A guardianship refers to an individual, known as the “legal guardian” who is assigned certain rights relating to the legal care and supervision of another person. The person whom the legal guardian is legally responsible for taking care of is called the “ward.”
Although the ward is usually a minor in need of legal guidance, they can sometimes be an adult who is not able to make legal decisions on their own.
In general, there are two main types of guardians: “guardians of the person” and “guardians of the estate.” Guardians of the person are those individuals who are entrusted with the actual care of the ward; similar to the manner in which an adoptive parent cares for their adopted child.
Guardians of the estate, however, are responsible for a person’s estate, including their property, money, and any assets that they own.
In either of these types of guardianships, the legal guardian owes a fiduciary duty to their ward, which means that they must act in accordance with the best interests of the ward in mind.
While parents are a child’s natural guardians by default, in cases where a child’s parents are either unfit or absent, then the court may appoint someone (usually a close relative) as their guardian.
Depending on the circumstances involved, the guardian can gain custody of the child, or in more serious cases, will be provided with the right to make medical, educational, and other important life decisions on behalf of the child. This normally turns on whether or not the child’s parents are still living and if they are capable of making such decisions for their child.
What is Child Custody?
Child custody is a legal phrase that refers to the set of rights and duties that a parent has to oversee important decisions and to ensure the safety and well-being of their child.
These rights are often assigned to the parents during child custody arrangements, which usually arise from family law cases involving a divorce, legal separation, or sometimes, when a child has been a victim of neglect.
Although there are several different kinds of child custody arrangements, such as joint custody or sole custody, the term is most often used to define the parental rights related to the two main types: legal custody and physical custody.
Legal custody means having the right to make vital decisions about how to raise the child, including education, medical care, and religious upbringing. Physical custody is concerned with the physical location of the child and where they primarily live.
A court will typically be involved with the decision of granting child custody. This happens in two ways. The first is where the parties voluntarily enter into a child custody agreement, which outlines the responsibilities of each parent, as well as their individual visitation schedules. The custody agreement will then be submitted to the court for approval.
The second occurs when the parties cannot come to an agreement. In such a case, the court will have to assist the parties in forming an arrangement based on a number of different factors.
Regardless of how child custody is awarded, the primary focus of the court will be to ensure the arrangement is made according to the child’s best interest standard.
What are Some Similarities Between Child Custody and Guardianship?
Guardianship and child custody are both family law terms that are focused on the legal rights of caring for a child. Like child custody arrangements, guardians can also gain both legal and physical custody rights over the child.
Regardless of which situation is at hand, the court has final say in whether or not to grant the child custody arrangement, or to confirm the designated legal guardian.
Additionally, in either instance, the law is primarily concerned with creating an outcome that will result in the child’s best interest.
Lastly, child custody arrangements and guardianships can be modified or terminated. In either case, the parties will have to seek court approval in order to modify or terminate the initial order.
What are Some Differences Between Child Custody and Guardianship?
As mentioned, child custody cases often arise in cases of legal separation, divorce, and sometimes, neglect. This means that the parties involved are usually the child’s parents and the case will be centered on determining what rights the parents have over the child, e.g., legal decisions, physical custody, and visitation rights.
For example, if a child’s parents file for divorce, a decision will have to be made regarding where the child will live. The parents can agree to either give one parent physical custody, share physical custody, or alternate where the child stays according to a visitation schedule.
The parents will also have to decide who has say over important legal decisions that will affect the child. In most cases, the parents will share this responsibility. This is especially true when both parties are cooperative and can communicate civilly.
On the other hand, guardianships usually involve a third party who is not a biological parent of the child. There are various types of guardianships, but they are most frequently invoked when both parents are either unfit, absent, or deceased. In cases where one or both of the parents are living (e.g., if the child’s parents are incarcerated) the court may appoint a temporary guardian to care for the child.
Should I Hire a Lawyer for Help with Child Custody or Guardianship Issues?
Cases involving both child custody and guardianship issues can be quite challenging. Not only do the laws vary according to the state, but the cases can have a long-lasting impact on both the parents and the child.
As such, it may be in you and your child’s best interest to retain a local child custody lawyer if you are experiencing issues with a child custody arrangement or guardianship.
An experienced child custody lawyer will be able to provide legal counsel regarding what parental rights you have, how to protect your parental rights, and how the laws in your area may impact the court’s decision.
Additionally, a lawyer can also help with negotiating the provisions of your child custody arrangement, as well as represent you in court on the matter.