Difference Between Guardianship and Custody

Guardianship vs Custody

When a couple decides to separate or divorce, the biggest problem that they will face is the question of who gets custody of their minor children. It is a question of who will make decisions for the child and who will take care of his needs. Couples must also create a will that will designate a guardian in the event that both of them die while their children are still minors.

Guardianship is a legal relationship that is created when the parents of a minor cannot take care of him and decide to designate a guardian for him. In the absence of the parents, any member of the family, friend, or local official can petition the court to appoint a guardian.

Parents can designate a guardian for their children in the event that they die before their children reach 18 years. A person named in a will can have guardianship over a minor and it will remain in effect until the child reaches 18 years old. In the case of an adult unable to fend for himself, a guardian can also be designated to take care of his needs.

Parents can also appoint a guardian if they have to travel for a long time. In this case, the guardian can make decisions for the child while the parents are away, but it can be terminated according to the terms of the guardianship by the parents or the court.

Parents usually have joint custody over minor children which allows them to exercise their duties as parents and care for their children. It can either be legal, wherein the court gives the custodial parents the right to make decisions for the child, or physical custody, wherein the court decides where the child will reside.

If both parents are found unfit to care for the child, as in the case where there is domestic violence and abuse, the court can appoint a relative, like a grandparent, a foster parent, an orphanage, or other institutions.

Only the court can grant custody of a minor although the parents can suggest on whom to grant custody of their child. The court’s decision will be based on what is in the best interest of the child. It has to consider the child’s wishes, the wishes of the parents, the nature of the child’s relationship to his parents, and the conditions in their home.

Summary
1. A guardian can be designated by the parents or the court, while custody can only be granted by the court based on the child’s best interest.
2. Custody is only given for minor children, while guardianship can be given for minor children and adults who cannot take care of themselves.
3. Guardianship has a limited scope, while custody is more far reaching. Guardians are given authority over a child’s estate, while custody might not include this.
4. Parents can have both guardianship and custody over a minor child but the parent who has custody of the child can make decisions for the child without having to ask permission from the other parent who also is the child’s guardian.

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