What is the Difference Between Guardianship and Custody?

Custody is the exclusive purview of a parent.  A parent is the natural guardian of a child. When a child is born there is a presumption of legal and physical custody of the child to the biological parent(s).  However, for every rule of law there are exceptions.

father holding hands with child 2

If a child is born to a married couple, the presumption of legal and physical custody is in both parents.  If a woman has a child within 300 days of a marriage, the husband is presumed the father. But that can be challenged.  If a child is born out of wedlock, the father must establish paternity.  The father may voluntarily sign an acknowledgment of paternity at the time of birth, but that will only go so far in a legal dispute.  The courts usually will require a DNA test to conclusively establish paternity when a child is born out of wedlock and the father chooses to exercise parental rights. The presumption of legal and physical custody remains with the mother unless and until challenged in court. This can happen any number of ways: either through a custody dispute during a divorce, a challenge for custody from a father who has established paternity or if the state intervenes.

“Guardianship of a minor” on the other hand is by court order to a non-parent. Any competent adult can seek guardianship of a minor.  The burden is on the moving party (the applicant) to prove why they should be appointed and empowered with the “parental” rights over a child.  The rights and obligations conferred through the award, appointment or nomination of guardianship are almost identical to those of a parent; however, the guardianship and its powers and rights can be terminated relatively easily as compared to the termination of parental rights.  The guardian is entitled to child support either from a capable parent by direct payment from a parent or parents or from the state in the form TANF, Aid for Families with Dependent Children or any other cash award programs a state provides, as well as medical coverage and food assistance.

The appointment of a guardian does not necessarily terminate the biological parents’ “parental rights” though they may not exercise certain powers while the child is under a guardianship. The court may preserve the parent’s rights of visitation; the biological parent may, in certain circumstance, have accesses to information about school and medical decisions, though they do not have the right to make those decisions for the child while under guardianship.  The biological parent may petition the court for reunification with the child, unlike an adopted child.

4 thoughts on “What is the Difference Between Guardianship and Custody?

  1. Thanks for the information! I’m divorcing my husband after being married for ten years. We have three kids, so we’ll need to come to terms with a custody agreement. All of the children are ours, so it’s good to know that we won’t have to deal with guardianship details throughout the divorce process. He wants to have partial custody of the kids, but it seems like it would be best for the court to give me full custody of our children since I’m moving to New Mexico. That’s a major detail that we’ll need to figure out with the court.

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