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Child Custody

What’s the difference between becoming a guardian of a child and having custody?

A “legal guardian” of a child is defined as someone who has the legal authority and duty to care for the child. Someone can become a legal guardian of a child in any number of ways. Two common examples are:

  • The child’s parent might sign a piece of paper giving you the legal right to provide for the child’s needs, and the proposed guardian signs it agreeing to accept those responsibilities.

  • A court may appoint a legal guardian after terminating the child’s parent’s rights in an adoption.

Legal guardians usually get appointed when, for whatever reason, the child does not have an available or prospective parent to take care of them. It does not necessarily require the Court to find that the child has been abused or neglected by a parent. For example, parents can name a close friend or significant person in the child’s life as the child’s guardian while retaining their own parental rights. This appointment enables the other adult to obtain medical treatment, provide for the child’s educational needs, and generally “stand in the shoes” of the parent. These agreements are always revocable by the parent who initially made the appointment.

“Custody” of a child means something more broad. Someone might have “physical custody” of the child, meaning that they literally have the child with them, but have no legal right or obligation to provide for that child’s care. Conversely, someone might have “legal custody” of a child but the child may not physically be with them all the time. Here again, this situation can arise in any number of ways. Two common ways are:

  • The Department of Children’s Services removes the child from the care of the child’s parents by court order, then puts the child into foster care. At that point, DCS has “legal custody” of the child. This means DCS has the legal duty to provide for the child’s needs. However, the foster parents have “physical custody” of the child because the child is physically living with them. The foster family does not have “legal custody” of the child because DCS remains legally responsible to provide for the child. In this example, the foster parents agreewith DCS to provide for the child’s day-to-day needs for a fee, but they are not the child’s legal “guardians” because they have no legal duty to do so outside the agreement with DCS. The legal duty to provide for the child remains with DCS.
  • In any divorce, parents split their time with their children. Most of the time, both parents retain “legal custody” of the children, meaning that they retain the ability to make major life decisions related to education, medical care, even extra curricular activities. While retaining “legal custody,” each parent goes through periods of time when they don’t have “physical custody” of the child because the child is with the other parent at the time.

Unlike legal guardianship, which requires action by a parent and/or a court, custodial rights are natural. Custodial rights always start with the parents, who have the Constitutional right to raise their own children. A court can take custodial rights away from a parent only if a judge finds that the parent has either voluntarily given the rights up or that the parent has abused, neglected or abandoned the child

Clear as mud? That’s why, if you are asking this question, you probably need a lawyer to advise you what your options are and which option will work best for your family. Give us a call or contact us online if we can help.