What Constitutes Legal Guardianship?
Though gaining legal guardianship appears to be less common than attaining physical or legal custody of a child, the concept of legal guardianship is similar. Basically, a legal guardian has temporary or permanent responsibility for raising a minor under the age of 18 who is not biologically theirs. Guardianship provides a broad range of possibilities for care, and it can even last until the child reaches 18. When a child is placed in legal guardianship, the guardian is given a great deal of legal authority over her. They have the ability to make decisions about her future, ranging from medical decisions to enrollment in school.
As of 2018, more than 250,000 children live in legal guardianship homes in the United States. Unlike those who enter the foster system, these children live with their biological families. For example, many legal guardians are relatives of the child, such as grandparents or aunts. The child’s parents may still retain some rights, depending on the specific situation.
Another situation in which legal guardianship might occur is death or incapacitation. For example, if both parents of a young child die in a car accident, a relative may petition for legal guardianship. In these cases, the guardian may have responsibility for tasks that a parent would normally have, such as enrolling in school or planning for educational expenses.
Legal guardians will often work in conjunction with child protective services to arrange for the legal guardianship. In some cases, a foster family may also take on legal guardianship of a child. Although a guardian may obtain legal custody and guardianship , the legal rights of the biological parents do not end. Because of this, legal custody and guardianship are terms that are often used interchangeably. It is only in specific circumstances that the terms have significantly different meanings.
Guardianship does not have to be permanent, but in the vast majority of cases, it is permanent. Sometimes, these arrangements are allowed to proceed without court supervision. In these situations, the guardian will have custody without long-term legal guardianship. These arrangements are usually made between grandparents and grandchildren or a relative and a niece or nephew. In rare circumstances, a parent and grandparent may also decide to enter a written agreement for limited guardianship.
Iowa law defines limited guardianship "for a specific purpose by power of attorney or by court order." This type of arrangement may be used when a person is coming in and out of capacity but does not specifically require a guardian. For example, a child who is at college may have a parent as a limited guardian with the power to make school housing arrangements.
Fortunately, there is a way to differentiate between limited guardianship and permanent guardianship. In Iowa, a court appoints a guardian for a "minor" under Iowa Code Section 633.556. The term "minor" refers to an individual under the age of 18. When a court appoints a guardian for a "minor," it is inferred that this guardian will have a broader scope of responsibilities than a limited guardian. A limited guardian has more narrowly defined responsibilities as set out in court documents.
Defining Child Custody
A child’s custodial arrangement is the legal determination governing where the child will live, who will be responsible for the day-to-day parenting of the child, and who has the ultimate authority over the decision-making, such as education, health care, religious upbringing, and many other needs in the child’s life. A person with whom the child lives, and with whom the parent shares legal decision making, is a "Parenting Coordinator." A person with whom the child lives, who does not have legal decision making authority, may be a "Guardian." The person may have legal guardianship authority to make specific decisions or general authority to make all decisions. All alternatives are "Legal Guardianship."
Custody is still commonly used in the vernacular and has two primary types: physical and legal custody. Physical custody is the place where the child actually resides. Legal custody is the authority to make decisions. Specific legal decision making may include education, medical treatment, religious guidance, extracurricular activities, and other matters of importance to the child. Some decisions and legal designations are more important than others. For example, decisions relating to the child’s religious upbringing and education are often subjected to more rigorous judicial review than decisions over sports participation. An ideal custodial arrangement permits both parents to share physically with the child and have legal decision making authority. For example, a paternal grandparent who lives with the child may have sole legal decision making authority. Single parenting might involve sole custody with visitation rights by the other parent. The ideal custodial arrangement is not always achievable, but is certainly the goal if you and your spouse are able to cooperate.
