Guardianship VS Custody – The Difference

Guardianship and custody are often used synonymously. Although the main idea behind both the terms is similar, in the world of law, there are certain differences that create a fine line between the two. They imply two different ideas and can have very different contextual meanings.

Whether it is legal custody or guardianship, both are associates with difficult situations. Normally, parents are the legal custodians of their children and seldom are guardians allocated. However, under certain circumstances, the legal custodian/s may be unable to perform their duties and a legal guardian is appointed. Whatever the court eventually decides is in favor of the child.

Guardianship can be divided into three different categories:

• Legal guardianship of an old person
• Legal guardianship of children below 18 years
• Legal guardianship of people with developmental disability

In this article, the second category will be discussed. Here are some of the legal differences between guardianship and custody:

1. Guardians are usually individuals, preferably family, who are given the responsibility of taking care of the subject which also includes property matters until the subject comes of age. Guardians are appointed to ensure stability in a kid’s life. Custody on the other hand is the right a person has with respect to the subject’s upbringing. It entails all the duties and rights of individuals in the capacity of parents. Thus, divorcing parents usually divide custody. In layman terms, they divide responsibility between themselves with respect to the upbringing and major decisions of their child’s life.
2. Guardianship is taken up in the probate court while custody falls into personal matters and hence is taken up in the family court. Guardianship is handing over the kid directly to the guardians that may or may not be under the court’s supervision.
3. Guardians usually have the complete authority and right to make decisions which they deem are in the best interest of the child. This includes their education, health, maintenance of their property, etc. On the other hand, there are usually two custodians between whom the responsibilities are divided. There is the legal and the physical custody to keep in mind. Both these can be shared.
4. Since the guardian is not sharing the responsibility of the kid with anyone, his decision for the kid will reign supreme. However, in case of custody, the responsibilities have been legally divided. So, if the kid is spending the weekend with the non-custodial parent, that parent might be responsible for the brief period but still won’t be able to take any legal decision.
5. As far as the duration of guardianship is concerned, there is not a set number of years that the guardian is supposed to care for the child. It is a life-long relation that may see an early ending in case the kid is no more a minor and can fend for himself and make decisions on his own. However, in case of custody, the court is allowed to change or switch certain rights, taking them from one parent and giving them to another, in case they believe there is reason to do so.

Thus, guardianship and custody are slightly different concepts.

Liz Hobart is a passionate social worker and aims to raise awareness against domestic violence. She recommends DJP Solicitors for all legal matters.