It’s important to be informed and clearly understand the differences between Guardianship and Custody.

People tend to confuse guardianship with custody. We usually believe these two terms mean the same thing.

One of the differences is that custody is given to the parents. When a non-parent has custody of a minor it’s called guardianship.

My years of experience working in the healthcare industry include pediatrics and geriatrics which has given me knowledge of legal issues that include minors and the elderly.

In this article I’m going to talk about the differences between Guardianship vs Custody.

Key Differences Between Legal Custody and Guardianship 

A key difference between Custody and Guardianship is the width of the decision making.

Custody is when a parent assumes custody of a minor. The biological parent has all the rights over a minor and is in charge of the child’s physical needs such as living place, school, food, medical treatments, and so on.

But there are instances in which a non-parent is appointed by the court as a temporary Guardian. 

Guardianship includes the same legal responsibilities and rights as a parent but is more limited and can only make legal decisions and is usually temporary. Being a guardian does not mean they can also gain the physical custody of the child. 

‍Note: It’s important to mention that the technicalities and/or specifics of Custody and Guardianships may change depending on where you live.

Comparing Custodians and Guardians

To be able to compare these two terms, it’s important to learn the differences between them.

‍Custody/Custodians

The custody of a child can only be appointed by a judge and is often final. As I mentioned before, custody is appointed to the biological parents. However, a temporary custody can be granted to a non-parent in case of certain circumstances. 

A non-parent can gain physical custody of a child if:

‍

• The passing of both parents.

• It’s proven that the parents are unfit to take care of the minor.

• Incarceration of parents.

• There is evidence of Domestic Abuse.

• The child’s acclimatization to a parent’s home is unstable.

• There is evidence of any endangerment to the child due to the parents’ mental or physical state. 

• The parents’ are not able to provide either a safe and/or stable environment for the child.

It’s important to note that legal custody and physical custody are not the same. 

In a nutshell, legal custody refers to having the power to make decisions regarding the minor while physical custody means to provide and physically live with the child. 

‍Guardians/Guardianship

A Guardianship is more of a legal relationship. A guardian may be appointed to act on behalf of a minor or a disabled adult. 

A guardianship of a child may not include physical custody of the child or adult but has the power to make decisions such as: 

• Manage medical care and expenses, 

• Maintaining the child or adult personal property (including residence), 

• Making decisions on their finances, and so on.

The Process of Appointing Custodians and Guardians Explained

In most places any person can file a petition for guardianship. However, there are laws in place to protect the person for whom the petition is being made because of the many rights that are at stake.

Another way of appointing a guardian is by recommending someone. If a parent knows he/she cannot provide for their child, they can recommend a family member or someone close to them. But only a judge can make that decision based on the well-being of the minor.

Duration of Guardianship

The duration of a guardianship depends entirely on the situation - and it may vary according to where you live. 

Depending on the case, the guardianship over a minor can last until the parents can take care of the minor again, or it can last until the minor reaches the majority of age (usually 18 years of age).

A guardianship over an adult may last until the adult in question recovers the capability of taking care of themselves or until he/she passes away.

Guardianship Over Adults - Is It Possible?

It is possible to have guardianship over an adult. 

But because a Guardianship is a process with the purpose of protecting the rights of a person unable to care for themselves before establishing a guardianship it must be proven that the adult cannot take care of him/herself.

Qualifications Required to Become a Guardian

The qualifications required to become a guardian are subject to the laws of the country where you live.

A guardian should know and fully understand the rights and needs of the person they intend to care for. A guardian also must have a grasp of the laws and regulations affiliated to guardianships.

Please be sure to always check for the information available in your country. 

How Are Custodians or Guardians Selected?

A parent can suggest a family member or a close friend as a guardian for a minor. A person can also apply to become a guardian for someone. But the final decision is made by a judge.

To be eligible to become a guardian you should:

• Have the majority of age (18 years old - however many countries require people to be 21 years old to become guardians),

• Being mentally and physically able to take care of the child or adult,

• And go through a background check among other requirements.

It’s important to mention that the requirements to become a guardian change according to the state or country you live in. In some countries you’ll need a copy of your credit report, pass an examination, and have financial stability.

Please be sure to check the information according to your country/state of residence or of the minor/adult for whom you’re applying the guardianship for.

Understanding Physical vs. Legal Child Custody

There are different types of physical and legal custody.

Joint Physical custody: is when the child lives or spends the same or an agreed amount of time with each parent. 

Sole Physical Custody: Is when only one biological parent lives with the child and also has legal rights over the child. (In these cases the other parent may have visitation rights but cannot make decisions for the minor).

• This type of scenario may also lead to Partial Physical Custody, meaning the parent without sole physical custody lives or spends time with the minor for less than half the time as the other parent.

Joint Legal Custody: Both parents have the same rights over the child. However they may not physically live with the child.

Sole Legal Custody: One of the parents has all the rights over the child, and does not have to consult with the other parent about any decisions but does not necessarily mean they live with the child.

Final thoughts

Although the differences between Guardianship and Custody are slight, they are still important.

The term Custody is more related to biology than to legal matters while Guardianship is when a non-parent temporarily acquires the same rights as biological parents.

The guardianship of an adult is more complicated because the priority is to protect the rights of the adult who needs a guardian.

When it comes to other people’s rights and lives is very important to always be informed.

Anyone who abuses their position as guardian can face civil charges and criminal penalties.