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.

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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.


What affect, if any, to giving birth in another state for custodial purposes?

Where a child is born is very significant, in terms of what state has jurisdiction over the child, esp if an interstate custody dispute should arise. Pursuant to the Uniform Child Custody Enforcement laws, where the child is born and lives for the first six months of it’s life is the state that has jurisdiction to determine custody issues, unless the child is over 6 months of age and has established residency in another state.   Another factor that would affect what state has jurisdiction is whether the child is born in or out of wedlock, to a single mother or a married couple.

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Generally, if you are a single mother, and want State X to be the home state of the child, you should give birth there, and stay there with the child for at least six months. A brief visit to another state will not interfere unduly with the state’s right to jurisdiction; however if you there is no clear cut domicile and residency for the child within its first year, the court will look to broader issues such as where have the parents resided for the better part and what kind of ties to the community a child has with any of the states at issue. Further if you removed yourself with the child in utero, without consent of the father/husband you are looking at a more complicated legal situation.

If the father is an MA resident and is adamant about the child remaining in MA, you may have a problem if you have not clearly established the child as born and resident in the state of your choice, and the MA court may require you to return the child to MA. The less stable the child’s identity with another state, the more likely MA will find jurisdiction to award or determine any custody issues.

As always, I must advise anyone considering relocating to give birth to consult with an attorney.


I’m 16 yrs old. How can I become “emancipated”?

In some rare instances the courts have allowed a minor to become “Emancipated”–to assume their own responsibility for their own care and to severe the obligation for such care with the parent(s). In order for a court to allow such a legal severance of the parental duties, a petition must be file before a court of competent jurisdiction (usually a Juvenile or a Probate & Family court) where a hearing or series of hearings will be held.

In order to qualify for a legal emancipation you must:   (a) be married, or (b) you must be in the U.S. armed forces, or (c) you must be living apart from your parents or guardian and be managing your own money and attending school regularly, or (d)  the court must decide that emancipation is in your best interests, or your parents, or your minor child (if you have any).

You should consult with a lawyer specializing in juvenile law. The juvenile court or probate court may appoint one for you at no charge.
Here is a link to a website that gives you a summary review of the process.