Custody vs. Guardianship

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Most Common Family Law Issues:

What is Guardianship?

Guardianship and custody are both terms that refer to the legal rights to a child. Parents are guardians by default, but in the case of unfit or absent parents, another person is appointed guardianship. If a child’s parents are living, but unfit, the guardian will gain custody, but the parents maintain their parental rights unless they are relinquished or a judge suspends or revokes them. Guardianship is appointed in probate court. Guardians can make medical, educational, and other important life decisions on behalf of the child.

What is Child Custody?

Custody is granted by family courts in cases where there is a dispute about who the child will live with or spend most of his or her time with. Custody can refer to the agreement made by two parents who are divorcing or separating regarding where the child will live and who will take care of things for the child such as paying for expenses, medical care, and education. Custody can also refer to the decision made by a judge during a divorce judgment with mandated instructions on where the children are supposed to live during which parts of the calendar year.

What are the Important Differences?

Both custody and guardianship are determined by a court of law. There are different kinds of guardianships. Emergency guardianships and temporary guardianships are employed in unusual situations of heightened duress. The person who is under the guidance of a legal guardian is called a ward. When an adult has a mental or physical handicap, he or she might be assigned a legal guardian to act on his or her behalf.

Adoption is more permanent, but it is similar to legal guardianship. A guardianship can be terminated when a parent wishes to re-assert parental rights to have a relationship with his or her child. If the child has been appointed a guardian because the court felt the parent was unable or unfit to parent, the parent can petition the court to reconsider a request for custody. Custody can be terminated if a custody petition is filed in court and the court feels that staying with that particular parent is not in the best interest of the child.

Do I Need a Lawyer?

Yes. Custody agreements and guardian issues have longstanding implications and leave long-lasting marks on children. It is important to retain a family law attorney to represent your best interests in settlement talks and in court.

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Last Modified: 07-20-2016 02:48 PM PDT

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