Legal Guardianship and Child Custody

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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. Adults 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, but adoption is more permanent.

Who Can Be a Legal Guardian?

A legal guardian can be anyone over the age of majority who is capable of taking care of the child’s needs, including shelter, food, education, and medical care. Often, the court will make the determination of whether the adult applying to be a guardian is capable of adequately caring for the child.

How Can I Establish Legal Guardianship of a Child?

You can establish legal guardianship of a child by filling out the required forms in court to formally express your interest in obtaining guardianship. Once you have filed the petition, the court will set up interviews with you and the child to see if you are the right person to serve as a guardian for the child. The court may also order a background check to ensure that you are fit to be a guardian of a minor.

In the entire process, the court will use the “best interest of the child” standard to make all decisions regarding the child. After the court has reviewed all the material and related facts that has been presented to them, they will decide whether they should grant legal guardianship.

What Are the Differences 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, such as custody on weekends or over school vacations, 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 arrangements. 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.

What Are the Differences between Legal Guardianship and an Adoption?

A guardianship is similar to an adoption because both are legal relationships between a child and an adult that give the adult certain rights and obligations regarding the child. However, a guardianship does not sever the legal relationship that exists between a child and their biological parents. Instead, it co-exists with the guardian’s legal relationship with the child.

An adoption permanently changes the legal relationship between a child and their biological parents. Adopted parents become the legal parents of the child, and biological parents give up all of the parental rights that they have with the child.

What 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.

How Does Guardianship End?

There are several ways that legal guardianship can end:

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: 09-21-2015 11:50 AM PDT

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