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Legal Custody vs Legal Guardianship: What’s the Difference?

By September 30, 2020Custody
Legal Custody vs Legal Guardianship - National Family Solutions

You may have heard the terms “legal custody” and “legal guardianship” used interchangeably, but they mean two different things. If you are talking about taking care of your own child (whether you are a parent biologically or through adoption), then you have custody of them. If, however, you are legally responsible for someone else’s child, such as your grandchild or a niece or nephew, then you have legal guardianship of them. The specifics within those definitions will depend on the state. Keep reading to learn more about the differences between legal custody vs legal guardianship.

Legal Custody

In a separation or divorce situation, if you and your ex are both the child’s parent (again, either biologically or via adoption), then the ability for each of you to make decisions for your child is called legal custody. In many cases, both parents will share legal custody, but in others, one parent will be granted legal custody. This does not mean that anyone is giving up their parental rights or giving up their rights to physical custody or visitation.

It only means that the parent with legal custody will be the one tasked with making decisions for the child. Those decisions might include which religion the child will (or will not) be raised with, where they will go to school, who their pediatrician will be, and whether the child will have orthodontic braces. When parents share legal custody, they should be making these decisions together. If they cannot decide, then one parent might have tie-breaking authority.

This can be further broken down: One parent might have tie-breaking authority over educational and religious matters, while the other might have it over health matters. In some cases, the parents will need to talk to a mediator or even a judge to determine who will get to make a particularly difficult decision. All this falls under legal custody, which would belong only to the child’s parents.

Physical Custody

Legal custody does not necessarily impact physical custody (although in many cases, the parent or parents with legal custody will also have physical custody). Physical custody is where the child physically lives. If you and your ex share physical custody, then the child goes back and forth between your homes. It might not be 50/50 in terms of time; that is something that is worked out depending on the needs of the child.

But there should be a substantial amount of time spent with each parent. The specifics will be worked out in the parenting plan, which will detail when the child will be with each parent during the school year (if the child is old enough to be in school), during school breaks, and on holidays. In other cases, one parent will have physical custody and the other parent will have visitation.

Usually, this visitation will take place wherever the non-custodial parent wants, as long as the custodial parent has no objections and as long as the court has not mandated that visitation should take place in a certain location or under supervision.

    • If you are the non-custodial parent and you have visitation privileges, you might have your child every other weekend as well as one evening during the week.
    • If you live far from where your child goes to school or where he or she lives with the other parent, then your visitation might be for a few weeks during the summer or one weekend per month.
    • If you have been awarded supervised visitation, you will have another adult with you while you are with your child. This might be one of your relatives (for example, your sibling or a parent), a neutral third party, or a social worker.

The details will be in your custody decree. Even if you have supervised visitation, you are still legally your child’s parent, as your parental rights have not been terminated.

Legal Guardianship

When comparing legal custody vs legal guardianship, guardianship is when a child is not able to be cared for by his or her parents, so another adult steps in and cares for them. This needs to be filed with and approved by the court for it to be a legal guardianship. Most often, a legal guardian is the child’s grandparent, aunt, or uncle, but other relatives and, in some cases, people who are not related to the child can become the legal guardian.

The reason for a legal guardianship can vary. In some cases, it is because the child’s only parent needs to travel to work in another place or because the child’s only parent becomes seriously ill or gets incarcerated. In other cases, a judge might decide that the child needs to be removed from their parents’ home and would be better off living with a willing family member or close family friend than going into the foster care system. This could be on a temporary or permanent basis.

Sometimes, legal guardianship is necessary because the parents have died. In that case, the guardian might have been chosen by the parents ahead of time or might have been ordered by the court. A legal guardian does what a custodial parent would do. The child will live with their guardian, and the guardian will be the one deciding which school the child goes to and what medical care the child will have. In some cases, this is done in cooperation with the parent.

Legal guardianship does not typically negate parental rights, but in some cases, the parents’ rights will be terminated, and the child might continue to live with the legal guardian. When comparing legal custody vs legal guardianship, guardianship ends when the child turns 18 in most cases. If the child is disabled and needs to have continued care, then the guardianship can be extended. Also, in some cases, legal guardianship begins while the dependent is an adult.

If you are the relative of an adult who is disabled and must have a guardian, their parents might designate you or someone else as that dependent’s guardian if the parents should become incapacitated in some way or if they die. Some elderly individuals also need a legal guardian. The differences between legal custody vs legal guardianship can be confusing, so if you are unsure about your situation, contact a legal resource group like National Family Solutions for help.

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