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A child needs a safe, healthy place to live and a competent caregiver. For most children, their parents are able to provide food, shelter, medical care when needed, education, and the rest of the tangible and intangible things kids need to grow up healthy and well-adjusted. In some cases, however, one or both parents are unable to provide the care that their child needs. In these instances, sometimes a guardian is needed. What is the difference between guardianship vs custody? The main difference is that custody is given to a child’s parents, while guardianship is given to a third party (often a family member). There are more considerations, however, so keep reading.

Child Custody and Visitation

You might think about child custody only in the situation of parents who are not living together (either because they were never living together or because they are separated or divorced). In this situation, one or both parents have physical and/or legal custody of their child. Most of the time when there are no extenuating circumstances, the parents share custody.

    • Legal custody means that the parent is responsible for making choices about where the child will go to school and which doctors and dentists to use. One parent might be granted sole legal custody, but most of the time, both parents will share legal custody and will both have the right and responsibility to work together to make these decisions.
    • Physical custody means that the parent has the child in his or her home. Again, many times, physical custody is shared, but sometimes one parent will receive sole physical custody. In that case, oftentimes the other parent will have visitation rights.

A joint physical custody arrangement might have the child spending roughly half of their time with each parent. For example, the child might spend a full week with one parent and a full week with the other parent on a rotating basis. There are many different arrangements that parents come up with to satisfy a joint custody order. A visitation order might have the child living with one parent all of the time and visiting only for a few hours once per week, or it might mean that the child lives with one parent almost all of the time but spends every other weekend or two weeks in the summer with the non-custodial parent. Again, various options can work.

Differences Between Guardianship vs Custody

In some cases, both parents lose custody of their children. This mainly happens when both parents are deemed unfit or incapacitated in some way. They could be incarcerated or maybe both are very ill and unable to care for their child. They might have abused or neglected their child, or they both might be struggling with an addiction. Whatever the case, if a child is an unsafe environment and neither parent is able to change things to properly care for their child, then the state might become involved and a judge can remove custody from the parents.

If the child can live with a family member, such as a grandparent, an adult sibling, or an aunt or uncle, then that relative might become the child’s legal guardian. They’d also have physical and usually legal custody of the child. Sometimes a third party who is not related to the child can also become their legal guardian. Guardianship can be temporary or permanent. If there is an emergency situation, there might be an emergency guardianship.

In some cases, parents whose children have a legal guardian can make some changes and get their children back, but other times, that guardianship will be permanent. Also, in some cases, you, as the child’s parent, will be able to have visitation and even have the child stay with you for some period of time, but you won’t be the one making legal decisions for the child unless the legal guardianship is terminated and you regain custody of your child.

Guardianship When Parents Die

In the unfortunate situation where both parents die (or if the parent with sole custody dies), a guardian will be appointed for underage children. This might be a relative or close family friend that the parents have asked to be the guardian, or it might be someone else appointed by a judge. This guardian will be responsible for the upbringing of the child. In many cases, they’ll also be responsible for the child’s portion of their parents’ estate until the child is an adult.

Guardianship for Adults

If an adult has special needs that make it impossible for him or her to live alone and to manage his or her own affairs, they might need a legal guardian. The parents can be the legal guardian in cases where it is an adult child with special needs. Another reason for legal guardianship of an adult is if someone is developing severe dementia and can no longer care for him- or herself. A family member or close friend can be appointed the legal guardian to an adult. In some cases, the person will become a ward of the state. If you are caring for an adult who will need lifelong care, it is wise to talk to a lawyer or a legal resource group to learn about how you can arrange for his or her guardianship in the future.

Do You Need Legal Guidance?

If you are going through a divorce or separation, you might worry about the legal costs involved with hiring a lawyer. The good news is that in most cases, a legal resource group like Family Law Legal Group can help you represent yourself when it comes to your own interests as well as the best interests of your children. Family Law Legal Group can also help with guardianships and other types of family law. Contact us today to learn more about how we can help your family navigate various types of legal issues without the high fees of a private attorney.


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