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What's the difference between custody and guardianship?

child holding hands.jpgWhile issues regarding family care are usually considered to be the most private issues in our personal lives, sometimes the legal system must be used to determine who can make decisions on behalf of a loved one. Most commonly, these situations occur through divorce or the incapacity of a child or other family member.

Custody and guardianship often get confused for one another. In reality, they are far from similar.

What is custody?

Custody most often refers to a parent's legal relationship to his or her children. There are two different forms of custody: physical and legal. 

Physical custody refers to the amount of time in which a child is physically in a parent's care. Legal custody refers to a parent's power to have input in their children's life decisions such as education, medical care, and extracurricular activities. More often than not, parents will have joint legal custody, meaning they have equal input regarding major decisions affecting their children's lives. In truly exceptional circumstances, someone other than the parents may have the ability to obtain custody of a minor child.

What is a guardianship?

Guardianships usually occur after a child turns 18. Generally, the Courts consider an 18-year-old an adult for legal purposes, and therefore, his or her parents no longer have the right to make decisions on his or her behalf. However, if an adult is incapacitated or otherwise incapable of making decisions on his or her own, a parent or other interested person may file to become a guardian so that they can make legal decisions on behalf of their loved one.

There are two main types of guardianships: general and limited. A general guardianship allows the guardian to make all decisions on behalf of a person who has been deemed incapable of making any decisions. A limited guardianship is usually applicable when an incapacitated adult is capable of making some major life decisions, but not others.

There are many more ways in which a loved one may obtain some legal right to help an incapacitated or otherwise incapable family member. If one of these situations applies to you, you should speak with an attorney to help find the right solution for your loved one going forward.

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Phillipsburg Office
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