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How Is Adoption Different From Other Types Of Custody Like Guardianship Or Legal Custody?


In North Carolina, the law automatically grants parental rights to the mother upon the birth of a child. If the parents are married at the time the child is born, the law also grants parental rights to biological father of the child. The parents automatically have the legal right to make all decisions regarding their child. Unfortunately, there are times when the custody of the child may be in question. For example, if paternity is challenged; one or both parents are judged unfit; or, the parents are deceased, the court must step in to determine who will have custody of the child.

Because North Carolina custody laws are complex and the facts and circumstances in a custody case are unique, determining custody can be complicated. The court will always seek to do what is in the best interest of the child during a custody dispute. It is in your best interest to consult a family law attorney for individualized legal advice.

Types of Custody in North Carolina

When discussing custody in North Carolina, most people refer to legal and physical custody. Legal custody refers to the right to make decisions affecting the child such as the child’s medical care, education, religious affiliation, and extra-curricular activities. Physical custody refers to with whom the child resides. Legal and physical custody are vested with the biological parents upon birth unless a court intervenes. Legal and physical custody is typically an issue in a divorce or paternity action.

Guardianship is also a form of custody; however, guardianship is awarded by the court to an individual other than the child’s biological parent. Guardianship is used when both biological parents are unfit, unwilling to care for the child, or deceased. A guardian has the legal right to make decisions affecting the child; however, it is not legal custody because the child remains under the jurisdiction of the court. The court retains oversight of the guardianship and can limit the decisions of the guardian if the court determines it is in the best interest of the child.

On the other hand, adoption is not a form of custody. In order for a child to be adopted, the court must terminate the parental rights of the parents, if the parents are living. Once the court terminates the parental rights of the biological parents, the court can grant the petition of the adoptive parents. The adoptive parents become the child’s legal parents under the law with the same legal rights as if they were the biological parents of the child. The child’s birth certificate is reissued with the adoptive parents as the “biological” parents of the child and all records are sealed.

Contact an Experienced Jacksonville Adoption Attorney

“Attorneys Who Aggressively Protect Your Rights”

The attorneys of The Trevor J. Avery Law Firm represent clients throughout Duplin County, Onslow County and the surrounding communities in all areas of family law including adoptions and custody disputes. Our family law attorneys understand the sensitive and important nature of the issues involved in these types of cases. We work diligently to protect the rights of the parents as we seek to do what is in the best interest of the child.

If you have questions about adoption in North Carolina or you need an experienced North Carolina custody attorney, contact our office at (910) 405-8459 or contact us online for a free case evaluation.