Legal Guardianship and Child Custody
What is a Legal Guardianship?
A legal guardianship is a relationship established by the court where one person acts for the benefit and protection of another person. A person receiving the services of a legal guardian is called a “ward”. The ward is usually a child or minor whose parents are no longer capable of raising them, usually due to death or incapacity. Persons with mental or physical handicaps may also be appointed a legal guardian.
There are several different types of legal guardianships, such as temporary guardianships, emergency guardianships, and adult guardianships. However, in a family law context, guardianship almost always refers to non-parental parties who assume legal responsibility for a child.
In many cases a legal guardianship does not end an existing parent-child relationship. That is, the parent can request the court to end a guardianship if it is in the child’s best interest. Adoption is similar to legal guardianship except that adoption is more permanent.
What is the Difference Between Legal Guardianship and Child Custody?
Child custody is granted to one or both parents of the child. In contrast, a legal guardian is not the parent of the child, and is usually a close relative of the child or parent.
In general, legal guardianship involves a greater range of responsibilities for the guardian. This is because child custody can either be physical or legal. It is common for a non-custodial parent may have physical custody of the child (for example on weekends) but not legal custody.
This means that the non-custodial usually cannot make certain legal decisions on behalf of the child. On the other hand, a legal guardian has the authority to make such decisions for the child.
Also, legal guardianships can be more durable than child custody. A legal guardianship usually terminates only upon the death of the guardian or when the child reaches the age of majority. In contrast, child custody orders are frequently subject to modification, especially if there are major changes in the life of either parent.
Can a Legal Guardianship be Established if a Parent Already has Custody of the Child?
If a parent has legal custody of a child, a court usually will not intervene and appoint a legal guardian. It is the practice of courts not to interfere in a child/parent relationship if the custody arrangement is in the child’s best interest. Only in the event that both parents can no longer care for the child will a legal guardianship be considered.
A newly created legal guardianship may affect any visitation schedules from a previous custody arrangement. For example, suppose that a couple divorced, with the mother receiving full custody of the child and the father receiving weekend visitation rights.
If the mother becomes incapacitated and a legal guardian is appointed, the court will likely have to revise the father’s visitation rights. The introduction of the new guardian may raise additional concerns, especially if the guardian lives in a different place.
Thus, the interaction between child custody and legal guardianship can often be complex.
If it happens that child custody issues and guardianship concerns overlap, all factors must be reviewed in light of the child’s best interests.
Do I Need a Lawyer for Legal Guardianship Issues?
The laws governing legal guardianship can often be complex, especially if child custody issues are also involved. If you have any legal concerns involving legal guardianship, you may wish to contact a family law attorney. Your lawyer can assist you in legal guardianship proceedings, and can represent you in court if any legal claims arise.
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Last Modified: 11-16-2012 02:56 PM PST
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