not entirely off topic.
Hope not anyway.

Haigha

Robin said...

I feel like I have found my home on the web at FirstMotherForum. The reason: It is so overwhelmingly obvious how much you first mothers love and care about your relinquished child/ren. And for the concern you show for all children who for one crummy reason or another cannot be raised in their biological families. As one of the unfortunate ones who was the victim of an unnecessary adoption, I just want to say "Thank You".

Lorraine Dusky said...

Robin....thank you for your kind words of appreciation. Out there in the real world we sometimes get beat up a lot. Or if not that, feel silenced because as a friend of mine told me yesterday, out there in the world adoption is simply seen as "a good thing," without caveats. Knowing me, she said, has opened her eyes to the whole other side of it.

Anonymous said...

The origins of the prohibition against adoption in Islam can be found in the story of Muhammad's marriage to Zaynab bint Jahsh, the divorced wife of Mohammed's adopted son Zayd.
Before the prohibition Zayd was known as Zayd ibn Muhammad, and after, as Zayd Ibn Harithah.

Here is another perspective on kafalah, as practiced in Syria:
"Without a Home" by Muhammad Atef Fares

Majdi, 21, lives alone in a small room in Rukn el-Din. On a recent afternoon, he recalled oneof his earliest memories, from about age six. It is of a woman telling him: "Keep quiet or I'll send you back to the orphanage."The woman was his foster mother. She and her husband brought him to live with them from Dar Zayd ibn Harithah in Masaken Barzeh, a home for abandoned children, and he stayed with the couple for four years. Though he was never mistreated, he always felt unwanted, he said. Dar Zayd paid the family to care for Majdi until his foster father died, at which time he returned to the centre. Abandoned children in Syria often end up like Majdi: in a precarious state of limbo, never fully part of a family. The law prohibits these children from being adopted, so they are raised in institutions or end up in impermanent foster care."

Read the rest of the article at:
http://www.syria-today.com/index.php/focus/12265-

Robin said...

I know 2 people who had guardians, one as a child and the other into adulthood due to a mental disability. However, both were totally encased within their bio-families and there was no need for adoption. Guardianship does have its place in certain circumstances. It seems that some people want to totally abolish adoption and others (myself included) liken guardianship only to a kind of limboland where the child is neither fish nor fowl.

joy said...

And the good news is---adoption is a thriving industry and the rush to quell these small dissenting voices is not even necessary.

We are in absolutely no danger of permanent guardianship replacing adoption nor the muslim religion gaining widespread acceptance among westerners and being elected to the United States congress.

Whew! We can all relax and enjoy adoption.

Lorraine Dusky said...

Joy, aside at the end made be laugh. ;)

Yes. we are not in danger of losing adoption any time soon. I am reminded of that every time I take a walk downtown and look at the kids--and their parents. I know I must be strange (among the population) but now when I see a child, I automatically look to see if there is any resemblance (or even a shared race) between parent and child.

Anonymous said...

LMAO, Joy. Thanks for lightening this up :)

Interesting how I see white parents walking with their Asian children but I never see Chinese-American parents walking with their caucasian children. Hmmmm

Robin said...

LMAO, Joy. Thanks for lightening this up :)

Interesting how I see white parents walking with their Asian children but I never see Chinese-American parents walking with their caucasion children. Hmmmm

maryanne said...

Nobody here thinks we are in danger of losing adoption,or replacing it with guardinahip, nor do I think the "small dissenting voices" are in any danger of being "quelled". What any of us say here on either side changes nothing and matters little. We can all have our say in our little adoption reform world, but it goes nowhere but around and around.

What does matter is presenting ideas like replacing adoption with guardianship to the real world. If this is seen as our agenda, it can cause people to dismiss the many reasonable things we have to say about real abuses in the adoption system and some ideas to fix at least some of it.

Robin said...

I agree with you, Maryanne. I find on my side of the equation that many adoptees are still drinking the "Put up, and shut up, your parents gave you away, you were raised by genetic strangers. Be grateful" Kool-Aid. Adoptees are known for being people pleasers.

I agree that presenting ideas that will get us tossed out of the ballpark will probably not get us anywhere. But some other movements like the civil rights movement, the womens movement have had to be pretty extreme (at least for the time period) to get anywhere.

