All About Legal Guardianship
A legal guardianship is a legal relationship that exists between a minor and an adult. A legal guardian has all the legal authority and responsibilities associated with being a parent to the child. In many respects, this legal association between a child and a guardian is very similar to them having a living parent. Yet in other respects, it is not and for that reason, legal guardianships exist that are tailored specifically to meet the needs of the minor and those who have assumed the role of parenting the child.
When a child is placed in a legal guardianship it is almost always done in their best interest. Through this legal relationship between the child and the adults in the guardian role, the child gets care, education, and nurturing from the people who provide it. Many legal guardians are even able to receive the same public benefits such as tax benefits and financial support that would go to a biological or adoptive parent . Having a legal guardian can effectively remove the threat of adoptive parents from being terrified that if the child they have adopted somehow needs the help of a public benefit that is only available to children born to their parents, their child will be taken back by the state. Adoption and legal guardianship are different in many ways but they share the common goal to protect the child financially and by ensuring they will have a good quality of life.
Other instances are when people assume the role of legal guardian because a biological or adoptive parent has violated their legal rights as a parent. Often, the child’s safety and wellbeing are put at risk…these situations involve abuse, abandonment, neglect, or others instances where a parent can no longer be the legal guardian of their child. In these situations, the court will have to become involved in the decision about legal guardianship and unlike those who enter the guardian relationship from a voluntary standpoint, these actions are involuntary and often traumatic for the child.
Understanding Custody
Custody arrangements are typically governed by a custody order, a legal document that lays out a child’s living and visitation situation. If a court has heard your case and made a decision regarding the custody order, then you are a custodian. Depending on your situation, this can be physical custody, legal custody, or both.
Physical custody is what most people consider custody to be in the family law arena. In a physical custody arrangement, the judge awards the child making his primary home with you. The school district that he will attend is different than his home address, but you will have the primary say on where he attends. Physical custody is important because it will set how you and the child’s other parent share holidays, vacations, and life events, as well as where the child spends the night.
Legal custody is what most people consider visitation when they think of family law. In a legal custody arrangement, you retain the ability to make all of the decisions for the child. The legal order gives you the right to be the primary decision maker, without checking with the child’s other parent about basic decisions like where the child will go to school, what food he will eat, whether he sees a doctor if he is sick, and whether the earn spots on sports teams. Legal custody allows you control over the child’s life, bringing the child with you, without first discussing it with the child’s other parent.
All custody orders from family court have to be in the best interest of the child. Courts favor what is known as shared parenting. Most of the time, it is in the best interest of the child to have both parents be custodians and to have equal time for residential custody. However, this is often not possible for many reasons – like distance, which is often the case in military families. If shared parenting is not feasible due to distance, the next best thing is for the child to have a close relationship with both parents, in separate locations.
Distinctions Between Guardianship and Custody
Understanding the technical differences between "guardianship" and "custody" is important for anyone considering taking on these responsibilities. Here’s a comparison of the five major differences between guardianship and custody.
Responsibility
In legal terminology, guardianship
Authority
A custodian for a child generally has informal authority over the child’s day-to-day affairs, including education, medical care, and general welfare. In contrast, legal guardians are granted the full range of legal authority over another person’s affairs, including financial matters.
Legal Oversight
Custodians of minor children must obtain court approval to name a guardian. The future care of the child becomes the court’s concern once the approval is obtained.
Financial Needs
Custodians may or may not receive financial support for the child from the child’s parents. In contrast, legal guardians can petition the court for support from the guardianship estate and/or from the parents via child support awards or personal claims.
Scope of Rights
Custodians do not have an absolute right to make legal decisions on behalf of the child. For example, custodians cannot usually take children out of the state without parental consent. In contrast, guardians have broad legal rights to act on behalf of the person under guardianship and can legally remove the person from one state to another.
When to Seek Legal Guardianship Instead of Custody
There are several circumstances in which pursuing a legal guardianship may be a more appropriate or advantageous course of action than seeking legal custody of a child. Legal guardianship is most likely to make the most sense when legal custody may otherwise be unattainable or limited in scope.
Short-Term Guardianships
If you seek to legally adopt a child, only to learn that the parents who currently have legal custody of the child can have their custody arrangement modified in as little as six months, you may wish to pursue a Guardianship. This will preserve your right to make decisions on your adopted child’s behalf until 18, allowing the birth parents time to learn how to be responsible parents again. If you suspect that you may need this, it’s generally best to consult an attorney before any action is taken.
Guardianship of Siblings
If you are a relative of a child – such as a grandparent or aunt/uncle – you may wish to have legal Guardianship of several children so that they don’t have to be separated while under your care. Guardianship of this type is often easier to obtain than custody of all involved children and can provide you with ample legal rights.
