Guardianship vs. Custody

You’ve likely heard the terms “guardianship” and “custody” before, but what’s the difference?

Both guardianship and custody refer to minor children. Guardianship gives a guardian certain rights and responsibilities over a child. Custody involves a child’s parents and also allows parents rights over their children. 

While both provide rights, custody creates a stronger tie to a minor, both legally and emotionally. Parents are a child’s natural guardians, and the relationship between parents, in most cases, is stronger than that between a child and their guardian. 

If you need legal assistance with either guardianship or custody, an unbundled lawyer is ready to help.

What Is Guardianship?

Simply put, a guardian is an individual formally appointed by the court. When a guardian is appointed to take care of a minor, they are responsible for providing the child with the care, love, and support they need. 

There are different types of guardians for minors. A minor may need a guardian for several reasons, and the details of the guardianship can depend on the circumstances of the child and the child’s parents.

Different Types of Guardianship

The three main types of guardianship are below.

Permanent Minor Guardian

When a judge appoints a permanent guardian, this individual permanently becomes responsible for the child.

Generally, guardianship does not end until the minor reaches the age of majority, which is 18 in most states. However, permanent guardianship may end early if the minor emancipates, gets married, or passes away.

Guardianship can also end if the guardian petitions the court to end their responsibility, or if a judge determines the guardian is not adequately fulfilling their duties and termination would benefit the child.

Temporary Minor Guardian

Temporary guardianship often involves a written agreement between a minor’s parent or current guardian and the proposed temporary guardian.

This type of guardianship, as the name suggests, only lasts for a short amount of time. A temporary guardianship is usually needed in cases where a minor’s parents or legal guardian cannot take care of the child for a limited period.

Temporary guardianship can last anywhere from 60 days to six months. The agreement can detail when the guardianship is to end, but otherwise, most states have laws regarding the maximum amount of time a temporary guardianship is to last.

Emergency Minor Guardian

When there is an emergency that threatens a minor’s life, health, or well-being, an emergency guardianship may help keep the child free from harm.

In the event of an emergency, a proposed guardian can file a petition with the court asking the court to grant them emergency custody. Depending on the state and the severity of the circumstances, the court may either schedule an emergency hearing or grant custody without a hearing.

When a guardian gets emergency custody, it is always temporary custody.

The court can then schedule a formal hearing, where the temporary guardian and the child’s parent(s) will attend. During the hearing, the judge has the opportunity to further review the evidence and hear arguments from both sides for or against making custody arrangements permanent. 

After the hearing, the judge may decide to either terminate the emergency temporary custody or make the temporary custody arrangement permanent. 

Responsibilities of a Guardian

A guardian for a minor has several rights and responsibilities. Guardians play a vital role in a minor’s life, as they can make all of the important and life-altering decisions for a child.

A minor’s guardian is responsible for all of the following:

• Providing a home for the child
• Caring for the child
• Ensuring all of the child’s basic needs are met
• Enrolling a child in school
• Making important life decisions, like what religion the child will practice or what doctors the child will see
• Managing the child’s money

While most guardians for minors are responsible for a child’s whole life, in limited situations, a guardian may only be appointed to manage a child’s finances if necessary and nothing else. 

For example, if a child’s parents pass away, the court may assign a guardian to take care of the child but may assign another guardian solely tasked with managing the child’s finances, including insurance payouts or inheritances. 

A judge can review the details of the situation to determine the child’s needs and appoint guardians accordingly. 

Who Can Be a Guardian?

Not just anyone can be a guardian for a minor. 

Every state has requirements to be a minor’s guardian. Potential guardians must first meet the following criteria:

• They must be over 18
• They must not have a criminal record
• They must not have an incapacity

Additionally, a potential guardian must be responsible and have the means and desire to provide for the minor.

Usually, judges tend to pick guardians that have an established relationship with the child, whether it be a family member or a friend. This makes it much easier for the child to adjust and feel comfortable. 