Courts have broad authority to determine the best interests of children in custody matters, subject to legislative guidance. There are statutory prescriptive factors which courts are required to consider in making appropriate custody awards. The statute requires consideration of all relevant factors, including the emotional, physical and financial conditions and needs of the child as well as the ability and disposition of the parties to meet the child’s needs. The actual wording of the statute is: "(a) The wishes of the parent as to custody and the wishes of the child as to the child’s custodian with appropriate safety considerations; (b) The interaction and interrelationship of the child with the child’s parent or parents, with the child’s sibling and with any other person who may significantly affect the child’s best interest; (c) The children’s adjustment to the child’s home, school and community; (d) The mental and physical health of all individuals involved, including any history of physical abuse or sexual abuse; (e) The parent most likely to allow the child frequent and continuing contact with the other parent; (f) The level of conflict between the parents and the willingness and ability of each parent to coparent and reach shared decisions in the child’s best interest; (g) The history of each parent’s involvement with the child, if any; (h) Geographic proximity of the parents to each other, to the extent that distance between the parents will negatively affect the child’s ability to maintain a relationship with both parents; (i) The availability of other suitable options for child custody and alternative child care; and (j) The recommendation of an independent expert of the court, if admitted by the court." 14-10-124, C.R.S. (emphasis added).
The Distinction Between Guardianship and Custody
While legal guardianship and child custody offer very similar outcomes for your child, they are legally distinct concepts with different requirements, processes, and implications. In short, legal guardianship is the legal right to make decisions on behalf of a child under 18, while child custody is an agreement between parents (both of whom still retain all rights to make decisions about their child).
1. Decision-Making
Legal guardianship grants the guardian the legal right to make decisions for the child about schooling, healthcare, religious affiliation, and general wellbeing. A parent who has lost custody of their child to a legal guardian gives up the right to make these decisions and cannot simply return to decisions-making without revocation of guardianship. Generally, a parent in this situation has some visitation rights or even limited custody, but the child’s wellbeing takes priority.
In contrast, custody gives parents full decision-making rights regarding their child as long as they remain fit (i.e., mentally and physically stable core characteristics). Those decision-making rights include where the child lives (commonly in the parents’ households), what type of medical care they receive, where they attend school, and other day-to-day choices regarding the child’s wellbeing and upbringing.
2. Duration
Legal guardianship is a permanent assignment of responsibility until the child turns 18. The legal guardian assumes all responsibilities for the child until their birthday, at which point they can no longer be held responsible for decisions and care.
Custody, on the other hand, is temporary for the duration specified in the court order (typically until the child turns 18, but in some cases longer) and can be revoked by the court at any time should parental rights be restored.
3. Obtaining Guardianship/Custody
Legal guardianship can be obtained by a concerned individual through the probate court. The individual must be at least 18 years of age and file the request with the court. The process requires court approval, and if the request is approved, the legal guardian will be granted the power to make all legal decisions for the child age 17 and under.
In contrast, custody is signed off by both parents and is considered temporary until it is revoked by the court or until the child turns 18. It does not require a separate hearing, but rather is part of the overall divorce process (if both parties are agreeable), and ends automatically when the child reaches 18.
4. Legal Requirements
Legal guardianship can only be established when the judge determines that the current parent is unfit (i.e., inability to care for and make decisions on behalf of the child). Guardianship typically occurs in cases where the parent has been deemed unfit to fulfill their parental duties to care for their child, while legal custody involves voluntary decisions by the parents to enter into the custody arrangement.
Custody is not generally given until after the termination of parental rights, which allows parents to retain ultimate decision-making authority. Parents in a custody arrangement agree to the terms listed in the custody agreement (also known as the parenting plan).
When to Pursue Guardianship Instead of Custody
There are several situations and circumstances that may merit seeking legal guardianship when custody is not appropriate. For example, suppose there is a minor involved who needs long-term, intensive care. If the child carries a somewhat serious medical condition and the birth parents cannot provide the long-term treatment required for the betterment of the child, then guardianship is often the best solution. Many children with chronic illnesses such as diabetes require continual treatment that the birth parents may be unable to assist in their child’s care. The attorney can seek guardianship so that the child has an advocate for their care. Thus, the guardian is a surrogate decision-maker regarding their medical care and needs.
