Difference Between a Guardian and Custody in Michigan

In Michigan, as in other states, people sometimes use the terms "guardianship" and "custody" interchangeably. However, while some elements of each may overlap, they are not the same. Custody laws mainly focus on parental rights, and guardianships give rights to adults to make decisions on a child's behalf while raising minors who are not their own. A guardian can can also manage the affairs of an incapacitated adult.

There are different types of child custody in Michigan. Physical custody allows a parent to live with a child or children under court order. Legal custody allows a parent or guardian to make decisions on behalf of the child regarding their schooling, health, and other factors that will directly impact their life.

A parent can have joint or sole custody of a child. A parent with sole custody is the only parent responsible for the child's well-being. The responsibility is shared if both parents have joint custody. Children typically take turns living with parents who share physical custody of them. The court can give sole custody to the parent it deems a fit and an appropriate choice in raising the child.

An individual interested in a minor child's welfare may petition a probate court to be their legal guardian. Michigan has three types of child guardianships. In a full guardianship:

• The court suspends or terminates the parental rights of both parents or a surviving parent due to divorce, death, mental incompetency, disappearance or incarceration.

• The child's parents allow them to live with someone else and do not provide that person with legal authority for their care. The minor is not residing with their parent or parents at the time of the petition's filing.

• The child's biological parents were never married; the parent who had custody of the child is missing or died; the other parent does not have court-ordered legal custody; and the person who files to be the legal guardian is related to the minor by adoption; blood or marriage.

The minor's parents must consent to their placement in a limited guardianship. This plan must show why the parents requested the guardianship, its duration, provisions for child support and parenting time, and any other conditions the parents must abide by.

Parents who agree to the guardianship plan but fail to comply to it without cause may lose their parental rights. After the filing of a petition for limited or full guardianship, the court may appoint a temporary guardianship, which will last longer than six months.

The court not only appoints guardians for minors, it also appoints them for adults. The probate court gives a guardian the power to manage another individual's care if they are incapacitated. This authority can include medical treatment consent, determining their residence, managing their income and property, and arranging other services appropriate to their life.

The individual under guardianship must be incapacitated and have impairments such as mental illness or deficiency, physical disability or illness, chronic drug or alcohol use, or other factors that cause them to lack sufficient understanding or lack the capacity to communicate or make informed decisions.

The person petitioning to be an adult's legal guardian must be at least 18, competent and willing to serve. The court may reject an individual's request to serve as a guardian if it finds them unsuitable and will appoint a professional guardian only if no one is suitable.