Torn between guardianship vs. custody? Confused about what each means?
Welcome to the club. Millions of families nationwide are in the same boat every year. After all, with over one-quarter of all children under 21 living without one or both parents in their household, most of us have no choice but to understand our legal options.
The good news?
Once you know a little bit about how both work, it’s easy to determine which path is right for you and your family.
In this post, you’ll learn:
- What’s the Real Difference Between Guardianship and Custody?
- When Does Custody Come Into Play?
- Understanding Guardianship: More Than Just Child Care
- The Legal Process: What to Expect
What’s the Real Difference Between Guardianship and Custody?
First things first…
The short answer is, most people assume they’re the same thing. They’re not.
Custody generally means a parent has legal rights to their child and physical care of that child. This is common during divorce and separation proceedings.
Guardianship, in contrast, is an appointment by a court for someone who is not the child’s parent to make decisions for that child, or, in the case of adult guardianship, someone who is incapacitated or unable to make decisions on their own behalf.
Think of it this way:
- Custody = Parent acting on behalf of their child
- Guardianship = Non-parent stepping in for a child or adult
With 290,000 guardianship cases filed in family court every year, it’s no wonder the terms get confused. Millions of people need the protection of these legal processes.
When Does Custody Come Into Play?
Custody cases generally arise when two parents can’t agree on which of them should have responsibility for their children. Of course, this doesn’t only occur with divorce and custody in Boise, ID. This situation happens all over the country every year.
Fun fact!
Did you know 90% of custody cases never go to trial? That means that most parents work out their arrangements without having to plead their cases before a judge.
You can file for several types of custody, including:
- Physical custody – Where a child lives on a day-to-day basis
- Legal custody – Responsibility for decisions regarding education, medical care, and religious upbringing
- Joint custody – Shared by both parents
- Sole custody – When one parent has primary or full legal responsibility
Courts always rule with the best interest of the child in mind. Family law services are designed to help parents work out their rights while keeping everyone protected.
Understanding Guardianship: More Than Just Child Care
Guardianship involves a little more than protecting children. It also can apply to incapacitated or injured adults in need of someone to make decisions for them.
The main types of guardianship include:
Guardianship of Minors
This type of guardianship occurs in some of the following circumstances:
- Death or incapacitation of a child’s parents
- When a child has money or property that needs a guardian to manage it
- When a parent can’t care for a child due to illness or other situations
A guardian appointed for a child usually has the same rights and responsibilities as that child’s parent.
Adult Guardianship
Adult guardianship occurs in cases where another person needs to make important decisions on someone else’s behalf.
This typically includes situations involving:
- Dementia or Alzheimer’s disease
- Developmental disabilities
- Mental illness
- Physical incapacitation
Experts estimate that there are currently 1.5 million adults under guardianship in the US. This is a growing area of family law.
The Legal Process: What to Expect
Here’s a breakdown for you…
Whether you’re filing for custody or guardianship, the legal process is fairly similar in each case.
Steps in the Custody Case Process
- File a petition for custody with the family court
- Serve papers to the child’s other parent
- Attend mediation in most cases
- Present your case to a judge if necessary
- Abide by the court’s order after the case is decided
Steps in the Guardianship Case Process
- Petition the court to appoint you as a guardian
- Give notice to all interested parties (family members, etc.)
- Pass background checks and other evaluations
- Attend required court hearings
- Receive continuing court supervision after case is decided
This process might seem like a lot, but family law services are there to help every step of the way.
Choosing What’s Right for Your Family
So how do you know which one is best for you and your family?
As a general rule, ask yourself the following questions:
- Are you the parent of the child in question? If so, you likely need custody arrangements
- If not, is the child’s parent deceased, missing, or incapacitated? Guardianship might be the right call
- Is this situation temporary or permanent?
- How much court supervision do you want in this case?
For custody, remember that you can always modify the arrangement if circumstances change. Guardianship is usually more permanent, especially for adults, and may require more continuing oversight by the court.
Protecting Your Rights Throughout the Process
Just so you know…
It’s critically important that you know and protect your rights, no matter which type of case you file. This means that you should:
- Document everything – Keep accurate records of all meetings and decisions made
- Know your responsibilities – Understand the legal obligations that come with each case
- Abide by court orders – Failure to comply with court instructions is a serious matter
- Get professional guidance – Family law matters can be complex. Don’t try to go it alone.
The court exists to protect the rights of vulnerable people, be they children or incapacitated adults. Your job is to prove that you are the best person for the job.
Common Challenges and How to Handle Them
Let’s face it…
Not all custody and guardianship cases are easy.
Common Challenges in Custody Cases
- Parental disagreements
- Changes in living situations
- Relocation
- Financial disputes
Common Challenges in Guardianship Cases
- Family conflict over who should be guardian
- Continuing reporting to the court
- Money management
- Difficult medical decisions
Handling these issues? Focus on the best interests of the person you’re fighting for.
The Financial Reality
Here’s a surprise for you…
Guardianship and custody both come with costs.
Custody case fees range from a few thousand to tens of thousands of dollars. Guardianship cases usually have on-going expenses such as reporting to the court, legal costs, and money management.
But mothers make up 80% of custodial parents providing financial and emotional support to their children nationwide. This expense is a worthy investment for the long-term security it provides.
Wrapping Things Up
Figuring out your custody vs. guardianship options doesn’t have to be hard.
The simple truth is that custody is for parents involved in divorce or separation. Guardianship is for situations where someone other than a parent must step in to care for a child or incapacitated adult.
Both are important tools in our legal system for protecting the young and vulnerable in our society. Both require court involvement and continuing oversight.
So what are your next steps?
- Determine which legal route is right for you
- Gather all documentation needed
- Consider enlisting experienced family law services
- Always focus on what’s best for your loved one
Custody and guardianship processes can be daunting. But thousands of families successfully go through them every year. With the right information and preparation, you can, too.