What is legal custody
Legal custody is a term that establishes the rights of a person or persons to make decisions related to the wellbeing of a child. Anyone who has a child may hold legal custody, though in most cases it is awarded to one parent or both parents after a divorce. Legal custody does not determine where the child will live or what the visitation rights of the other parent will be, as that is established separately through a residential custody agreement or parenting time schedule. In the event that nobody in the family is able to care for a child , legal custody can be awarded to a guardian through the courts. There are two types of legal custody: sole and joint. Sole custody means that only one person holds legal custody of a child. This grants them the absolute right to make decisions regarding their child’s wellbeing. Joint legal custody is awarded when both parents have full parental rights to make decisions regarding the health and wellbeing of their child. With joint legal custody, parents decide together on medical care, schooling, religious upbringing and any other important aspect of the child’s life.
What is legal guardianship
In the context of Ohio family law terminology, the word "guardianship" is probably the least understood of the three terms—"legal custody" and "sole or shared parenting" being the other two legal terms for child rearing found in Ohio courts. "Guardianship," as noted in a recent post, has been mostly replaced in modern terminology by legal custody, but is worthy of mention. Under Ohio law, a legal guardian is an adult person appointed by the court to represent and take care of unmarried, minor children (under age 18). The rights, responsibilities, and authority of legal guardians are very similar to that of a custodial parent, only "broader in some ways and more limited in others." One important distinguishing factor, when there is a conflict between the two, is that the right to receive and control a minor’s earnings is given explicitly to the guardian. In contrast, purely custodial parents do not have a right to the earnings of their minors for any purpose, unless the earnings are given directly to the parent for the support of the child.
As is true with legal custody, for a legal guardian to make a minor’s medical treatment choices, the guardian must have rights to consent to such treatment. Unlike legal custody, however, legal guardianship does not terminate on emancipation. Guardianship of a minor child will continue after the minor turns 18, but only if the parent is ordered to pay child support. If there is no child support order, the legal guardianship will end, along with the obligation to care for the child. Legal guardianship grants the guardian the authority to file an action to adopt the child whose custody he or she possesses. Conversely, a final adoption decree of a minor child will terminate legal guardianship. Legal guardianship of a child can also end in one other way: upon the death of the legal guardian.
One distinction between custody and guardianship is that the latter can be bestowed on a legally determined incompetent (pulled from the criminal justice system) or otherwise developmentally challenged or disabled adult. In this situation, the adult has reached the age of majority but is unable to exercise the rights of adults because of physical or mental incapacity. Legal guardianship can be awarded to a third party for an adult and the court will then have continuing jurisdiction over the "incompetent’s" affairs. Guardianship of adults is not governed by the same set of laws applicable when a legal guardian is appointed for a minor child.
Again, legal custody is generally the preferred approach in today’s modern realities. Legal guardianship is cumbersome, expensive, and not recommended, except in unusual situations.
Primary differences and similarities between legal custody and guardianship
While there are similarities between legal custody and legal guardianship, these concepts are not interchangeable. To clarify the distinction between these terms, consider the following key differences:
Decision-Making Authority
Custody is frequently awarded to the biological parents of a child. Separately, legal custody can be granted to non-biological parents, which can include those who have long-term parenting relationships with a child they are trying to help. In this case, both parties can be granted legal custody of a child.
This means that legal custody is usually a more inclusive term than guardianship, which is reserved primarily for extended family and other third parties or non-relatives to whom the court awarded guardianship.
In practical terms, the main difference between custody and guardianship is decision-making authority. Legal custody grants the right of decision-making for the child’s education, medical care and other important areas that require a parent or caregiver to provide for the child’s needs. Guardianship has some limits on the powers of the guardian to make decisions on behalf of the child.
Legal Relationship
When legal custody is granted for a child, the result is a legal parent-child relationship. At this point, the parent has basic rights and responsibilities for the child’s care. The court clearly establishes the identity of the legal custodial parent, making the parent’s obligations to the child clear in the eyes of the law.
When a child is granted to the guardianship of a third party, the third party does not become the child’s legal parent. Rather, the law recognizes that the child’s well-being is best determined by this particular person.
Duration of Arrangement
Another distinction between legal custody and guardianship involves the duration of the arrangement with the child. Children tend to live with their legal custodial parents until age 18. Alternatively, guardianship arrangements can last for legal durations that are variable and temporary.
If guardianship ends and a person no longer has a child in their custody, legal recourse exists for allocating the child’s care to another responsible adult. This aspect of legal custody gives children placement consistency and gives adults the ability to transfer legal authority over children with relative ease.
When it is appropriate to get legal custody
When the biological parents of a child are separating or divorcing, having legal custody of that child may be the best option to ensure that the child’s interests are protected. Legal custody is appropriate in most cases, except where the parent is a danger to the child and custody would create a risk of harm to the child. Parents usually share legal custody of the child in divorce and separation cases, although it can be awarded solely to one parent in appropriate circumstances.
Where the biological parents are not separating or divorcing, legal custody may also be the most appropriate option. As discussed above, legal custody can be conferred by a court only on biological or adoptive parents. Thus, where a non-parent is seeking legal custody of a child, that person must first obtain the permission of the biological or adoptive parent, or the child’s guardian, to file for legal custody, or must stage a juvenile dependency proceeding to strip the parent’s rights before filing for legal custody.
In California, biological or adoptive parents have the paramount right to custody of their children. A court will presume that parental rights are in the best interests of a child and will not disturb them absent clear and convincing evidence that the right is unfit. (In re B.G. (1974) 11 Cal.3d 679.)
