Difference in legal status between guardianship and adoption

Extracts for legal literacy News

Adopting a child into a family is called a family placement.

In accordance with the Family Code of the Donetsk People’s Republic, the following forms of placement of orphans and children deprived of parental care have been established, namely:

1) adoption;

2) guardianship or trusteeship;

3) foster family;

4) family-type orphanage;

5) institutions for orphans and children deprived of parental care.

Thus, adoption is a priority form of placement of children deprived of parental care. Adoption is allowed in relation to minor children and only in their interests, as well as taking into account the possibilities to provide children with full physical, mental, spiritual and moral development (Article 125 of the Code).

At the same time, guardianship or trusteeship is established for children deprived of parental care for the purpose of their maintenance, upbringing and education, as well as to protect their rights and interests. Guardianship is established for children under the age of 14, and trusteeship is established for children between the ages of 14 and 18 (Article 147 of the Code).

The main difference between adoption and guardianship is that, according to their legal status, an adopted child and his/her descendants in relation to adoptive parents and their relatives, and adoptive parents and their relatives in relation to adopted children and their descendants have similar personal non-property and property rights and obligations regarding to relatives by birth (Art. 139 of the Code).

Under guardianship/trusteeship, persons taking a child do not acquire the rights and obligations of the parents. Children in such forms of placement retain the status of an orphan or a child deprived of parental care.

Thus, during guardianship, the child retains all those relatives that he/she had before the moment he got into the family of the guardian. This means that a relative (grandmother, uncle, cousin, etc.) may appear in his/her life who wants to communicate with the child. And all these relatives have the right to claim to communicate with him/her (Clause 5 of Article 150 of the Code).

In addition, there are the following differences between the procedure for adoption and registration of guardianship when placing a child in a family:

– the adoption is carried out by the court at the request of the persons (person) wishing to adopt the child. Cases on the adoption of children are considered by the court with the obligatory participation of the adoptive parents themselves, the guardianship and trusteeship authorities, as well as the prosecutor (Article 126 of the Code);

The guardian or curator is appointed by the guardianship and trusteeship authority (Art. 38 Civil Code).

– the adoptive parent has the right to assign the adopter’s surname to the adopted child, as well as the name indicated by him/her (Article 136 of the Code);

Children under guardianship or custody retain their first and last name.

– secrecy of adoption of a child is protected by law. Thus, the judges who made the decision on the adoption of the child, or the officials who carried out the state registration of the adoption, as well as the persons who are otherwise aware of the adoption, are obliged to keep secrecy of the adoption of the child. It should be noted that when adopting a child under the age of one year, to ensure the secrecy of adoption, at the request of the adoptive parent, the date of birth of the adopted child may be changed (Articles 137, 141 of the Code).

When registering guardianship, the birth certificate contains information about the biological parents;

– adoption procedure for a child is issued for a permanent period.

At the same time, the transfer to guardianship is made for a limited period. Guardianship is established until the child reaches 14 years old, trusteeship – up to 18 years old.

– public assistance for children under guardianship or trusteeship, from 1 July 2021, for a child under 6 years old is 9,240.00 Russian rubbles, for a child between 6 and 18 years old – 9,800.00 Russian rubbles.

At the same time, when a child is adopted, the adoptive parents receive a one-time public assistance in the amount of 22,000.00 Russian rubbles.