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Divorce Help | April 3, 2020

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What Is the Difference Between Legal Guardianship & Legal Custody - Divorce Help

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In certain instances people might substitute the term “legal guardianship” and “legal custody” for one another. However, these two terms are not interchangeable and in fact have different definitions in the family law legal realm. 

The difference between custody and legal guardianship is that legal custody is granted to someone that is not the child’s biological parent. An individual can be granted custody if they are not a relative of the child. 

What is Legal Guardianship?

Per the California Courts Judicial Branch website, guardianship is “when a court orders someone other than the child’s parent to”:

  • Have custody of the child; or
  • Manage the child’s property (called “estate”); or
  • Both of the above 

A Legal guardian can have two different responsibilities. They can be the guardianship of the person, or the guardianship of an estate. 

Guardianship of a Person 

If an individual is identified as the guardian of a child, they are expected to have the same responsibilities that a parent would offer. There are no limitations as to who can be a guardian, so long as they are not the child’s biological parents. A guardian could be a relative, friend, family member or another individual capable and willing to raise the child like a parent would. 

Guardianship of the Estate

A guardian of the estate is tasked with managing the money, income or other assets or property until the child turns eighteen years old. This may be required if a child inherits money while a minor. 

In certain instances the guardian of the estate and person can be the same individual. In other cases, two different individuals will be tasked with the different responsibilities. 

What is Legal Custody?

Legal custody can involve joint custody, or when both parents share the rights and responsibility of custody over a child. This involves decision making responsibilities regarding the health, education and welfare of a child. 

According to a child custody mediation lawyer, the biological parents can request a court hearing that involves a psychiatrist, psychologist or other family relations professional to help outline the appropriate course of action. Mediation, if applicable to the situation, is far cheaper than litigation and an attorney well-versed in the negotiation proceedings can help facilitate the process in a timelier more budget friendly manner. 

If the parents do not agree, then they should have open forms of communication and cooperation regarding types of decisions or working out a plan involving decision making responsibilities. 

The courts will  decide on the “best interests of the child” and will consider several variables regarding the welfare off the child including:

  • Age of the child
  • Health of the child
  • Emotional connection between parents and child
  • History of familial violence or abuse
  • Ties to school, home or other community events

The courts do everything in their power to provide the best possible situation for a child impacted by a divorce. The courts have to weigh several pieces of information to provide the best outcome for the child or children. 

See also Helpful tips to Navigate a Divorce in Southern California

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