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Custody versus Guardianship: What's the Difference?

Some key differences between custody and guardianship.

Many times, custody and guardianship are talked about interchangeably. However, in legal terms, there are subtle but significant differences. An extremely simplified way to think about how custody and guardianship relate to parents and children might go something like this: 

  • Guardianship: Non-parental care of a child. 
  • Custody: Care of a child. 

Parents of a child are guardians by default— they have the responsibility of protecting and defending their children. When parents are absent or considered unfit to serve the role of guardian due to illness, jail time, or death; another person who is not a parent must be appointed to do so. They are given guardianship.  

A guardian stands in the place of a parent when it comes to caring for the child 

This includes making decisions about shelter, food, medical care, and other important day-to-day needs. A guardian can be appointed by either a court of law or the parents themselves. For example, an incarcerated parent can appoint someone to stand in his or her place as a guardian. Guardianship does not always grant custody or mean that a biological parent’s custody is revoked.  

Custody, meanwhile, can only be granted by a court of law. There are two types of custody: physical custody and legal custody:  

Physical custody is the right to exercise physical control over a child for a defined period of time. For example, this type of custody is exercised by a parent who has visitation rights (but who is not the primary custodian of the child).  

Legal custody grants the custodian the exceptional authority to make decisions concerning the child’s medical care, education, and legal rights.  

Custody most often comes into question when two parents who are caring for a child separate or divorce 

One parent may have physical custody of a child, while both parents retain legal custody. If at least one parent has legal custody of a child, a non-parent may be granted physical custody, but not guardianship. To receive guardianship, the parent(s) must either willingly give up legal custody rights, or a judge must suspend or revoke their legal custody rights. The suspension might only be temporary (i.e., temporary guardianship). 
 
In the eyes of the law, the most significant factor in any guardianship or custody case is what is in the best interests of the child. Bear in mind, this is just a quick overview of legal concepts and relationships. It is important to consult an attorney to determine the best steps when it comes to the protection and care of a child.  

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