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The Difference Between Guardianship and Custody of a Child

You may be wondering if there’s a difference between having custody verses having guardianship of a child. Although these are similar legal concepts, they actually differ in a number of ways. To understand guardianship versus custody relationships, it’s important to note a number of clear distinctions between the two.

Guardianship petitions assign one adult the legal power to act for the benefit of another person – typically, a child or an adult incapable of acting in his or her own best interest. Someone can act as guardian for the person, or the person’s property.

  • In the case of a child, a guardian may be appointed when a parent is incapable of caring for the child themselves for some reason, such as when they are severely ill or disabled, being deported, imprisoned, or when they pass away.
  • A guardian may be appointed by Family Court or Surrogate’s Court. However, it is more likely that someone will file for guardianship in Surrogate’s Court.  Custody petitions are always filed in Family Court and in many ways have the same legal affect when used for children as they both bestow the legal authority to make decisions for the child.
  • Child custody determinations typically occur pursuant to a family breakup, such as when parents divorce or separate. It can also occur when one or both parents are deemed “unfit” or determine on their own that they are unable to care for their child(ren).
  • There is a distinction between physical custody and legal custody. Physical custody is used to determine the person/parent the child lives with and whose address is used as the child’s address for school and insurance. Legal custody grants the custodian the ability to make major life decisions, such as health care and education, for the child. Legal custody can be shared by two or more people, requiring all legal custodians to agree and consent to major decisions for the child.
  •  Custody is determined in a Family or Supreme Court using a “best interest” analysis. The Court looks at the child’s relationships, and strives to maintain a consistent quality of life for the child. Biological parents are given the greatest preferenc

With regard to children, guardianships and custody relationships intersect with each other. In either case, the Court looks at many factors to determine who is most appropriate to care for the child, and takes into account the child’s wishes or in the case of guardianship petitions, requires consent for children age 14 and over, during the analysis. What type of petition to file is based mostly on the result you are looking for and the circumstances at hand.

Legal Concerns with Child Custody and Guardianship Arrangements

Child custody arrangements tend to be more flexible than guardianships and are more often able to change with the circumstances of the family. Guardianships tend to be more applicable to a permanent solution that would stay constant over time.  These petitions often require additional medical and financial information be presented to the court.  When both parents are still alive and available, custody orders are best suited for matters concerning the child.

Custody petitions are also used to establish visitation rights. In addition to parents – grandparents and siblings that have established relationships with the subject child(ren) also have a right to file custody actions to establish visitation to maintain their relationships. This is true even in cases where the child is adopted.

In some cases, older siblings or grandparents step in to seek custody when the biological parent is unfit to care for the child due to homelessness, mental health issues, or drug and alcohol issues.  When the problem resolves, the parents can re-petition for their custodial rights to be restored.  Changes to custody orders and establishing rights for extended family members or no-related parties require certain legal thresholds to be met and consultation with a lawyer experienced in Family Law is strongly suggested to prevent your case from being dismissed.

Custodial or guardian relationships involve complex estate,  family, and domestic relation laws. In all cases, it’s advisable to seek the assistance of a qualified family and matrimonial law attorney to help ensure that you achieve the best result. An experienced attorney can intelligently represent your interests and ensure that no matter what you are dealing with, your legal interests in the child can be protected.

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