Sunday said...

Guardianship is handled in probate court, like a property matter, as this case (http://caselaw.findlaw.com/mi-supreme-court/1418205.html) argued by my sister-in-law for the natural mother before the Michigan Supreme Court proves; guardianship has its pitfalls for natural parents and children.

Once a child has been relinquished for guardianship, voluntarily, and temporarily it is not always so easy to for the relinquishing parent to regain custody. The courts tend to look at even the “temporary” “voluntary relinquishment of a child, as child abandonment. I would hate to see anyone sign over guardianship of their child without the clear understanding of it and its ramifications.

And to the child, abandonment fells just like abandonment, no matter what adults call it, or chose to justify it.

As always is my stand, the best interests of the child always outweigh the interests of ANY adult. Children should not have to wait around endlessly for their natural parents to get it together enough to raise them. On the other hand children, who have willing and capable parents, have a right to be raised by them.

maryanne said...

It is problematic to compare adoption reform to gay rights, civil rights, women's rights, because the adoption reform movement is comparatively so small and specialized. Yes, there are millions of people connected in one way or another to adoption, but only a small factions of them search, and an even smaller faction join and stay committed to reform groups.

If there are only a few of us, and the loudest are the extremists, we just get dismissed. Our issue is not one that many people affected are going to put any effort into, for a variety of reasons. Some think things are fine as they are, many are uninformed, indifferent, or ambivalent. Putting ourselves out there as extremists is not like being the Black Panthers or Radical Lesbian Feminists, because there are not millions of more moderate people backing the cause.

Anonymous said...

Blogger must really be playing up. Perhaps it has pre-Christmas anxiety, because my accidentally included comments are out of sequence anyway. The last post I sent (trying to explain what happened) isn't published last as it should have been, and the time recorded on it is wrong.
Oh, and I just noticed for the first time the note about long comments. Duh! That could have saved me a lot of trouble if I'd seen it before.

But to get back to the subject in hand, guardianship can be a important alternative to adoption under particular circumstances, including the kind of situations to which Jane and Robin have drawn attention.
France has a form of guardianship called 'simple adoption' that is being considered for implementation in Quebec. However, it is not intended to replace full adoption.

Here is some information on 'adoption simple':
http://www.notaires.fr/notaires/en/page/simple-adoption?page_id=699
"Under French law, there are two types of adoption: simple adoption and full adoption and, if the person does not have French nationality, international adoption to which special rules apply. Contact your notaire to discuss the various ways of adopting and he/she will explain the legal and tax consequences.
Simple adoption creates a new parental bond between the adopter and the adopted child but does not cancel parental bonds between adopted children and their biological family. With simple adoption, adopted children have two families. Children adopted by simple adoption (and their children and grandchildren) inherit from both families. Adopted children add the name of their adopters to their own name. Provided the judge agrees, adopted children may even bear only the name of the
adopter if they so request. Simple adoption may be applied for irrespective of the age of the adopted child.
If the children to be adopted are over thirteen, their consent is required but they cannot retract once they have agreed. If they are underage (even minors of full age and capacity), their parents’ approval is also required. People of full age no longer require their parents’ approval and may all be adopted by simpleadoption, just like all underage children who fulfil the conditions for full adoption. Judges may cancel simple adoption at the adopter’s or adopted child’s request on serious grounds (for example chronic alcoholism, misconduct, extortion, ingratitude, etc). It is possible to begin with simple adoption and later ask to change to full adoption if the necessary conditions are met.
The adoption procedure is often long and difficult. Contact your notaire to discuss the various ways of adopting and he/she will explain the legal and tax consequences."

The UK has a category called special guardianship.
Special guardianship orders are intended to meet the needs of children who cannot live with their biological parents and for whom adoption is inappropriate, such as older children who do not wish to be legally separated from their families or the situation where a child is being cared for on a permanent basis as members of the child's wider family. It is also intended to be used in cases where a child from a particular ethnic or religious community (where cultural differences with adoption make adoption orders less likely to be honoured), as well as situations where an unaccompanied child asylum seeker needs a secure permanent home, but still maintains strong attachment to family abroad.

Haigha