The court grants legal custody if there is a dispute regarding where a child should reside. For instance, in cases of divorce or separation, a custody agreement could determine things such as which house a child will live in and how much of their time will be spent there.
Terms of a custody agreement can also define other aspects of care, including but not limited to medical and education expenses. Additionally, the order may have other financial obligations and shared living arrangements.
On the other hand, legal guardianship is granted by the court if someone other than a biological parent will care for the child. It provides the adult the right to care for a minor. Parents assume guardianship by default, but in cases where a parent is absent or unfit, the court may step in and select someone else for the role.
Depending on the situation, biological parents may retain parental rights even if someone else is chosen as a guardian. However, a judge can revoke or suspend these rights in extreme cases. If biological parents pass away, a guardian could also be granted custody.
What Decision-Making Power Do Custodians and Guardians Have?
As a custodian or guardian, your obligation or duty is to make decisions about the well-being of a minor. The extent to which you have decision-making power can vary depending on if it is custody or guardianship. Legal custody implies that you have the authority to make all child welfare decisions.
This can include decisions regarding education, financial matters, medical care, food, housing, other basic needs, and legal rights. If you have guardianship, you can act for the benefit of a minor, also known as “the ward.” But, guardianship can be somewhat limited regarding “big decisions.” Usually, a guardian will make the “day-to-day” decisions regarding care and welfare.
Who Appoints a Custodian or a Guardian?
You may nominate a guardian for your child or children as part of your Estate Plan. Doing so implies that if you cannot care for your child, a judge will review your nomination and assign guardianship. Most often, courts will uphold a parent’s wishes, but there are cases where a court may override a parent’s choice and appoint someone else to care for the child.
How Long Does a Guardianship Last?
If biological parents are living, guardianship is often temporary. But a court may grant permanent guardianship over a ward if parents have passed away. In this scenario, guardianship typically lasts until a minor is 18 years old. There are a few reasons guardianship could terminate before the 18th birthday.
This could include joining the military, marriage, entering a registered partnership, and a guardian no longer willing or able to carry out their duties. Guardianship of a ward may be selected in cases where the adult cannot care for him or herself due to incapacitation or a disability. There are a few requirements for guardians.
Most are common sense, such as:
- Be 18 years of age;
- Be of sound mind;
- Not be a felon and;
- Reside within the US or be a legal resident.
Who Appoints a Custodian or a Guardian?
While you can make your desires known on who you choose to raise your child, if you cannot, it is a judge’s discretion to formally appoint a custodian or guardian based on the child’s best interest.
Appointing a guardian is a crucial part of your estate planning process. If you pass away or are incapacitated, if you have nominated a guardian to take your place, you can feel confident your child will be cared for in the way you envision.
What Are the Differences Between Custody and Legal Guardianship?
Family law is difficult to grasp, and when it comes to child care, the legal definitions can be confusing. Many people mix custody with guardianship even though the two terms describe different living situations.
The key difference is the child’s parentage: custody describes a parent’s care of a child, in contrast with legal guardianship, which is granted to someone not the child’s biological parent. In some situations, a child may be under the guardianship of an individual while remaining in the custody of their parents to some degree.
What Is Legal Guardianship?
The main role of a legal guardian is to act in the child’s best interests when the child’s parents cannot do so. Legal guardians are usually relatives such as an aunt, uncle, or grandparent. This may be due to death, incapacitation, or incarceration for a crime. In some situations, adults with severe handicaps may need a legal guardian to care for them and act on their behalf. This is known as adult guardianship.
In family law, guardianship typically refers to anyone assuming the legal responsibilities of caring for a child who is not the child’s parent. Sometimes temporary guardianships may be granted, and emergency guardianships apply to other scenarios. A temporary guardianship is appointed for a specific period or a specific purpose. In some cases, an emergency may urge the court to appoint a guardian if the person requiring care is facing an immediate risk of harm or is incapacitated and unable to make legal defense on their behalf.
In most cases involving the guardianship of a child, a legal guardian must fill out the necessary paperwork (which shows your interest in being named the child’s guardian) and file it with the court. The court will arrange meetings between you and the child and determine whether such an arrangement would be in the child’s best interest.
A legal guardian is responsible for the child’s physical well-being and care and is also charged with handling all major decisions for the child. It’s important to note that legal guardianships typically only end when the child reaches 18 years old, or the guardian dies.
What is Child Custody?
As mentioned, custody is granted to the child’s parents, usually in divorce proceedings. There are two types of custody: physical and legal. Physical custody refers to the child’s daily life, such as living arrangements, medical care, and other necessities. Legal custody is defined as making major decisions on the child’s behalf.
In some circumstances, a parent may have partial physical custody of a child and be allowed to reside with them for some periods while spending time with them. However, the parent is not legally permitted to make official decisions on the child’s behalf.
Custody is separate from guardianship because a guardian can make physical and legal decisions for the child. In many ways, legal guardianship is considered to be similar to adoption. The difference is that in legal guardianship, the child’s biological parents are still legally considered the child’s parents. But in an adoption, the biological parents surrender their legal rights to the child.
When Do I Need to Contact a Lawyer?
If you are dealing with either child custody or guardianship, it may be useful to reach out to a local family attorney to understand the differences in your jurisdiction.
It may be considered useful to research some local laws before signing up for either of the scenarios. If you have additional questions, an attorney can provide you with legal advice and guidance for your specific needs and situation.