Custody VS Legal Guardianship: What are the Differences?

Parenting is not only a lifelong commitment and a challenging undertaking, but understanding the legal terminology that goes along with the many different ways to parent can also be a challenge. One common point of confusion is the difference between legal guardianship and custody. While both address the legal relationship between a child and an adult caregiver, and both are determined by a court, there are several differences between child custody and child guardianship. The key difference is that custody refers to time legally granted to a parent for the care of their child while guardianship is the legal responsibility for a child granted to someone who isn’t their parent.

What is Child Custody?

Custody addresses the relationship between child and parent. A child’s custody is legally with the birth parents listed on the child’s birth certificate, but the matter of custody must be addressed by a court if the parents become divorced or if they aren’t married and require a legal custody agreement to share parenting.

A court grants custody to a child’s parents as part of a divorce agreement or when unmarried parents require a formal agreement. The two types of child custody are legal custody and physical custody. Legal custody may be granted to one parent or both parents jointly. Legal custody refers to the right to make important decisions for a child, including the following:

• Medical and health decisions
• Education decisions
• Religious decisions
• Travel decisions
• Decisions about extra-curricular activities such as sports and clubs

Physical custody addresses where and with whom a child lives. In California, the courts decide matters of physical and legal custody in the best interests of the child, which is generally to spend equal time with both parents and with both having a say in legal decisions. However, depending on the circumstances of each case, one parent may have primary physical custody while the noncustodial parent has a parenting schedule such as every other weekend, one weeknight for dinner, and alternating holidays and school vacations.

What is Guardianship?

A court appoints a legal guardian to perform parenting duties, take on legal responsibilities, and act in the best interests of a child when their parents cannot either because of death, incapacity, incarceration, or for other reasons. The child becomes the legal “ward” of the guardian. Guardianships may be temporary or permanent. In most cases, a legal guardian is a relative of the child, such as a grandparent, aunt, or uncle. Legal guardianship ends when a child turns 18.

In some circumstances, the court may appoint a legal guardian for a child while the parents still retain a degree of custody, whether it be full or partial custody. In other instances, guardianship may be appointed to only make legal decisions for a child while the guardian does not have physical custody, and vice versa.

If you’re considering taking on the guardianship of a child, it’s important to understand the legal responsibilities involved.

Parents may choose a legal guardian for their children in the event of their death as part of their estate plan. In these cases, a judge must review the request before appointing guardianship. A legal guardian must meet the following requirements:

• Be 18 years old or older
• Found to be of sound mind
• Must not be a felon
• Must be a legal resident of the United States

There are many nuances to laws of custody and guardianship. A Newport Beach family lawyer can help you with questions regarding child custody and guardianship.