“Adoption, foster care or foster care? What are the differences for the child and for the parents? Legal and psychological aspects." Text transcript of the webinar

Basic Concepts

It is necessary to immediately make a reservation that these concepts are of a completely different nature, despite the fact that both of them have a single goal - to place a minor, left without parental care, in a family.

The following options exist:

• adoption;
• guardianship and trusteeship;
• patronage;
• foster family.

Guardianship and trusteeship

In this case, we are talking about accepting the baby into the family. It can be issued up to 14 years of age. In this case, the trustee bodies exercise constant control over the living conditions of the ward. More often than not, relatives choose this option. After the age of 14, guardianship is issued.

The concept of guardianship is legally enshrined in Chapter 20 of the Family Code of the Russian Federation. Often this is an intermediate stage before the adoption is finalized. Taking custody of a minor is much simpler and requires fewer formalities than adoption. Below we will look at the details of the design of both forms.

Adoptive family

Involves raising a child at home with a teacher. It differs from guardianship in the following ways. It is usually issued when it is impossible to formalize adoption or guardianship. For the pupil, this is a kind of replacement for being in an orphanage. One parent usually raises several children, but from a psychological point of view this is the best alternative to an orphanage. This form is regulated by Chapter 21 of the Family Code of the Russian Federation. For parents, this is work. They even receive wages for her, as provided for in the foster family agreement.

Types of child custody

Regardless of the type of guardianship, the procedure for registering guardianship is identical. The citizen must prepare documents and submit an application to the guardianship department. Guardianship is appointed by resolution of the local government body.

In the Russian Federation, guardianship and trusteeship are divided into the following types:

Depending on the age of the ward;

1. minors;
2. incompetent;
3. minor parents.

Separately, it is necessary to highlight the option when the parents of the newborn are not endowed with full legal capacity. In this case, the appointment of guardianship will also be required.

Guardianship of a minor is assigned if the parents are unable for good reason or do not want to fulfill parental responsibilities.

Valid reasons include:

• death;
• recognition as dead;
• recognition as missing;
• search;
• serving a sentence in prison;
• disease;
• deprivation of legal capacity.

If a parent does not want to fulfill responsibilities in relation to the child, then before appointing guardianship it is necessary:

• deprive him of parental rights;
• limit his parental rights.

Thus, the guardian of a minor, in fact, replaces his blood family.

Incompetent

From the moment a citizen reaches 18 years of age, he is automatically granted full legal capacity. That is, he can use civil rights and bear civil responsibilities in full.

In exceptional cases, the law provides for the possibility of depriving an adult of legal capacity. Among them:

• a mental disorder in which the patient cannot assess the consequences of his actions and threatens the life and health of other citizens;
• alcohol or drug abuse that has led to a mental disorder.

Legal capacity can be restored in court. In this case, guardianship is canceled.

Minor parents

If the mother and father of the newborn are under 18 years of age, then it is advisable to appoint guardianship over him. In accordance with Art. 62 of the RF IC, a minor mother and father can independently perform parental responsibilities if they have reached 16 years of age.

But if their age is under 16 years, then the appointment of a guardian is required who will protect the children's rights on an equal basis with his parents.

Guardianship is revoked when the mother or father reaches 16 years of age.

Depending on the status of the ward;

When assigning guardianship over a minor child, his status matters.

In 2020, the following options stand out:

• parent child;
• identified minor
• a child granted the status of being left without parental care.

Depending on the status, the procedure for registering guardianship and the list of documentation that must be submitted to the authorized body differ.

Temporary (at the request of parents)

Art. 13 Federal Law No. 48 of 2008 establishes the possibility of obtaining guardianship for children whose mother and father are temporarily unable to perform their duties.

Features of guardianship upon application:

• parental rights and responsibilities are retained in full;
• the resolution must contain a validity period;
• issued if there are compelling reasons (studying in another city, business trip, working on a rotational basis);
• the candidacy of the guardian is chosen by the parents;
• the consent of both mother and father is necessary;
• the child does not receive the status of being left without parental care;
• The guardian does not receive payments or benefits.

Preliminary

Art. 12 Federal Law No. 48 of 2008 establishes the possibility of registering guardianship over a minor who has just been identified. Identification means obtaining the status of a child left without parental care.

Within 30 days from the date of assignment of status, the child’s relatives or strangers can obtain guardianship on preferential terms. This option is necessary to avoid placing the minor in a shelter while preparing documentation for permanent guardianship. Peculiarities:

• is drawn up according to 3 documents (a statement from the guardian, an inspection report of living conditions and a civil passport);
• valid for 6 months (in exceptional cases, additionally extended for another 2 months);
• the guardian does not receive the right to dispose of the ward’s property; cannot be assigned on a reimbursable basis.

At the end of preliminary guardianship, permanent guardianship must be appointed.

