What are Custody and Legal Guardianship?
The basic legal definitions for "custody" and "legal guardianship" of minor children differ in some important aspects. In nearly all cases, parents are the natural custodians of their children until they become legal adults at the age of 18. Minor children usually continue to reside with their parents and remain under their care until that time. This time during which parents are the moguls of their children’s little lives is called the "period of parental authority" under Colorado law, and it includes the right to direct the upbringing, education, and health care of a child. Parents who retain custody of their children after divorce have a legal right and responsibility to care for them and make decisions about their welfare until children reach adulthood and are free to make their own choices.
"Legal guardianship" of a child, on the other hand, is a different relationship altogether, although the ultimate end goal for a guardian is the same: providing a stable home for a child in need. Only a judge can order a guardianship for a child. It is generally imposed if the child’s parents are temporarily or permanently unable to care for them . Guardianship can be strictly temporary or can reach into the realm of adoption if the biological family does not (or cannot) re-establish custody of a child. The legal responsibilities of a guardian include making health care, education, and childcare decisions, as well as providing physically and financially for a child’s needs.
In choosing between custody and guardianship for a child, one of the first factors that come into play is the parental authority of the biological parents. If that authority has not been revoked by a court, parents may maintain custody of a child even when a guardian is appointed. However, if a child is adopted by another family, parents lose their right to make decisions for the child, and the new parents become the legal guardians. The adoption finalizes the transfer of parental authority, even though the child’s last name changes to reflect that of his or her new family. A parent’s loss of authority due to the death of a parent does not terminate parenthood. Rather, the surviving parent becomes the guardian of the child, and parental authority continues.
Distinctions Between Custody and Legal Guardianship
The core distinction between the two roles is that legal guardianship is a legal relationship that does not necessarily arise from a family bond or a biological connection, while custody exists to further the best interests of a child in a familial context. The extent of the caretaker’s authority, ability to make decisions and oversight of the ward’s care will vary depending on the formality of the role.
Legal authority
In the event of the death or incapacity of a minor child’s parent or guardian, legal custody of the child is granted either to a private individual or an organization like the Department of Human Services, solely by request of the biological parent or judge and without court action. The caretaker is then authorized to seek the ward’s necessary care and make medical and educational decisions on behalf of the child.
In contrast, to obtain guardianship of a minor, the parent must consent to the legal arrangement and it must be approved by the Family Court. Legal guardianship by consent of the parent is often appropriate in cases involving children who have special needs and require ongoing medical intervention or custodial care. It can also be appropriate for minor children who have reached the age of maturity, but due to circumstances such as physical disabilities may require assistance. In these situations, it is not the parent who seeks Guardianship but may be the minor child who wishes to establish a legal Guardianship before reaching the age of majority, to ensure that someone will be legally authorized to make medical and other important decisions should that child no longer be able to do so.
Decision-making capabilities
Although a guardianship can only be transferred to an individual approved by the Family Court, it may be modified by appointment to someone else, court termination or upon the child’s legal maturation. When guardianship exists with the consent of the parent, it can be terminated by either the biological parent or the child when he or she reaches age 18. When held by a person other than the parent, guardianship continues indefinitely unless otherwise amended by the Family Court.
Duration
In instances where court action is required, the Family Court determines the best interests of the child and awards custody of the minor to the parent or another qualified individual on a temporary or permanent basis. In certain instances, custody can be obtained by agreement of the parents.
Custody can be concurrent with legal guardianship, especially in the case of parents who are willing to relinquish their rights to make decisions on the child’s behalf. Alternatively, the Family Court may award legal guardianship, but retain custody with the biological parent based on its determination that retaining custody is in the child’s best interests.
Custody and its Legal Implications
Custody bestows a host of legal rights and responsibilities upon the custodian and creates a guardianship over the child. A custodian is responsible for the care, guidance and control of the child. A custody determination is binding on all parties. It transforms the status of the parties as legal guardians to that of parent and child. Although the legal guardian’s role is also to care, control and discipline the child, the legal guardian is a mere "foster parent." Guardianship is not meant to displace the natural parent. Guardianship ends when the parent’s parental rights are terminated by judicial proceedings or upon the removal of the guardian. The non-custodial parent is empowered to seek a modification of the custody order.