Another situation where legal guardianship is given to those over custody is when the birth parents are unwilling or unable to provide care for the minor child. Sometimes the birth parent has died or is unable to care for their child’s needs due to addiction or incarceration. Although parents may lose their parental rights, a relative willing to take the step to become a guardian gives stability, care, and nurturing to the child. Guardianship can be an alternative to adoption in such cases. Although there are specific benefits to choosing guardianship over adoption, these usually come with certain drawbacks. The legal guardianship will eventually come to an end at some point, therefore the child may be left with even greater uncertainty than had the judge ruled on custody. In addition, the birth parents may not agree with this arrangement and contest the guardianship – although they have lost parental rights, the law does not prevent them from making this request without appropriate justification.
Legal Procedures for Establishing Guardianship and Custody
The legal process for establishing a guardianship or custody arrangement may vary depending on the situation and the needs of a particular family, but the general steps for each process are fairly consistent. Regardless of the type of arrangement that is being sought, both processes usually begin with a petition. The petition may be filed by either parent, another family member, or a third party who has some interest in the outcome. The petition will need to be filed with the appropriate juvenile or family court and present a statement of facts supporting the request. Once the petition is filed, the court will usually issue a notice of the hearing with a date indicating when it will be heard. At the time of the hearing, the petitioner must show by clear and convincing evidence that the circumstances justify the award of guardianship, or legal custody. This is the highest standard of proof in family law courts, which is significant in these types of cases. Ultimately, the goal is to make sure that the child’s best interest will be served by the order.
In a guardianship context, the first step in the process of establishing the arrangement is to file a Petition for Guardianship. This is the only type of guardianship that does not require the appointment of a lawyer. When seeking guardianship, either the personal representative of the child’s estate, as the next of kin to the child, or any adult resident of the state of Indiana who has knowledge of the child’s condition or the circumstances surrounding his/her care or support can petition the court . If granted, the guardian of the person application is generally accessible to all adults; however, an adult relative, court-approved foster parent, or other qualified person, with some connection to the child, such as a teacher, neighbor, or childcare provider, may also petition the court for appointment as Guardian of the Person.
In a custody situation, parents may choose to file for an Order of Custody by Agreement. This is where the parents have agreed on some form of custody arrangement, but the court still retains some ability to review the situation. If an agreement cannot be reached, or if it has been reached but the court has concerns about the arrangement, a Petition for Custody with or without Placement will need to be filed. Given the potential issues with a custody arrangement, there are additional forms and steps involved, including providing relevant financial documents, a Parenting Plan and/or Parenting Time Guidelines, as well as an Affidavit Of Consent.
Regardless of the type of guardianship or custody arrangement being sought, a hearing is usually scheduled approximately 6 to 8 weeks after filing the petition to establish the arrangement, at which the judge will hear evidence from each side in order to determine if an order establishing guardianship or custody is appropriate and should be awarded. The court will then either issue the appropriate order at that time or place the matter on a for review at a later date.
Impact on the Child’s Overall Well-Being
Custody and guardianship can play crucial roles in the emotional and educational well-being of a child. When making decisions on physical or legal custody, the health, welfare, and dreams of a child must be kept in mind. Both parents are expected to act in the best interests of their child and strive towards meeting their needs. When a minor has a legal guardian appointed instead of a parent, the guardian is expected to meet the same expectations. Custodial and guardianship situations have a direct influence over the stability and happiness of a child. An ability to provide for a child’s basic needs is vital in reaching an agreement, which covers education, housing, parental support and other benefits for the minor. Failing to meet a child’s needs may result in legal action for non-compliance in either situation. A minor’s life can be impacted by the physical and emotional support that is provided. Legal guardianship and custody can affect a child’s behavior, social opportunities, educational future, and general happiness. Regardless of where a minor will live, it’s important for all involved to consider their needs.
Legal Counsel and Resources
For those grappling with the decision of whether to pursue legal guardianship or custody, it is advisable to seek professional counsel to fully understand the legal implications and processes involved. Legal aid organizations can provide free or low-cost consultations for those who qualify. Nationwide organizations, such as the American Bar Association, offer guidance in finding pro bono and legal aid resources within specific states . Several state Bar associations also maintain databases of lawyers who agree to provide services pro bono or at reduced rates. The National Association of Legal Secretaries provides additional guidance in locating lawyers specializing in the area of guardianship and custody. Before engaging with an attorney, be sure to ask about the fees for the consultation, and whether the consultation will be applied towards the total cost of legal services if you choose to hire the attorney.