CUSTODY, ADOPTIONS AND GUARDIANSHIP WHICH ONE IS THE RIGHT CHOICE FOR AN ORPHANED CHILD?

I think the best way to explain the differences among custody, adoption and guardianship involving a non parent is to give some examples.

Scenario one: The mother of a minor child died during birth, and the father married stepmother a year later. Stepmother is very much involved in the child's life and pretty much the only mother the child knows. Stepmother adopts the minor child a couple of years into the marriage. Several years later stepmother and father get divorced and are litigating custody. In this case both the father and stepmother have a close and loving relationship with the child. And because of the adoption, stepmother will be considered a natural guardian/parent of the child same as biological father. Their custody action is appropriate to establish their rights and obligations.

Scenario two: Same facts as scenario one but the stepmother never adopts the child. The stepmother is not considered a natural guardian of the child, and therefore she will be considered a third party in an action for custody. She will have to overcome father's constitutionally protected right to the exclusive care and control of his child. Stepmother will not be able to get guardianship or adopt the child because there is a fit and proper natural parent.

Scenario three: Same facts as scenario two but the stepmother and father are happily married. Father dies during the marriage but in his last Will and Testament (made before his marriage and never updated) he designated his sister (child's aunt) to be his child's guardian. The aunt files the appropriate guardianship petition though the Clerk of Court and subsequently the Clerk of Court grants her general guardianship of the child. Meanwhile, stepmother files a custody action against the aunt through Family Court. Who will prevail? In this scenario, the general guardianship trumps the custody action. The aunt will get custody of the child. The general guardianship gives the aunt the legal role as the child's parent. The stepmother should have petitioned the court to be a guardian of the child. However, the Clerk of Court has the ability to remove and replace guardians if necessary, so stepmother may still be able to petiton the clerk and be designated the child's guardian.

As you can see, if there are no legal parents for the minor child whether through death of the parents or their rights have been terminated, the best way to step into the role as the minor child's parent is to get a general guardianship, which is more comprehensive and provides greater legal status than a custody order.