Custody affords the custodian the ability to make major life decisions on behalf of the child. Decision making includes all matters pertaining to the welfare of the child with respect to, but not limited to, medical care and treatment, education, religious affiliation, extracurricular activities, career and vocational counseling, marriage, and enlistment in the military. The ability to relocate (move) with the child is also significant. While the custodian may travel with the child and seek temporary relocation for work, the custodian’s authority to remove the child from the jurisdiction of the court depends on the underlying custody order. In relocation litigation, courts must look to the best interests of the child, specifically the following: the integrity of child’s relationship with each parent and sibling, the ability to maintain the relationship with parents and siblings, geographic distance from extended family and friends, the degree of support for the relocation by the non-custodial parent, the extent to which the relocating parent’s goals are reasonably and appropriately achievable, the feasibility of preserving the relationship between the non-custodial parent and child through suitable custodial arrangements, and the health and age of the child, the effect of relocation on the physical, educational and emotional development the child.
Legal Guardianship and its Legal Implications
In North Carolina, a legal guardian must file an accounting with the court every three years. These financial records must demonstrate how the child’s money was spent during the covered period, be it college savings or other funds. It’s also worth noting here that once a child turns 18, they are legally recognized as an adult and their funds can be distributed to them directly without the need for documentation from a guardian. Obviously, however, that may not be in the child’s best interest and should be discussed with an attorney.
A legal guardian can also be responsible for the day-to-day care of your child and their wellbeing until a point when a child is ready to take on those responsibilities. A legal guardian can provide the level and type of support needed by the child, in the short term or through to the age of 18, and can be useful in the case where a child is involved in the court system until they reach adulthood. It is in the best interest of a child to have a legal guardian in place, rather than languish in foster care or go through the sometimes brusque process of being placed with friends or family members.
Once a child has either been placed in a permanent guardianship, or has successfully exited the court system upon adoption, it is the responsibility of the legal guardian to meet with the child’s school to discuss the specifics of their education and needs, including the possibility of tutoring, need for special education classes and programs, and anything unusual that might need to be addressed.
When is Custody Better than Legal Guardianship?
When the goal is to establish or maintain the existing parent-child relationship, custody may be preferred over legal guardianship. Whereas a custody order clearly lays out parenting time and decision-making authority for a child, a guardianship order leaves many of these ideal arrangements up to guardian discretion. A guardianship order typically limits parental rights, but does not extinguish them, which allows the parent to retain a legal relationship with his or her child. While the legal distinctions and implications are important, they may not matter in practice to those who chose to enter into a guardianship arrangement.
The distinction often becomes significant only when conflicts arise between a parent and a guardian. A guardian’s authority is limited by the extent of the court’s order. Where parental rights are not extinguished, a parent must consider whether the court’s order undermines his or her ability to parent in that area. The State of Washington has a public policy that prefers parental rights, and parents may at any time seek to modify or terminate a guardianship, even if the guardian is willing and financially or emotionally able to care for the child . Where there is a fundamental conflict between a parent and a guardian, parents may be more likely to prevail at seeking modification, or even termination of the guardianship.
The fundamental policy underpinning all child custody and guardianship matters involves the child’s best interests. The Washington Supreme Court has stated: Custody laws are about the child, not the parents. Decisions about who shall resolve the care of children should be determined not by the dispute between the parents, but by the law’s mandate to act on behalf of each particular interstate child before the court. The policies promoting the best interests of the child, the welfare of the state, and continuing finality will be well served by recognizing the principle that every child needs two parents.
RCW 26.09.002. Any arrangement that undermines the relationship between a parent and a child may violate this principle, and be subject to challenge by those under the guardianship order. Where a parent runs a risk of losing the ability to access his or her child should a conflict develop with a guardian, parental rights may be better preserved under a custody arrangement.
How to Switch from Legal Guardianship to Custody
Transitioning from a legal guardianship to a legal custody arrangement can be a relatively easy or difficult process based on the extent of the change and the reasons why the change must occur. Transitioning from a legal guardianship to legal custody does not always require the court to terminate the existing legal relationship upon a finding that it is no longer in the child’s best interest, but can also occur with an agreement from the birth parents and existing legal guardians.