Thus, legal custody is normally reserved for cases in which there is a reason not to award custody to a parent, or to cases that do not involve a biological or adoptive parent’s rights. For example, if the biological parents are minors (under the age of 18), legal custody may be appropriate. Similarly, legal custody may be appropriate where the parents are prisoners or members of a gang or other group that puts a child at risk of harm.
In all cases involving a request for legal custody, the court will conduct a trial on the issue in order to determine the best interests of the child. The court will appoint a lawyer to represent the child, and will consider the testimony of witnesses and expert opinions.
Of course, the best way to arrange for legal custody is for the biological or adoptive parents to sign a written agreement creating legal custody, which will then be able to be filed with the court. This, like the minor’s consent described above, will eliminate the need to appear at court.
When you need to get legal guardianship
In cases where the parents are unable to care for their child in the manner necessary, such as illness, member of military service, or incapacity, legal guardianship may be appropriate. Legal guardianship grants the child a permanent home without the severance of parental rights, and is often used when the parents have had a history of drug abuse or violence which would prohibit them from having custody of the child. While legal guardianship is an effective solution to parental incapacity, the guardianship should be sought while the parents are still able to consent to the arrangement .
A common misconception about guardianship is that it is only for orphaned children. In fact, the law recognizes the need for legal guardians for children whose parents are alive, but unable to care for the child in the manner required. Different states use different terms to denote guardianship for minors versus guardianship of incapacitated adults, so it is important to consult an attorney to learn the terminology specific to your state.
Legal process and requirements
While legal custody and legal guardianship are distinct, they are often confused with one another, and in both cases, a court order must be obtained. Legal custody generally involves obtaining a court order of custody after a divorce, separation, or paternity action. Legal custody may be sole, where one parent or another custodian makes all decisions for the children, or shared between both parents. The legal custody order will define a parenting plan that includes a visitation schedule. If parents have a legal custody order, they must follow it. Not doing so, is a violation of it and parental agreement to not follow the Order is not a legal basis for doing so. If a parent wants to violate it, and the other parent does not agree, he or she must file a motion with the Court to modify the Order and get permission to deviate from its terms. Changing timesharing between parents requires a motion to be filed if the parties cannot reach an agreement. Creating a new parenting plan when there never was one requires that a petition to establish a parental responsibility be filed. A guardian ad litem is appointed by the Court to investigate the parenting issues, interview the parents, other relatives, teachers and therapists if necessary, and make a recommendation to the Court regarding parenting time. A hearing is then held on the recommendations. Legal guardianship usually involves children who are in the custody of the Department of Children and Family Services (DCFS). DCFS will investigate the situation and make a written recommendation to the Court on whether legal guardianship should be awarded, the proposed guardian who will take custody of the children, and the terms/conditions of the guardianship (as well as a recommendation on what is in the best interest of the children). DCFS will then testify regarding its investigation in Court and give oral testimony. The guardian, and sometimes the biological parents, will also testify about their position. The Court will then enter a Judgment for guardianship depending on the proof it hears. Legal guardianship may be temporary, although it is not uncommon to become permanent with the consent of the biological parents.
Effects for the child and family
When assessing the appropriateness or desirability of a custody or guardianship arrangement, it is important to consider the effect on the child and the family both in the short-term and the long-term. Factors such as the age and maturity of the child, the scope of authority of the caretaker and the stability of the child’s living situation all play a role. Emotional and Psychosocial Impact. When the caretaker holds legal authority, whether that is a parent or a guardian, the child may have an expectation of security and care. However, for children who experience divorcing or separated parents, growing up knowing that parents are not the full-time caretakers can be uncomfortable or even alarming. Children may feel special obligations, such as to keep a parent informed of things, which can lead to additional social stress. Psychologist Amy McKeen writes that "[f]or children, the psychological impact of legal custody is paramount: Children must learn to cope with the loss of normal family structure and how to deal with their new roles as custodial child, visiting child and former child." Emotional issues can even arise in typical nuclear families over legal custody arrangements. For example, it is not uncommon for a parent to be awarded sole or primary legal custody of a child, and the other parent to shoulder the lower costs and responsibilities of merely paying child support. In this situation, the child may become aware that one parent is receiving more money than the other, despite both legally having legal rights to visit and receive support from the child. The child could then feel like the "less favored" parent. Affect on Family Structure. The emotional impact is magnified in alternative family structures. When grandparent is the legal guardian of a grandchild, personal circumstances may directly affect both family members. For example, the grandparent may be aging or have health issues that make caring for a child difficult or burdensome. If a parent has legal guardianship over a child, the parent may be guilty of the even greater emotional impact on the child. If a parent is placing the child for adoption, the finality of the decision may be difficult for a child to process and understand. Areas of Legal Decision-Making. Because legal guardianship often involves the right to make decisions for another, legal decisions are an inherently important area to examine. In traditional legal custody or guardianship arrangements, areas of decision-making often include: Legal and Financial Responsibilities. Legally, the mobilization of assets and the allocation of debts and securities are often an inherent part of the establishment of a legal custodian. To this end, a trust may be established, which delegates control of both the assets and the liabilities. This is particularly important in the event that a guardian becomes sick or is unable to handle the affairs of the child.
Speaking to a legal professional
The Law’s Take on Legal Custody and Guardianships
When it comes to your legal custody situation or whether a guardianship is appropriate , you can have an attorney and even the judge argue both sides of many legal custody and guardianship cases. The law does not strictly define "best interests of the child" in a specific way and the factors the court may consider when making custody/guardianship decisions are written broadly and are somewhat subjective. This means that what seems to be right for you or even for a medical professional may not be how the court looks at it. Having this type of agenda means certain facts and evidence may come to play in the custody/guardianship case…but not in your favor. A legal professional can remedy this situation by being your advocate. Before proceeding with any legal matter which revolves around children, consulting with a family law attorney is always advisable.