With so many legal terms floating around, it’s a good idea to learn about which each term means and how they’re different. Understanding the difference can help you make better decisions when the time comes. Not only will you have an understanding of what the various terms mean, but you’ll understand which is more applicable to your situation. One of the questions we hear frequently is “What is the Difference between Guardianship and Custody?” Together we’ll cover the differences by taking a closer look at each of these terms.
The Difference between Guardianship and Custody
Legal guardianship is a type of relationship which is created by the court. Under legal guardianship one person is appointed to act on behalf of another for their benefit and protection. The person appointed to act on behalf of the other is referred to as the legal guardian. While the person assigned a legal guardian is referred to as a ward.
Typically, wards are children whose natural guardians, or parents, are no longer able to care for them. This often occurs due to incapacitation or death. Occasionally, adults with physical or mental handicaps or the elderly may also have a legal guardian. A good rule of thumb is to think of guardianship as a non-parental party assuming legal responsibility for the ward.
Legal guardianships also include a number of sub-types such as:
- Emergency guardianship
- Temporary guardianship
- Adult guardianship
Most often, legal guardianship does not replace the existing relationship between parent and child. This means that, if it’s in the child’s best interest, the parent can ask the court to end the guardianship. Another form of legal guardianship is adoption. However, adoption is a more permanent solution.
There are some stipulations to becoming a legal guardian. According to LegalMatch, these include:
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.
Differences between Legal Guardianship and Custody
Child custody gives the parent(s) of the child the rights and responsibilities over the child. Under legal guardianship, the guardian has similar rights as those of the parent. Both guardianship and custody focus on the child’s well-being. However, the responsibilities of a legal guardian can vary depending on the custody agreement. For example, a guardian may have the ability to make legal decisions on behalf of the ward while a parent with physical custody may not if they don’t have legal custody.
This can seem confusing for the involved parties if they’re not all on the same page. This is why it’s important to ensure everyone involved understands their role. This understanding will allow all parties to work together for the ward’s best interests.
It’s important to understand that guardianship does not remove the legal relationship between a child and the biological parents. Guardianship is simply a legal relationship between a ward and a guardian that provides the guardian with specific rights and obligations in regard to the ward.
Adoption, on the other hand, is a permanent change between the legal relationship between the child and their biological parents. Adoptive parents actually become the legal parents of the child. This requires the biological parents to give up all parental rights. That being said, the terms of adoptions can also vary. For instance, one parent may give up rights to their child in order to allow a step-parent to adopt the child. In this arrangement it’s not uncommon for the biological parent to still have a relationship with the child despite giving up their parental rights.
In the end, the child or ward’s well-being is the most important thing.
Establishing Legal Guardianship
To establish legal guardianship of a ward it’s a good idea to first speak with an attorney. They can help you decide if this is the best decision for all involved parties. An attorney may also be able to help you file a petition with the court stating that you’re interested in legal guardianship. Often times, filing for legal guardianship also has 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.
If the biological parents already have legal custody of the child then the court typically does not intervene.
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.
Ending Legal Guardianship
Legal guardianship ends in a number of ways. These include:
- The death of the ward
- The child reaches the age of 18
- A judge rules that there is no longer a need for legal guardianship
- The child is placed into foster care
- The child is adopted
- A legal guardian asks the court to remove them from the guardianship role
Regardless of how legal guardianship begins or ends, it’s a good idea to seek a lawyer for advice. The laws surrounding legal guardianship and custody are complex. This is true when the wards are children or adults.
It’s also true that guardianship proceedings can be difficult on the ward and those involved. While legal guardianship and custody are different, many people feel as though there’s a stigma associated with both. It can sometimes be difficult for parents to see the big picture make a choice that is best for their child. As a result, this can end in a long, drawn out battle. Having an experienced attorney at your side is one way to ensure the guardianship and custody arrangements are handled professionally and swiftly for the ward’s best interest.