Transitioning to legal custody only requires that the child’s best interest be served, which generally includes consideration of the length of time the child has resided with the existing guardians, the child’s preference, and the bond between the child, parent, and guardians. Because the transition from guardianship to custody frequently occurs in a situations where the relationship is no longer appropriate, the court will have a complete record upon which it makes the transition decision.
Unlike terminating the existing guardianship relationship and establishing a new custody relationship, transitioning from guardianship to legal custody does not require a separate evidentiary hearing. The court can enter the order terminating the guardianship and establishing legal custody simultaneously.
Custody and Legal Guardianship – Misunderstandings
Custody refers to the primary responsibility for a minor child’s physical care, whereas legal guardianship is an order of a court that addresses certain legal circumstances. Although both often relate to the care of a minor, neither status should immediately be presumed to directly correlate with each other. Often, however, the definitions confusingly overlap, and many people mistakenly presume that either custody or legal guardianship results in both (1) physical care and (2) legal rights and responsibilities over the minor child. This is not true. A legal guardian does not have the same legal rights as a parent and does not have all of the same legal obligations to a minor child. The same is true regarding the presumption that (1) custodial parents and guardians have substantially similar legal obligations, and (2) that their responsibilities are the same.
A simple example may be used to clear up the confusion. Let us presume that Joe is a parent of a 12-year-old son, Paul. Joe is granted legal and physical custody of Paul. Joe’s sister, Jane, later petitions the court for guardianship of Paul because she wants to take Paul to her home located in another state. Let us presume that the court grants Jane a limited guardianship over Paul allowing Jane to do everything Joe can do with Paul, except to relocate Paul to a different state without permission from Joe. Assuming that Joe agrees, it is possible for Joe and Jane to enter into a written agreement that allows Jane to exercise certain powers. If the document prepared by the attorney gives Jane the authority to exercise certain statutory powers on behalf of Paul, then Jane may exercise those powers, subject to Joe’s right to bring a petition to terminate the guardianship.
Because the guardianship order and the Domestic Relations Order, which set forth Joe’s custodial rights, are two different orders, even if the Court appoints Jane to serve as a limited guardian, Joe may still be forced to comply with the terms of the Domestic Relations Order. If the terms of the Domestic Relations Order requires Joe to provide notification to Jane before traveling with Paul to another state, failure to do so might result in a finding of contempt against Joe.
Just because Jane is appointed to be Paul’s legal guardian, does NOT empower Jane to make determinations regarding where Paul should attend school, have a serious medical condition treated, or to carry Paul along with her when traveling abroad. Those issues may only be addressed in a plenary action (i.e., a full hearing on the merits) adjudicated by a competent Court of jurisdiction where Paul resides. In simple terms, the guardian cannot energize the custodial powers of the custodial parent, just because Jane is given limited guardianship over Paul. Guardianship is something different from custody. The two terms are not synonymous. A guardian has limited powers, including advising and making recommendations on matters related to the welfare of a minor child, but the guardian for limited purposes does NOT have the same power as the biological parent over the child.
Summary: Choosing the Right Legal Option
When parents or loved ones are faced with the decision to either pursue a custody order or a legal guardianship, the decision at first may appear straightforward. However, the legal and emotional implications of either decision are significant. Parental custody has a very specific purpose: to prevent third parties from usurping parental rights over a child. A legal guardianship, on the other hand, creates a new family unit and often anticipates permanency in the relationship. Because the purposes of the two remedies are so markedly different, it is important to fully evaluate the circumstances of the child and the family and seek legal counsel before pursuing either option. There may be a temptation to waive retain legal counsel to create a stipulation , particularly in the context of very familiar and intimate relationships, such as a step-parents seeking custody of step-children or grandparents but this can worsen the trauma and effect of the loss. When parents enter into a stipulation they are ultimately foregoing their due process rights and the protections afforded to them by statute. Rather than waiving those rights, and in an effort to heal the family dynamic, courts encourage parents to collaborate and family advocates to mediate through the process to determine what is in the best interest of the child.