Constant

Permanent guardianship is a form of family arrangement for a child deprived of parental care. It is valid until the student reaches 14 years of age. After which it automatically goes into guardianship. The guardian fulfills his duties until the pupil reaches adulthood.

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Depending on the payment to the guardian;

Gratuitous

The law provides for the payment of benefits for the maintenance of a minor pupil.

The needs of the incapacitated ward must be met through his pension. The funds are transferred to the nominal account of the guardian. But these payments must be spent in the interests of the ward. The legal representative must report annually on their expenditure.

The report is submitted to the guardianship department by February 1 of each year.

Paid

Paid guardianship is appointed under an agreement between the citizen and the district guardianship department.

The terms of the contract provide for the payment of a monthly fee to the guardian.

For representatives of minors, the amount is established by regional legislation. For representatives of the incapacitated, the amount is set individually, but not more than 5% of the ward’s monthly income. The recipient is not accountable for spending the funds.

Depending on the number of subjects.

The legislation provides for the possibility of participation in family education of several entities:

• guardianship over several wards;
• guardianship of one ward by several guardians.

Multiple guardians

Art. 10 Federal Law No. 48 of 2008 provides for the possibility of appointing 2 or more guardians to one ward. This decision is made by the guardianship department in the interests of the incapacitated or minor ward.

Representatives can independently share powers in relation to the pupil or ask specialists from the guardianship department to do so. If guardianship is appointed on paid terms, the remuneration is divided between the representatives in any proportion (at their request) or transferred in full to one of them.

Several wards

One guardian can be a representative of 2 or more minors and incapacitated citizens. The legislator recommends the simultaneous transfer of no more than 8 children (including blood children) to a family.

The maximum number of incapacitated wards is not established by law.

The difference between guardianship, trusteeship and foster family

Many people who want to adopt a child wonder what form to choose. In our article we will look at the differences between these forms and clarify when it is better to formalize guardianship, when it is guardianship, and when it is a foster family.

As for the difference between guardianship and trusteeship, this has already been discussed above. Guardianship can be granted until the age of 14. After this moment, guardianship is formalized.

A more complex difference from a foster family.

The essence of the difference lies in the legal status of the person who is ready to take care of the pupil:

• in case of registration of guardianship over a child, he is accepted as a foster child, but can have contact with relatives, including parents;
• the guardian can receive certain benefits from the state, as well as assistance in the development of the ward;
• and upon reaching the age of majority, this ward can receive his own living quarters, if there is none.

It should also be noted that this form is different from adoption. The guardian family in fact performs the same social functions. However, the law does not impose such strict requirements on the guardian as on the adoptive parent. When adopted, a child is accepted as a natural child, he receives all the rights of a native, including the right to inherit after his adoptive parents. This, in turn, imposes a huge responsibility on parents with all the ensuing rights and responsibilities. When making a decision about adoption, it is necessary to understand how an adoptive parent differs from an adoptive parent.

Contact with biological parents

This is a fundamental difference.
Adoption contains an institution of secrecy. This means that no unauthorized person should have access to adoption information.

There is criminal liability for such disclosure. Accordingly, the goal of adoption is the complete integration of the child into the adoptive family. He should perceive his adoptive parents as his own.

But with guardianship there are no such conditions. Guardians can communicate with their biological parents. Nobody has the right to limit them in this. Moreover, parents have the right to demand termination of guardianship. If they have taken measures to socialize and have been restored to parental rights, then guardianship will be terminated. The child will be returned to his natural parents.

Differences in rights and responsibilities

By law, a guardian or trustee is subject to stricter control by the guardianship authorities. Any actions of the guardian can be appealed.

• A guardian does not have the right to restrict his ward’s communication with relatives, but can forcibly remove him if his relatives are holding him without legal grounds.
• The guardian is responsible for the upbringing and development of the child. The guardianship authority gives recommendations on methods of development and education, but in general the guardian independently decides which methods to use. In any case, they must correspond to the interests of the child.

Part 2 of Article 153 of the Family Code of the Russian Federation gives adoptive parents the same rights and responsibilities as guardians or trustees. The difference, perhaps, is in the fact that they receive a monetary reward for adopting a child.

Device forms

When the ward reaches 14 years of age, guardianship changes to another form - trusteeship. Although the trustee bears the same responsibilities as a guardian, the scope of property rights is significantly reduced.

If the guardian independently (with the consent of the district guardianship department) decides on the disposal of the pupil’s property, then the trustee can only give his consent to the transaction.

A foster family is a paid form of guardianship. This means that the foster parent performs his duties professionally (with receiving earnings and crediting work experience).

At first glance, guardianship and foster care are one and the same thing. But in reality, the forms of the device have a number of differences.

Important! We are talking about placements exclusively for orphans and children deprived of parental care. The information does not apply to guardianship at the request of the parents (with the mother and father retaining parental rights).

