Custody and guardianship are two distinct legal concepts that often overlap but are not the same. Both custody and guardianship involve the care and well-being of a child, but they differ in their scope and legal implications.
Definitions
- Custody refers to the legal right to make decisions about a child’s daily care, including where the child lives, what school they attend, and what medical treatment they receive.
- Guardianship is a broader concept that encompasses custody but also includes the legal authority to make decisions about a child’s long-term welfare, such as their education, religious upbringing, and financial matters.
Legal Differences
The legal differences between custody and guardianship vary from state to state, but some key distinctions include:
- Duration: Custody orders are typically temporary, lasting until the child reaches a certain age or emancipation. Guardianship orders, on the other hand, are permanent unless they are terminated by the court.
- Scope: Custody orders generally focus on the child’s immediate care, while guardianship orders provide broader authority over the child’s overall well-being.
- Authority: Custody grants legal authority to make day-to-day decisions about the child, while guardianship grants legal authority to make major decisions that affect the child’s future.
Types of Custody and Guardianship
Types of Custody:
- Physical custody: The right to have the child live with you.
- Legal custody: The right to make major decisions about the child’s upbringing.
- Joint custody: Both parents share legal and physical custody of the child.
- Sole custody: One parent has exclusive legal and physical custody of the child.
Types of Guardianship:
- Guardian of the person: Has legal authority to make decisions about the child’s day-to-day care and upbringing.
- Guardian of the estate: Has legal authority to manage the child’s financial and property affairs.
- General guardian: Has legal authority to make all decisions about the child’s care and well-being.
When Guardianship is Needed
Guardianship is typically established when a child’s parents are unable or unwilling to care for them. Common reasons for guardianship include:
- Death of a parent: If a child’s parents die, the court will appoint a guardian to care for them.
- Incapacitation of a parent: If a child’s parents are unable to care for them due to illness or injury, the court may appoint a guardian.
- Abandonment or neglect: If a child’s parents have abandoned or neglected them, the court may appoint a guardian to protect the child’s well-being.
Process for Establishing Guardianship
The process for establishing guardianship varies from state to state, but typically involves the following steps:
- Filing a petition: The person seeking guardianship must file a petition with the court.
- Investigation: The court will investigate the petitioner’s suitability and the child’s best interests.
- Hearing: The court will hold a hearing to consider the evidence and decide whether to grant guardianship.
- Order: If the court grants guardianship, it will issue an order specifying the scope and duration of the guardianship.
Costs of Guardianship
The costs of guardianship can vary significantly depending on the complexity of the case and the state in which it is filed. Typical costs include:
- Filing fees: The filing fees for a guardianship petition vary from state to state.
- Legal fees: Guardians may need to hire an attorney to represent them in court.
- Investigation fees: The court may appoint an investigator to conduct a home study or other investigation.
- Bond: The court may require guardians to post a bond to ensure that they will properly care for the child.
Conclusion
Guardianship and custody are two distinct legal concepts that involve the care and well-being of a child. Custody focuses on the child’s immediate needs, while guardianship provides broader authority over the child’s overall well-being. Guardianship is typically established when a child’s parents are unable or unwilling to care for them. The process for establishing guardianship varies from state to state, and the costs can vary significantly.
