When it comes to family law, it is complex, and the definitions of the care of a child can be confusing. Guardianship and custody are two of the legal terms which are used to describe the practical and legal relationship between a child and parents. Several people conflate guardianship with custody while the two terms refer to very different things.
When divorce occurs between a couple then the biggest question is that who will look after that minor child or simply gets custody. Couples also create a will that designates a guardian in case both of them die, but their children are still minors. In this article, the main focus is on differentiating guardianship and custody.
Guardianship vs Custody
The main difference between the guardianship and the custody is their focus. Guardianship focuses on looking for help for people who fail to be mentally or physically capable of taking care of themselves. On the flip side, custody involves more focus on the relationship of the parent-child.
Guardianship is an order announced by a court of children for a child in foster care or out of home care who fails to return to their family due to their own safety. The young person or child will remain in the guardian’s care until the order changes from children’s court or until they simply turned into 18.
Custody generally consists of legal custody in which there is a right to make decisions related to the child. It also consists of physical custody in which there is a duty and right to provide, house, and care for the child. Married parents usually have joint physical and legal custody of their children.
Comparison Table Between Guardianship and Custody
| Parameters of Comparison | Guardianship | Custody |
| Interpretation | It is the position of being responsible legally for the case of someone who fails to manage their affair. | It is the responsibility for the upbringing, care, and maintenance of children or a child. |
| Determine | In probate court | In family court |
| Given for | Minor adults or children | Minor children |
| Authority over child’s estate | Included | Might not include this |
| Types | Full and limited guardianship | Physical, joint physical, legal and third-party custody |
What is Guardianship?
Guardianship is also referred to as conservatorship which is a legal process and utilized when a person fails to make a sound decision or communicate safely. Generally related to personal property or person or has been undue or fraud influence. Because guardianship establishment might remove from an individual considerable rights.
After guardianship alternatives have proven unavailable or ineffective then they should only be considered. Alternative to guardianship consists of health care surrogacy, representative payee, case managements, trusts, living wills, community agencies, community advocacy system, supported decision-making networks, and many more.
There are generally two types of guardianship, namely full guardianship, and limited guardianship. When the incapacitated person needs assistance in daily living’s all activity then full guardianship is appointed. Conversely, when the incapacitated person needs assistance in areas one or more while still making decisions in others then a limited guardian is appointed.
The guardian has full responsibility and care until the child turns 18 for ensuring the child’s cultural, social, spiritual, and emotional needs are met. This consists of making decisions related to education and health as well as managing contract with their family, parents, and others as directed in the order of guardianship.
What is Custody?
Under the age of 18, Child’s primary care as the legal responsibility is known as custody. In other words, the right to make major decisions related to the child is referred to as custody. Some instances of major decisions of child consist managing the health care, choosing where the child lives, and making decisions related to schooling.
Parenting time is referred to as the legal ability for spending time around the child. Custody and parenting time both can be shared between the parties. In joint custody, the custody is shared. On the other hand, in sole custody, the custody is not shared.
There are several rights of the non-custodial parents including to inspect and receive the child’s dental, psychological, medical records, and school records as well as government records concerning the child. To consult with a person who might offer treatment or care for the child.
In a court, a custody case must be filed that has jurisdiction on the disputes of custody. Jurisdiction generally arises from children present as nation or state’s legal residents where a custody case is filled. Many judges and courts lean more towards the figure of maternal when there is a child’s custody trial.
Main Differences Guardianship and Custody
- The duration of guardianship is sometimes granted on an emergency or temporary basis and persists for the guardian’s life or until the child reaches the majority age. Conversely, custody tends to be flexible and modified if there has been a circumstance’s substantial change in the current custody arrangement.
- Both parents and courts might appoint a child guardian. An incarcerated parent for instance has an appointing right to whoever seems fit to stand in her or his place as guardian. Meanwhile, to grant custody over a child only a court is permitted and if court actions are required then the parent might make recommendations.
- The advantages of taking guardianship are security, legal rights to make medical, financial, and other decisions on behalf of the ward. In contrast, the benefits of taking custody are the right to decide for a child and the right to a child’s physical custody.
- The disadvantages included in guardianship are legal complications, long-term commitment, and a lot of responsibilities. On the flip side, the disadvantage of custody is that child fails to spend quality time with parents and non-custodial parents feel more like a visitor rather than a vital part of the child’s life.
- When it comes to focusing, guardianship focuses on looking for help for people who fail to be mentally or physically capable of taking care of themselves. On the other hand, custody involves more focus on the relationship of the parent-child.
Conclusion
It can be concluded that guardianship is generally given to minor adults or children who fail to take care of themselves. In contrast, custody is solely given to minor children. The authority over the child’s estate is involved in guardianship. On contrary, authority over a child’s estate might not be included in custody.
Guardianship is the position of being responsible legally for the case of someone who fails to manage their affair. On the other hand, custody is the responsibility for the upbringing, care, and maintenance of children or a child. Guardianship can be determined in probate court, while in family court the custody is determined.
References
- https://link.springer.com/article/10.1057/cpcs.2008.19
- https://link.springer.com/article/10.2307/3004048