Legislative regulation

• The main document from which all concepts (Article 2), rights and obligations and other issues arise is Federal Law No. 48 “On Guardianship and Trusteeship”, as amended on December 31, 2017.
• The Civil Code defines all the requirements that apply to guardians.
• The Family Code regulates the specifics of guardianship registration.
• The list of diseases that do not allow the registration of guardianship is presented in Decree of the Government of the Russian Federation No. 117 of February 14, 2013.

Differences in the registration procedure

The main distinguishing feature of a foster family is the registration procedure. Guardianship is formalized through the guardianship and trusteeship authorities. When a child ends up with adoptive parents, an agreement is concluded between them and the guardianship authorities.

For foster parents, raising and caring for a little person is their main activity. And of course, for this they receive a monetary reward. Foster parents have no more than eight pupils. Only one ward can be transferred to a guardian. The exception is brothers and sisters. According to the law, it is impossible to separate such children, except in cases where this is done in their interests.

Family formation

The law of the Russian Federation prescribes the regulations according to which a foster family is formed. You can find it in Art. 152 SK. A foster family is created on the basis of an agreement signed by parents and guardianship authorities. The content of the agreement is based on Article 153 of the RF IC. The agreement states:

1. Responsibilities of parents. This point implies organization of the child’s life, support, respect and help.
2. Responsibilities of guardianship authorities. The foster family is constantly monitored. The family has the right to receive payments, for example, a lump sum for each adopted child. Additionally, parents receive monthly rewards for each child under 10 years of age. Guardianship authorities must also provide medical support to the adoptive family.
3. Information about the adopted child and his biological parents.
4. Duration of the contract.

Most often, the child stays in the family until he reaches adulthood, but there are cases when the contract is drawn up for a certain time. The grounds on which the contract may be terminated are specified in Art. 153 SK:

• adoptive parents can no longer care for the child because they have health problems or financial difficulties;
• if violations of the child’s rights or abuse are observed in the foster family;
• the conditions specified in the contract are violated.

Each of these points may lead to termination of the agreement earlier than the specified period.

Worth knowing! If adoptive parents intend to take in a child who has health difficulties, for example, a disability, then a place in the house must be specially equipped for him.

To form a foster family you will need a certain package of documents:

• certificate from the place of employment of the adoptive parents (the position, salary and characteristics must be specified);
• document on family composition;
• documents that confirm that the house where the adoptive parents live belongs to them;
• certificate of good conduct;
• Marriage certificate;
• autobiography written in a free style;
• written consent of everyone who lives with the parents.

Guardianship and trusteeship authorities are often asked the question: “Is it possible to transfer from guardianship to a foster family?” According to the law, this is impossible, since these are two different family units, but in Prakrit it happens differently. Converting documents from guardianship to foster care will be problematic. It is possible that you will have to go to court to solve the problem.

When collecting documents, you should remember that some papers are valid for six months. Therefore, you should think through the procedure in advance. The best assistant for a foster family is the guardianship authorities. It is necessary to interact with legal representatives, and then the process of forming a foster family will go faster.

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What to choose – guardianship or foster family

If you decide to foster a child, you will first of all be faced with the question of what form the child will be placed in a family. If adoption for some reason is impossible or undesirable, the choice most often occurs between registration of guardianship and foster family. It should be noted that there is also such a form as patronage. This is closer to foster care and applies to children whose status has not yet been determined.

The patronage is also controlled by the competent authorities. Often this is a transitional form before guardianship, guardianship or foster care. It is difficult to say which form of accepting a child into a family will be the best and will be suitable for you. Psychologists say that the foster family option is the more preferable form, since adaptation among other children is easier. But at the same time, the guardian or trustee is more free in his actions regarding the upbringing of the child and is subject to less control from special authorities.

In any case, the choice is yours, but you must remember that whatever form of device you choose, it will be better for the baby than being in an orphanage or shelter.

Is it possible to adopt a child after foster care?

Often, the guardianship sooner or later has a question about whether it is possible to adopt the ward. The law allows such practices. However, the issue of adoption will be decided by the court. To adopt a child, a guardian must collect and provide the court with a list of documents provided for in Chapter 19 of the Family Code of the Russian Federation.

As practice shows, courts easily agree to adoption by guardians of children under guardianship. From the age of ten, the adoption consent of the person being adopted is also important. During the court hearing, the judge asks the child if he understands what is happening and if he agrees to the adoption.

Difference in benefits and benefits

Let's take a closer look at the issue of payments for guardians and adoptive parents. As a general rule, guardianship and trusteeship are provided free of charge. However, sometimes there are exceptions. In certain cases, the guardianship and trusteeship authority may enter into a paid guardianship agreement with the guardian. The remuneration is paid from the funds of the ward, third parties or the budget of a constituent entity of the Russian Federation.

For conscientious guardians, another benefit is provided - the opportunity to use the property of the ward, including living quarters, in their own interests, but subject to a number of conditions. As for adoptive parents, as mentioned above, they receive remuneration and wages. Its size must be reflected in the contract. In addition, there are certain social support measures for adoptive families.