Although custody and guardianship are similar in nature, they’re quite different. Custody can only be granted to a child’s parents – natural or adopted. Guardianship is when an adult, who is not the parent, becomes legally responsible for the child. A guardian is granted lawful power of care and control over a minor child.
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In most states, custody and guardianship are separate entities. A minor child may have natural or adoptive parents and a guardian at the same time. In order to be granted guardianship, there must be proof that the child is in a situation of imminent danger, where their physical health, safety or well-being is at risk.
When a guardian is appointed by a court, the parents are no longer the decision-makers for the child. Their parental rights are not terminated and their ability to act as the decision maker may be recovered if the reason for the guardianship ends.
In order for a guardianship to be created a petition must be filed and served on the child’s immediate family. The individual filing the petition may be evaluated by the Department of Social Services or the Court Investigator’s Unit. This will determine whether the individual is fit for such a role and if their guardianship will be in the best interest of the child.
For the court to grant a guardianship, the parents must consent, be incapacitated, be unable or unfit to care for the children, or have died.
If you feel as though a child is in danger and guardianship might be the right path for his or her family, contact one of our family law attorneys today.
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