Family Law: Guardianship Vs. Child Custody

Divorce Lawyer

If you are seeking to care for a child you might wonder what the difference between child custody and guardianship is. Both are similar, but have distinct concepts that describe “the legal relationship between a child and an adult.” As family lawyers find, many clients are confused between the two. Before proceeding with any legal action regarding guardianship or child custody, please speak with a family lawyer, like from Pioletti, Pioletti & Nichols.

Child Custody – In general child custody is granted to a child’s biological or adoptive parents. 

Guardianship – This is typically granted to a non-biological or adoptive parent. 

Additional differences between child custody and guardianship are as follows:

  • The duration of the legal relationship; for example, guardianship may be granted for a temporary period of time. 
  • Who can appoint a guardian. 
  • Who is allowed to make decisions regarding the child’s wellbeing. 
  • Who is generally granted custody over a child and who is generally granted guardianship. 

It is certainly possible for these relationships to overlap, or interact, with one another. For the best possible outcome, and to keep a childs’ interests a priority, it may be a good idea to consult with a family lawyer. 

Custody Vs. Guardianship

When it comes to the custody of a child, there are two types of relationships. 

Physical Custody – This is the right to exercise control of a child for a period of time. For instance, physical custody may be exercised by a parent with visitation rights, but is not the primary custodian of the child. 

Legal Custody – In general, the custodial parent of the child also has legal custody. This concerns the ability to make decisions regarding the child’s healthcare, medical treatment, education, religious upbringing, and legal rights. 

Guardianship is a legal relationship in which one party is granted the authority to act for the benefit of another (i.e. the ward). The relationship might exist for an adult, who could have a disability. However, in family law, a guardian typically refers to an adult who is acting for the benefit of a child. 

Guardians tend to have limited ability in the actions they are permitted to take on behalf of the child. The decisions they are able to make might only include those regarding day-to-day decisions and choices. 

Who Can Seek Custody of a Child?

In general, custody of a child is granted to one or both of the child’s biological or adoptive parents. Custody may be based upon factors such as:

  • Each parent’s proximity to one another
  • Each parent’s participation in the decision-making and wellbeing of the child’s life
  • Whether the parents are willing, and can, work with one another to make decisions that are in the best interest of the child

Who Can Seek Guardianship of a Child?

In general, a guardian is appointed to care for a child if their parents are unable to do so because of:

  • Illness
  • Incapacitation
  • Incarceration
  • Death

As a family lawyer might explain to you, there may be cases involving grandparents, foster parents, or friends seeking guardianship so as to make day-to-day decisions. Should the parent oppose guardianship, or wish to have more control over the life of the child, it may be more appropriate to consider non-parental custody. Regardless of what you might need, a family lawyer should be consulted with as soon as possible. 

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