You’ve likely heard the terms “legal guardianship” and “joint custody” before, but may be unsure about the difference between the two. However, as you enter into the judicial system, either as a result of divorce or to gain parental rights of a child, it is important to know the distinction of joint custody vs legal guardianship.
A Brief Overview: Custody vs. Guardianship
Both guardianship and custody are used to describe the legal relationship between a child and an adult. That relationship is determined and defined by the courts.
In a legal guardianship:
- The adult is usually not the biological parent of the child
- The biological parent is not physically or mentally capable of taking care of themselves or others
- “Best interest of the child” is used to determine which adult is the guardian
- The adult is responsible for caring for the child until age 18
- Biological parents maintain legal rights in most cases
In a custody arrangement:
- The adult is a biological parent of the child
- The court has settled a parental dispute over with whom the child should live and how often they should be there
- All types of care (educational, medical, financial) are explained in the agreement
- The cause is often divorce or separation, or one parent being titled “unfit” to care for the child
Though there are marked differences between the two, we are often asked questions about those differences. Here are some of those frequently asked questions that will enable you to better understand this vital terminology:
1. How long does a legal guardianship last? What about a joint custody arrangement?
Legal guardianships always end once the child turns 18 and is no longer a minor. However, during childhood, guardianship is seen as a more permanent solution. In other words, this isn’t something that would be often revised in courts or mediation but rather once a guardian is chosen, they remain in control of the care of the child until either the parent has changed their circumstances or until the child reaches adulthood.
Custody tends to be a more flexible arrangement, changing when circumstances within the family change. Joint custody specifically is more open to revision based on the needs of the children and the parents, time of year, or a change in physical location.
2. What decision-making rights do legal guardians have as opposed to those with joint custody?
When a parent has custody of a child, that also means they have rights to make decisions for that child. These include both day-to-day decisions and more major life decisions, such as where the child should attend school, what healthcare they should receive, and what religion, if any, they should belong to. In a joint custody situation, both parents will need to reach a conclusion together on these decisions.
In a legal guardianship, the guardian was set up because the child needs someone to make legal decisions for them. However, in general, guardians tend to be limited to day-to-day decisions rather than the more significant ones.
3. How is custody or guardianship of a child decided?
When deciding in any case who has the right to care for a child, whether it be a legal guardianship or a custody agreement, the court considers these factors:
- The best interest of the child – the most important factor where the court decides what will best serve that individual child.
- Any history of abuse or domestic violence.
- The emotional and mental state of the child(ren) and parents.
- The environment the parent or guardian is able to provide.
Using that information, the courts decide which parent should have custody of the child, or if parents should share custody. Further, after considering the factors above, a guardian is appointed when a parent is found to be incapable of caring for the child. This could be due to abuse, imprisonment, deportation, illness, disability, or death.
The terms legal guardianship and joint custody, though different, involve similar and complex processes to obtain the result you want. If you are currently seeking a guardianship or custody of a child, a family law attorney can help you navigate the proceedings.