Do Guardianship Papers Overrule Custody?

By Jennifer Kiesewetter, J.D.

Do Guardianship Papers Overrule Custody?

By Jennifer Kiesewetter, J.D.

Guardianship and custody are similar arrangements. Both legal arrangements provide for legal or physical care, or both, of a minor child. A probate court typically awards guardianship whereas a family court awards custody. Each role, however, has a variety of distinctions when it comes to the day-to-day care of a child and other legal rights.

Man and little girl sitting together on a couch reading a book

In specific circumstances, guardians may overrule a custodial parent. Let's look at some specific instances where a guardian may have decision-making power over a custodial parent.

Understanding Guardianship

A guardianship assigns an adult the ability to act for the benefit of another person, such as a child. Guardians can act on behalf of a person or a person's property, such as if a minor child was left a trust or life insurance proceeds after the death of a parent.

If one or both parents are incapable of caring for the child, because of disability, illness, death, or imprisonment, the parents can voluntarily request that another adult serves as a guardian for their children during this time. Additionally, a court can award a guardianship if the parents can't care for their children.

Guardians and Parental Rights

Guardianships can either be temporary or permanent. As a guardian, the designated person can authorize medical care, make educational decisions, and care for the day-to-day needs of the child.

In the case where a court assigns one, the guardian will have custody of the child. However, parents do not relinquish their parental rights. They preserve these rights unless the parents decide to terminate their legal parental rights to the child.

Understanding Custody

A family court decides who has custody during a divorce or legal separation. And there are two types a court can determine: legal and physical. When a child is born to a parent, that parent naturally has both legal custody and guardianship of the child. With legal custody, a parent has the right and obligation to make decisions about a child, such as religious, medical, and educational. In a divorce, a court may award joint legal custody, meaning both parents may equally decide how to raise their child.

With physical custody, the parent has the right for a child to live with them. Often, this parent is called the custodial parent. The court may grant the noncustodial parent visitation. Laws can vary from state to state, so be sure to check your local laws on custody and visitation.

Other family members may petition for custody if the parents are incapable of caring for the children or have died. If a biological parent is still alive, and it's in the best interests of the child, the court will give preference to the biological parent.

Terminating Guardianship and Custodial Arrangements

If the biological parents requested a guardianship while they were unable to care for their child, then those parents can terminate the guardianship when they can resume parenting. If a court awarded one, the biological parents could petition the court to reconsider its decision.

Further, a court can terminate a parent's custody arrangement if the court believes that the parent can't or shouldn't care for the child. Because the state laws vary in these situations, and because the care for children is instrumental to their well-being, you may want to consult with an experienced probate or family law attorney about your options.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.