About Legal Guardianship
Legal guardianship is a more permanent arrangement than custody or parenting time and typically arises when parents are unable to care for a child. The legal rights of a guardian are essentially the same as that of a parent. A legal guardian is responsible for a child’s care, custody, and control. The specific rights and responsibilities of a legal guardian may be outlined in a court order. In certain situations, local agencies may have the right to petition the court for guardianship of a child.
Generally, a legal guardian has exclusive rights to make decisions regarding the child that a parent would make, including decisions regarding medical care and schooling. Guardianships can last for short periods of time or until the child turns 18 years of age. In most cases, parents relinquish their parental rights in order to establish guardianship. Once a guardian has been granted , a parent cannot regain rights without first petitioning the court to revoke or terminate guardianship.
Not just anyone can become a legal guardian. For the child’s best interest, a relative or close friend of the family is usually the ideal candidate to serve as a guardian. However, if parents cannot care for a child, a state agency may place the child with a foster family as a temporary guardian. Also, a guardian may be an agency or institution, rather than a person.
In Illinois, courts adhere to the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act to determine legal guardianship. Under the Act, courts have jurisdiction over a ward’s home state; which is basically where they have a presence for six consecutive months, or six consecutive months within a longer period. A guardianship may be terminated upon an adult ward’s emancipation or passing.
Legal Definition of Child Custody
Child custody refers to the legal relationship between a parent (or third-party like a grandparent) with a child following divorce or in situations in which they are not in a traditional parenting arrangement. Parents who are raising their children together do not have the same custody issues as divorced/separated parents or those who are not married. However, if there is an issue with how parents divide time with their children, the question must be asked: who is the custodial parent and who is the non-custodial parent? Identifying the custodial parent is one of the first steps in creating a custodial scenario.
There are physical and legal custody arrangements in PA. Physical custody refers to where the child will physically reside during any given period of time, while legal custody refers to who has the decision-making authority about essential elements that impact the child’s well-being and up-bringing. In a nutshell, physical custody is awarded for where someone lives and legal custody is awarded to make decisions concerning the child’s welfare. The rights and duties involving physical custody are the rights and duties to provide a home, nurture and care for the child, supervision of the child, to maintain discipline, and to provide routine care. Legal custody includes the decision about education, medical, dental and health care, religious upbringing, and the legal rights to make decisions concerning your child’s upbringing by the parent with legal custody.
There are different types of physical custody: sole, shared, primary, partial and supervised custody. To be a primary custodian means that you are the custodial parent with the most amount of time with the child. To have shared custody means that the child’s time will be divided in a 50/50 schedule. To have partial custody means that the child will be in your physical custody but the other parent has custody at other times. Supervised custody occurs when there are issues with the child’s safety and welfare.
The issue of custody is always centered on the best interests of the child. This means that the judge is legally bound by law to focus on what is best for the child or children despite what that might mean to the parents. Typically, in the best interest of the child, the courts want to ensure the child has continuing contact with both parents. This does not mean that the parents will necessarily obtain equal parenting time, but the court’s goal is to assure the child has time with both parents. The factors that the court looks into are: extended family relationships, parental duties and responsibilities, domestic violence, parental conflict, parental readiness, physical and mental conditions of parties, and which parent has been the primary caretaker.
Guardianship vs Custody: Key Points Highlighted
The key differences between legal guardianship and custody are many. One significant difference is the level of legal authority. While both arrangements involve the care of minors, legal guardianship tends to provide a higher level of authority to the guardian than what is usually granted to a standard custodian. A guardian usually has the same legal authority over the child as a parent. This includes legal decision-making power over many issues, including medical and education considerations.
This leads to the next large difference: legal guardianship generally continues until the child reaches adulthood. In most places, that age is 18. Custody can, in some circumstances, be altered as the child matures, particularly if the child expresses a desire for the change. Guardianship, on the other hand, is often a more stable arrangement that is not likely to change (although there are also instances when guardianship can be reassessed).
There are specific circumstances under which each of these options is best suited. For instance, a parent who would prefer to keep their children out of the foster care system should explore legal guardianship, as this will allow them to choose a caregiver from among their loved ones. However, in most situations, custody may be the better choice.
In situations involving long-term care for children, guardianship might make more sense. If the biological parents have died or lost their parental rights, guardianship allows a loved one to best care for children. Alternatively, if parents cannot provide for their children because of various concerns—such as incarceration, substance use disorder or addiction, serious mental illness or terminal illness—they may be unable to fulfill the regular judicial and procedural requirements of custody, making guardianship a more sensible option.
Custodian caregivers are generally not required to go through the court system. They can usually assume the role of custodian based on an informal arrangement with the biological parents. Legal guardianship, on the other hand, requires court oversight — meaning those who are interested in maintaining guardianship over a child must formally petition for it.
Whenever possible, both parents are included in a guardianship decision. Although a judge may decide to establish a guardianship even with one parent in disagreement, if both parents are able to competently participate, they will be invited to do so. The same is not true with typical custody arrangements. If only one parent is able to complete a petition for custody, they can still assume primary custody with little input from the second parent.
Both arrangements are often put in place when there are severe issues with the biological parents, such as history of substance abuse, neglect or other forms of parenting that put the safety of the child in jeopardy.
When is Guardianship Suitable?
