Do Guardianship Papers Overrule Custody?

By Beverly Bird

Differentiating between custody and guardianship can be complicated because they are essentially the same thing. One distinction is that family courts usually grant custody orders, and probate courts grant guardianship orders. Custody is often an arrangement between parents pursuant to a divorce decree, determining which of them their child lives with and who makes important decisions on the child’s behalf. Guardianship usually involves a more cohesive and precise order, legally placing a child in a guardian’s care.

Parental Rights

Guardianship usually involves a child living with her guardian. Therefore, the guardian has physical custody, and the child's parent does not. However, biological parents maintain their parental rights, even when they don't have physical custody. Their rights are not terminated by the guardianship -- they’re “suspended.” In this respect, a guardianship order overrules the custody provisions of a family court order, because the guardian has the right to act on behalf of the child, while the parent's rights to do so are legally on hold.

Guardians’ Rights

Parents are automatically the guardians of their children at birth, unless or until a probate court order names someone else. As a non-parent, guardianship awards rights to a third party caregiver that he would not enjoy otherwise. For example, he can attend parent-teacher conferences in lieu of the parent and make educational decisions. He can authorize medical care for the child. He can sign authorizations permitting school field trips or extracurricular activities. He can and must do everything the child’s parent would do, had the parent’s rights not been suspended.

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Custody in Foster Care

Occasionally, social services may remove a child from her home due to a dangerous situation involving injury, abuse or neglect. When this occurs, the court places the child in foster care. If the parents don’t or can’t fix the problem that led to their child’s removal, the state may terminate their parental rights, rather than just suspend them as a guardianship order would do. This paves the road for another family to assume guardianship of the child or to adopt her. After a court has terminated the parents’ rights, and before it approves and finalizes an adoption or guardianship, the state usually has custody of the child. In this case, the state is usually also the child’s guardian, so custody and guardianship are one and the same.

Termination of Guardianship

Parents can also voluntarily award guardianship to another individual when they can’t care for their children themselves. When a parent does this, she usually retains the right to revoke the authority at any time, although she would have to petition the court to do so. Parents can award guardianship on a permanent or temporary basis. Temporary guardianships usually have a time limit imposed by the probate court, such as nine months or a year. At that time, the parent and guardian must either renew the guardianship arrangement or it automatically terminates. Temporary guardianship is much the same as permanent guardianship regarding the guardian’s rights and responsibilities. However, in some states, such as Connecticut, the parent and the guardian share those rights. The parent's rights are not suspended. Therefore, in a respect, both the parent and the guardian have legal custodial rights and both can make decisions for the child.

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