Guardianship corresponds to a probate court, unlike custody, which is a matter concerning the family courts. Both terms largely relate to the obligation of caregivers, or parents, relating to a minor ward or child. There is still some difference between these two terms, explained through this AptParenting write-up.
For the sake of children
In certain courts, legal professionals have begun to use the term ‘parenting schedule’ in place of the words ‘custody’ and ‘visiting’, so as to rule out the difference between custodial and non-custodial parents, and aid better child development.
It is a little difficult to distinguish between these two legal terms, which are sometimes inadvertently used as synonyms. However, the implications of both terms are different, depending on the context of the legal issue.
Legal guardianship and custody can often be a complex scenario. In case of parents having custody of a child, legal guardianship is not generally allocated. If, for any reason, the legal custodian (either of the parent) is not able to take care of the child anymore, a third party can be appointed as a guardian. Nevertheless, in all conditions, it is seen that the orders issued by the courts are in the best interests of the child.
Guardianship Vs. Custody
The term guardianship can be referred to in three different situations: legal guardian in case of a senior (infirmity due to old age), guardian of a minor (below 18 years), guardian of a developmentally disabled adult. Here, we would consider guardianship of a minor in comparison to what is known as child custody.
Guardianship: An individual who takes care of another person or of another individual’s property is a guardian. The difference between these similar terms is made clear by the fact that, a guardian is not a parent. He/she may be a close relative of the child or parent. It is sought when caregivers intend that the child should have a permanent home, and where parental rights are not concluded. Sustaining relations with the extended family is also one of the purposes.
Custody: Here, it is simply the legal right to take care of a child (such as a child whose parents are divorced). Child custody deals with the rights and duties of both parents towards their children. It is the division of responsibility, especially as allocated between the divorcing parents.
Guardianship: Orders are given by probate courts, which primarily deal with matters of probate and administration of estates. It is generally a more precise and cohesive order, as it legally hands over the child into the guardian’s care. Guardians may also be supervised by the courts.
Custody: Allocations are made by family courts. This is most often seen to be an arrangement amongst the parents regarding the future obligations of their kids, following their divorce order.
Guardianship: Here, the entire responsibility of the ward rests with the caregiver. All decisions regarding the ward’s education, welfare, health, and any other tasks requiring support and maintenance come within the purview of the guardian’s duty. For example, looking after the ward’s food, clothing, shelter, educational needs, safety, protection, medical and dental care, physical and emotional growth, etc.
Custody: There are two kinds: Legal custody (who makes important decisions like education, health care, etc. for the child); and Physical custody (who the children live with). Both legal and physical custody can either be joint or solely the responsibility of one parent. Responsibilities under legal custody include school and child care, religious activities and institutions, medical, psychological or other mental health counseling or therapy needs, extracurricular activities, etc.
Guardianship: The guardian is authorized to take important legal decisions for the ward; for instance, regarding any property issues. He/she is rather primarily allocated that duty. Guardianship is normally both, physical and legal. It is a greater obligation than that of custody. Guardians may also require to report to the courts annually.
Custody: The custodian also has to decide for the child. However, there can be a situation where the child is with one of the parents on a weekend. So, the non-custodial parent becomes responsible for the child, but cannot take any legal decisions for the kid.
Guardianship: This can more or less be a long-lasting relation. It ends only upon either the death of the guardian, or when the minor grows into a major (adult). The court too can terminate the guardianship if the parents become capable of taking care of the child.
Custody: In case of custody, the court can order sudden modifications, changing the custody of the child, in cases of circumstantial events in the life of either of the parents.
If the best interest of the young one is kept in focus, all legal intricacies can be sorted out. It is observed that if both the parents go along well with each other, the development of children is achieved in a better way; which is also an example of the ‘reasonable visitation’ order, where visitation is kept flexible to suit the needs of the child.