Temporary guardianships and custody are similar in that they both potentially allow one parent or a non-parent to make important decisions for a minor child. However, they differ significantly in time and finality. Moreover, temporary guardianship requires parental consent, but a court's order determines custody.
A temporary guardianship grants physical custody of a minor child to a guardian for a limited period of time. For example, the parent may require hospitalization or must leave the country for an extended period of time. The parent must agree to a temporary guardianship usually in writing. A court cannot grant a temporary guardianship if the parent objects.
Rights of a Temporary Guardian
A temporary guardianship does not terminate the parent's right to the child. However, during the temporary guardianship, the temporary guardian has the authority of a parent and can consent to action such as medical treatment or school enrollment. The court may require a temporary guardian to submit status reports that relay the child's well-being.
Custody is usually decided in a civil lawsuit brought by a parent, relative or person with a parent-child relationship claiming the right to custody of a minor child. Generally, you think of custody lawsuits as occurring during a divorce action. Some states require the parties disputing custody to mediate a custody agreement unless there is evidence that the child is being mistreated. The court may incorporate the mediated agreement into its custody decree. Regardless of the parties' wishes, the court must consider the best interests of the child before it affirms any custody agreement.
Rights of a Legal Custodian
A legal custodian has full parental rights over the minor child and can make important decisions for the child in the same way as a temporary custodian. While a temporary guardianship is only intended for a short time, the court considers the custody decree to be final. A custody decree will not be modified unless a party can show that a substantial change in circumstances requires modification. The substantial change in circumstances must affect the welfare of the child. For example, the relocating or remarriage of a parent is probably not a substantial change in circumstances in most states.
Importantly, a parent does not have to agree to a custody arrangement. The court has the power to overrule the natural parent's wishes if custody with that parent is not in the child's best interests.
Major Differences Highlighted
Temporary guardianships usually occur when a parent is unavailable for a short period of time. Custody disputes, on the other hand, are usually between two parents during a divorce action or when someone is claiming that a parent is unfit. While temporary guardianships last for a brief time, the court intends for a custody decree to be permanent, and a court must order any modification. Unlike temporary guardianship, a court can enter a custody decree without the consent of the parent.
- Judicial Branch of Georgia: Minor Guardianships
- "North Carolina Custody"; Barbri Bar Review; 2010
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