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, 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 (18-21 depending on the state) 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.

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How Can I Establish Legal Guardianship of a Child?

You can establish legal guardianship of a child by filing a petition stating your interest in obtaining guardianship along with a filing fee. Once you have filed the petition, the court will evaluate if a guardianship is appropriate according to the “child’s best interest” standard. The court will gather facts, conduct interviews, and possibly request background checks before making its decision.

What Are the Differences between Legal Guardianship and Child Custody?

While child custody provides rights and responsibilities to the parent of the child, a legal guardianship provides similar rights to someone that is not the parent of the child. Both relationships require providing for the well-being of the child but the responsibilities of a legal guardian can be greater depending on the type of child custody. A guardian has the power to make legal decisions on behalf of a child, however, a parent with physical but not legal custody does not.

What Are the Differences between Legal Guardianship and an Adoption?

Both guardianship and adoption create 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.

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 if 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. 

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: 06-06-2017 02:15 AM PDT

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