Guardianship vs custody: what’s the difference?

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The image shows a hammer above a large book titled “Family Law”. SmartAsset takes a closer look at the differences between custody and guardianship.

Guardianship and custody describes the legal relationship between an adult and a child. Custody refers to the biological parents of a child, while guardianship would be given to a non-biological parent. Thinking about custody can be a necessary part of a couple’s separation or divorce process, while guardianship is usually a longer term approach to this kind of issue. For more in-depth expert advice, consider consulting a professional financial advisor. Let’s compare the main differences between guardianship and custody.

What is custody?

Custody refers to the legal relationship between a child and its parents, most often the child’s biological parents. Basically, this is a legal arrangement that stipulates who maintains and takes care of a minor child. The most common case in which custody issues arise is when the parents divorce or separate.

There are two types of custody: physical and legal. Physical custody has to do with the daily life of the child and may include living conditions, medical care and other basic needs. Legal custody, on the other hand, is about making important decisions on behalf of the child. Based on these distinctions, it may even happen that a parent has partial physical custody of a child (being allowed to live with him and spend time with him during certain periods) but not legal custody of the child. child (not legally authorized to make official decisions on behalf of the child).

What is guardianship?

Guardianship will often be put in place because a child under 18 needs someone else to make legal decisions for them. Guardianship consists mainly of providing assistance for people with disabilities, that is to say those who are mentally or physically unable to take care of themselves. (And in the case of someone 18 years of age or older, adult guardianship is an option to consider.)

Guardianship differs from custody in that a guardian can make physical and legal decisions for the child. In some ways, a legal guardianship is akin to a adoption, but in a legal guardianship, the biological parents of the child are still legally considered to be the parents of the child. Technically, parents can also be guardians, but in this case the parents retain all of their parental rights and responsibilities. (In an adoption, they would give up their legal rights.)

Legal guardians must act in the best interests of the child when the parents are unable to do so. The reasons can include death, disability or incarceration, among others. The legal guardians may be parents such as an aunt, uncle or grandparent.

Appoint wardens or wardens

The image shows a hand holding a pen above a document titled

The image shows a hand holding a pen over a document titled “Custody of Child”. Custody and guardianship are similar concepts but have important differences.

In matters of custody, only a court is authorized to grant custody of a child. If legal action is needed, a parent can make recommendations, but the judge has the final say on who is appointed.

For guardianship, the final decision is also made in court, but parents may also be able to appoint a date. For example, a parent who has been incarcerated has the right to appoint someone they deem fit to replace them as guardian. (However, the parent cannot transfer custody rights and obligations without legal proceedings.)

Both scenarios involve completing the necessary documents that show that the best interests of the child are at the heart of the proceedings and, of course, the associated legal costs. Once the documents are filed in court, meetings will be organized between the child and all potential parties involved.

Duration of custody in relation to guardianship

Overall, the custody determination process tends to be flexible and subject to change based on any substantial change in circumstances, if that change is in the best interests of the child in question.

However, guardianship often last much longer – often for the life of the guardian, or until the child turns 18. This can happen even though guardianship is sometimes granted on a temporary or emergency basis.

In most cases, the court will use the “best interests of the child” standard to decide whether someone is in the best position to provide for that child, whether through custody or guardianship.

Final result

The image shows a young person sitting between two adults, all three signing a legal document while a lawyer looks on.

The image shows a young person sitting between two adults, all three signing a legal document while a lawyer looks on.

Custody and guardianship are two important approaches to consider when dealing with broader family matters, especially those involving children. These could include lifestyles, the time spent between children and parents, the availability of parents and the ability to make personal and financial decisions for themselves. It is important to understand the procedures, duration and basics of each before making the decision that is in the best interests of the child and the family.

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Photo credit: © iStock.com / zimmytws, © iStock.com / aluxum, © iStock.com / T Turovska

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