How to Establish Guardianship

Every state has different procedures for establishing guardianship. However, the procedure commonly requires similar steps.

First, the potential guardian must file a petition with the court expressing an interest in becoming a minor’s guardian. After the court receives the petition, it can review the documents and proceed with scheduling interviews and home inspections and performing background checks. The court may want to interview you, the child, and the child’s parents, if at all possible.

Once the court has the information they need, the judge can approve or deny the petition. If they approve the petition for guardianship, you’ll get a formal court order establishing guardianship.

What is Custody?

Custody refers to the care of a minor under 18. Custody arrangements depend on the circumstances of the parents. The topic of child custody is not typically an issue unless parents are getting divorced or are not together, but wish to share responsibilities for their child. 

There are Multiple Types of Custody

Child custody is not “one-size-fits-all.” There are several ways to create a child custody arrangement that works for parents, but most importantly puts the child’s needs at the forefront. 

Physical Custody

Physical custody refers to where the child resides physically. Both parents can share physical custody, meaning the child spends time at both parents’ homes or one parent can have sole physical custody, meaning the child lives with that parent full time. 

Legal Custody

Legal custody involves the rights parents have to make decisions for their children, including the following:

• Where the child will attend school
• What religious affiliation the child will have
• What activities the child will participate in
• What medical care the child receives

Parents usually share legal custody, allowing them to make decisions jointly. However, if necessary, legal custody can go to one parent alone. 

Joint Custody

Whenever possible, joint custody is best for children. The law recognizes the benefits of a child having both parents present and active in their life.

When a judge grants joint custody, both parents have physical and legal custody of their child. The child can spend time with both parents, and both parents come together to make decisions for their child.

Sole Custody

While joint custody is usually the goal, there are situations where granting joint custody would be contradictory to what is best for the child.

Sole custody gives one parent custody of the child. In most cases, when a parent gets sole custody, they get both sole physical and legal custody, unless a judge decides on a different arrangement.

Visitation

When a parent does not get custody of their child, the judge may grant visitation rights.

Visitation can either be supervised or unsupervised. Supervised visitation must take place at an agreed-upon location, whether it be a family member’s home, a park, or a visitation center. Supervised visits must also involve the parent, a child, and a supervisor. Supervisors are often social workers or psychologists.

Unsupervised visitation allows the noncustodial parent to spend time with their child without supervision at any location. 

Visitation rights are never guaranteed. A judge will only grant a noncustodial parent visitation rights if they believe the parent is worthy of such rights and it would benefit the child.

How to Get Custody

To get custody, parents can either create an agreement together or allow a judge to make a decision.

When parents can agree, they can come together and create their custody agreement. Different states have names for these agreements, such as parenting plans. These plans should include as many details as possible, including a time-sharing schedule, information regarding drop-offs and pick-ups, and even holiday schedules.

Once parents have their agreement, they can submit it to a judge for formal approval and a court order.

If parents are unable to agree on custody, they can go before a judge. The judge will thoroughly review the details of the situation, examine the evidence, and hear from both parties before making a decision. 

The judge may decide to hire a guardian ad litem for assistance. These special types of guardians serve as advocates for children. They spend time with the child and interview the most important people in a child’s life, including family members, teachers, and doctors, to paint a full picture for the judge. The guardian can then make recommendations to the court based on their findings. 

Once the judge makes a decision, they create a court order both parents must abide by.

Whether You Need Help with Guardianship or Custody, Rely on an Unbundled Lawyer

If you need assistance with guardianship or custody, an unbundled lawyer can help with either.

Unbundled lawyers have the same services as other lawyers, but their services are “pay-as-you-go.” Instead of paying for full representation, you only pay for the services you need most. This allows you to cut costs while still getting the high-quality service you need.

When you’re ready to hire a lawyer, Unbundled Legal Help is eager to match you with the right unbundled lawyer in your area. Contact us today to get started.