Guardianship When Adoption is Unlikely
In the eyes of the law, legal Guardianship of a minor is nearly the same as legal adoption, except that it does not legally sever parental rights. Guardianship still allows you to make the same decisions as a parent would in regard to finances, education, health care, etc. If you are not sure if birth parents’ rights will be severed, Guardianship may be the way to go.
Restricting or Terminating Parental Rights
Based on your family history, current situation, or other factors, it may be in a child’s best interest to have a guardian appointed who has the ability to restrict or terminate parental rights. Note that terminating parental rights or having a parent’s rights restricted are both lengthy processes that require court approval. They also require legal representation to ensure that all relevant information is examined.
The Law Behind Establishing Guardianship and Custody
The legal procedures for establishing both guardianship and custody can vary by jurisdiction, but generally, the process for obtaining a legal guardianship begins with the filing of a petition in the appropriate family court. Along with the petition, the guardian must provide the court with a petition that contains an affidavit detailing the need for guardianship and the inability of the parents to care for the child and other information related to the care of the child. The legal procedures also require the guardian to notify all immediate family members of the proceedings, allowing them to consent or oppose as they deem necessary. In some jurisdictions, the legal proceedings for establishing guardianship also require letters of recommendation that attest to the guardian’s qualifications. Once the petition is filed, the court will then schedule a hearing date or a series of hearings, during which time a judge will review the submitted information and make a determination on whether to grant the guardianship request.
The procedures involved in obtaining child custody are similar to those in guardianship cases, though somewhat less complex. Unlike guardianship, though , a child custody order can be established within a divorce case, or as a separate entity. Should there be an established divorce proceeding, the legal standard for establishing child custody is that of the best interest of the child. If child custody proceedings are initiated while guardianship proceedings are also ongoing, the same legal standard applies, though the process may be expedited. The legal procedures also allow family members to file for child custody in the event of a divorce proceeding, meaning that an estranged parent may seek custody of children without obtaining a court-granted guardianship.
It is also important to note that parents may voluntarily relinquish legal guardianship or custody of their children should the parents so choose. If a legal guardianship was entered into through family court but not the divorce process, parents can bypass the guardianship process by filing a dismissal request. If the parents no longer wish to attend to the needs of their children, regardless of whether a legal guardianship is in place, they can simply relinquish custody of the children, allowing family courts to pursue other options for placement of the children as they see fit.
Custody vs Guardianship: What It Means For A Child
The impact on the child within a legal guardianship and custodianship can vary, with each option presenting distinct advantages and challenges. A legal guardian’s role is often flexible, allowing room for the guardian to make decisions about the child’s upbringing, education, and healthcare. In such arrangements, a guardian is generally required to act in the child’s best interest, similar to a biological parent. The emotional implications for a child placed with a guardian can range from feelings of relief and stability to confusion, particularly if the arrangement is temporary or the child is transferred frequently between guardians.
Custody, on the other hand, implies a more parental role for a custodian and a degree of emotional attachment for the child that could present potential challenges. The child may experience better emotional and social outcomes in the long run, with outcomes corresponding to the age of removal and the length of time spent in out-of-home care. In some cases, this can create a sense of permanence for the child, leading to positive psychological impacts. On the other hand, a lack of connection to a stable guardian can result in attachment disorders and separation anxiety.
Education is another important consideration, as legal guardianship or custody can affect a child’s school experience. Having a stable guardian or custodian who collaborates with the school can also positively impact a child’s academic performance. In contrast, an unstable custody or guardianship arrangement can result in frequent school changes and an undetermined educational future.
Consulting a Legal Expert For Guardianship Or Custody
Engaging a legal professional is essential when dealing with complicated family law matters, especially those concerning children. While the differences between guardianship and custody may seem simple to the layperson, the underlying legalities are not always so straightforward. Legal professionals, such as family lawyers and mediators, can help families sort through these complications. Choosing the right legal advisor may be portion of a parent’s first step, but it can be the best, and only, move for the family.
A good lawyer is knowledgeable in the local, state, and federal laws related to custody and guardianship of children. The right lawyer helps the parent clearly understand their own rights and responsibilities under these laws. He or she also helps the parent navigate what is legally permissible , and may even recommend courses of action that are in the best interests of the entire family. Because they are unbiased, legal professionals will offer realistic advice that an emotionally-involved person might not want to hear.
A family lawyer will be familiar with current trends and precedents in the area of custody. He or she will be able to protect the client’s parental rights while never making empty or false promises. If necessary, they will be able to recite and apply different laws to the case at hand. Custody laws may vary from state to state, making it even more important for a lawyer to be delegated in the law of that state.
For help with guardianship or custody of a child, contact a local attorney or consider mediation through a family lawyer.