In some cases, custody will be inappropriate and guardianship will be a far better option. If a parent is unable or unwilling to care for their children due to mental incapacity, or even a very busy and demanding career, the Probate Court can appoint a legal guardian for that family. A legal guardian will be empowered to make all decisions for the children on behalf of the parents. In these circumstances, a guardianship would be the more appropriate choice than a divorce or paternity case in Family Court. Additionally, if both parents agree to appoint a Guardian for the children, it can save the time and cost of a divorce or paternity case in Family Court.
When is Custody Arrangement Best?
In many legal situations, particularly those involving the family law, custody arrangements are the better option for an individual and their children, rather than legal guardianship. Legal guardianship is generally only the right option for a small number of situations, but may be the best option if you need to handle a temporary placement for a child and are not yet ready to choose a more permanent decision.
For example, in situations with young children where all choices are difficult, such as divorce or separation, custody is typically the better option . Although this will still strain organizations within the court system, it helps everyone involved more than guardianship in the following ways:
Custody arrangements are also the typical choice when it comes to cases involving children over the age of 15. Custody remains the more common alternative, but it is possible to assign a legal guardian over children at this age, so long as the rights of the biological parents do not override the wishes of the child.
These are generalizations and though guardianship is available as an option you should seek counsel from a qualified family law attorney to understand the facts of your situation and the options available to you.
Applying for Guardianship or Custody
The legal procedures for obtaining both guardianship and custody require the filing of a petition with the court and both types of orders remain in effect until the child reaches the age of majority (which is 18). In some cases, guardianship may be terminated prior to a child reaching the age of 18.
To obtain guardianship over an adult the petitioner must file an incapacitated adult form petition and verify the form under penalty of perjury.
A guardianship is usually necessary if the adult is incapacitated and unable to make important decisions on his or her behalf. In that situation, a guardian for the person or property or for both may be appointed by a court. The authority of the guardian is set forth by statute and in the court’s order. In general, a guardian has the same powers as parents of minor children (except as limited by statute or court order), and is subject to the same fiduciary standards.
Guardianship proceedings are commenced with the filing of a petition for guardianship. The petition must allege the facts that require the appointment of a guardian. Once the petition is received, the court will set a date for hearing and notify all interested parties. The individual for whom the guardian is appointed may also be entitled to notice of the proceedings. In most cases, the person seeking guardianship will have to attend the hearing and provide competent evidence that the guardianship is necessary. If the court finds that a guardian is needed, the court will enter an order appointing the guardian. A bond may have to be posted depending upon the amount of money involved unless the bond requirement is waived.
An individual under the age of 18 years requires a legal guardian to represent him or her if the child is not living with his/her parents and not married. A Court appointed guardian may be given the right to file for custody if the child is not living with his or her parents or guardian. A Guardian ad litem is appointed by the Court to represent the child’s interest. The Guardian ad litem provides a report to the Court about who should have custody of the child. In Pennsylvania the Guardian ad litem also holds the power to settle the custody action. Pennsylvania law provides for intermediate and final custody proceedings. The final custody hearing results in an Order of Court which directs the parties as to the matters of the custody issues.
The Court shall appoint a Guardian ad litem to represent a minor in a custody proceeding when the parents do not agree about who should have custody of the child. In many cases, parents file for custody after a divorce or separation and cannot agree on the terms of custody for the child.
Unlike a guardianship proceeding, a special counsel may be appointed to represent an incapacitated person (instead of the guardian) if it appears that the guardian may have a conflict of interest. When appointed, the special counsel has all of the rights and powers of a guardian except the right to act as guardian or to appoint another person to be guardian.
When a person is not competent to sign his/her own name, a guardian or special counsel typically sign for that person. The incapacitated person is a party to all of the proceedings, but the guardian or special counsel conducts the proceedings on the person’s behalf.
Effects on the Child
Legal guardianship and custody can have a strong impact on the child’s well-being. If the child has a strong bond with the guardian or custodial parent, they may benefit from the stability of a continuous relationship with that person. The ability to remain in their own home with the person they consider to be their primary caregiver can mitigate some of the effects that living outside of the home with a different family may have had on a child. Continuity of care and a normal routine can also be beneficial for the child.
Having a stable home life with a familiar caregiver is important for the child’s ability to form healthy relationships. If there are issues of neglect or abuse that give rise to the guardianship or a determination of custody, having a strong bond with the guardian or custodial parent can help the child feel more secure in their relationships, making it less likely that these things will happen again.
Emotional stability is vital to the long-term success and health of a child, especially those who have been through traumatic situations. Having a consistent and stable caregiver can help children cope with difficult situations and may minimize the number of traumatic events that the child is exposed to over extended periods.
Final Thoughts
At first glance, legal guardianship and custody might seem similar, both in name and function. Both are about looking after the needs of a child. However, the two are not the same. As this article has explained, legal guardianship tends to be more long-term, set up for life decisions, while custody is usually temporary, used in the event of divorce or brief parental absence. Both can be put in place through a family law order or sometimes a voluntary agreement, though a legal guardian usually does not have to be related by blood, while a custodian generally should be . In many cases, guardianship and custody laws work well in tandem. For instance, custody arrangements may involve guardians having the child living with them, while the child’s parent retains some type of limited parental rights. Or, perhaps an alternative caretaker is otherwise selected as a guardian for when parents are absent or unavailable. Ultimately, the decision about whether guardianship or custody is appropriate must be made on a case-by-case basis, based on which option would serve the child in his or her best interests.