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Child Custody & Guardianship | Legal Custody vs Legal Guardianship

Child Custody: Legal Custody vs Legal Guardianship

Child Custody: Legal Custody vs Legal Guardianship

If you have legal custody of your children, you are responsible for making important decisions about their lives, such as where they go to school, what religious instruction they receive, whether they need tutoring or psychological counseling, or when they see a doctor.

The courts prefer it if you and your spouse made these decisions together while you were married. The majority of courts prefer parents to share legal custody and make decisions together for their children.

Legal custody is also known as joint custody. There are many types of legal custody. Often one parent is the primary caregiver in an intact marriage, and this can also be true after divorce, even if they share joint legal custody. In the case of a child who needs academic assistance, the primary caregiver can make many decisions that fall within legal custody, including authorizing routine or emergency medical treatment. The other parent has a legal right to participate in those decisions, but it’s up to the parents to figure out how to make it work practically. One parent may agree that it is easier and more efficient to have greater day-to-day responsibilities.

If parents are unable to agree on simple things, like where the children should receive medical care or whether they should take piano lessons, joint legal custody can become a battleground. Every decision can become a fight if one parent creates an ongoing conflict over this type of issue.

Judges who make such decisions must also endure a miserable experience. A judge will usually grant sole legal custody to one parent if parents disagree on every issue regarding their children. Judges are most likely to grant sole legal custody to one parent if parents disagree on every issue related to their children, the most common solution is for the judge to grant sole legal custody to one parent.

In this case, the child’s one parent has the sole right to make decisions about the child. 

Judges may also order joint legal custody, but designate one parent as the tie-breaker if the parents cannot agree. This is not very different from one parent having sole legal custody, but it does encourage both parents to be involved at least in attempts to reach a resolution.

Physical Custody of the Child/Children

A child’s physical custody refers to where he or she lives on a regular basis. A child’s physical custody can be shared or granted solely to one parent. A child’s custody arrangement can have repercussions years later. The parent with sole physical custody, for example, may move away with the children if he or she wishes. In order to prevent a move, the noncustodial parent must show that the move would be detrimental to the children in court. In other words, if the other parent’s attorney tries to convince you that it doesn’t matter whether you let the other parent have sole legal custody even though you spend significant time with the children, don’t believe them. Make sure you speak to an attorney about whether the decision could cause problems in the future.

Joint Custody of the Child/Children

Many judges prefer to award joint physical custody to ensure that children have regular contact with both parents. It is common for judges to assume joint physical custody is better, and those who disagree must provide reasons why it isn’t a good idea in that particular case. Children with shared physical custody get to have two engaged and involved parents as well as two real homes. They do not have to go to their other parent’s homes to visit their other parent.

Having joint physical custody doesn’t always entail an exact 50-50 split in time, but it’s usually close to that. It works best, however, if the parents live close enough to each other so that the kids can easily transition back and forth between homes and can maintain their regular activities no matter where they are. When the parents don’t get along, sharing physical custody isn’t always the best option. The transitions between parents create too many opportunities for conflict.

Sole Custody and Visitation

Physical custody usually goes to the parent with the kids most of the time, while regular visitation rights go to the other parent.

 Visitation or Parenting Time

A very common arrangement is for one parent to stay in the family home with the kids. The children spend most of their time given regular scheduling time with the kids, called joint physical custody

In legal terms, the parent with sole physical custody is the custodial parent and the other is the noncustodial parent who is given regular scheduling time with the kids, called joint physical custody standard “Wednesday night dinner and every other weekend” arrangement. 

Commonly, the mother had sole physical custody, the father had visitation rights for one dinner a week and every other is given regular scheduling time with the kids, called joint physical custody. The mother had sole legal custody as well. That schedule is still used regularly, but so are a lot of other schedules.

Custodians vs Guardians

Frequently Asked Questions

Are there custodians and guardians empowered to make decisions? 

A custodian or guardian has the responsibility of taking care of a minor. You may have varying levels of decision-making authority, depending on whether you have custody or guardianship.  When you have legal custody, you are responsible for the welfare of the child. The topics covered include health care, education, financial matters, as well as other basic needs and legal rights. 

When you have guardianship over someone (also known as “the ward”), you have the authority to act on the child’s behalf. In most cases, guardians make daily decisions regarding a person’s care and welfare, rather than making “big decisions.” 

Who appoints custodians and guardians?

Children can be guarded by their biological parents. If you are unable to care for your child, a judge will appoint a guardian. In general, the courts will respect parents’ wishes, but there may be times when the court overrules a parent’s choice and appoints someone else to care for the child.  

How long does a Guardianship last?

If the biological parents are still alive, guardianship is often temporary. However, if the parents have passed away, a court can award the award to permanent guardians. Guardianship, in this situation, generally lasts until a person turns 18 years old. 

There are several reasons why guardianship may expire before an 18-year-old’s birthday. Becoming a member of the military, getting married, or starting a registered partnership, among other reasons, can cause a guardian to cease fulfilling his or her responsibilities. 

Is it possible to appoint a guardian for an Adult?

A guardian may be appointed when an adult is incapacitated or disabled.

Do Guardians Have to Meet Any Requirements? 

Several requirements must be met by a guardian. They include:

You must be at least 18 years old

Maintain good health

Having no criminal record

Who appoints Guardians or Custodians?

If you are no longer able to do so, you can express your wishes for who you want to raise your children, but the guardianship court is ultimately responsible for naming a custodian or guardian based on the child’s best interests. Establish a guardian for your children as part of your Estate Planning process. You can be sure your child will be cared for according to your wishes if you pass away or become incapacitated if you choose a guardian. 

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