Guardianship Vs. Temporary Custody

By Jessica McElrath

Guardianship and custody are the rights of a court-appointed person to make decisions for someone else, either a minor or an incompetent adult. The court must approve the appointment of the guardian and the person who will receive temporary custody of the minor children. Guardianship and temporary custody will last for as long as the court allows.

Court-Appointed Guardianship

Guardianship is a court-approved right of a person to make decisions about another person (normally referred to as a ward) who is incompetent or a child under the age of 18. An incompetent person is someone who is unable to make decisions for himself; therefore, depending on the type of guardianship, the guardian will make personal and/or financial decisions for the ward. A guardian of a child is normally appointed in situations where both parents are unavailable or incapable of caring for the child or they are deceased. The guardian will have the same rights as a parent and, therefore, will make decisions about where the child will live and attend school, as well as decisions about medical care for the child. Most states require a guardian to be at least 18 years of age.

Guardianship Petition

To obtain guardianship over a ward, a petition must be filed with the appropriate court, such as the probate court or a family court. Most petitions require the petitioner, who can be the proposed guardian or any other person, to provide the name and address of the petitioner and the proposed ward, the name and address of the institution or person caring for the proposed ward (if any), the name and address of the spouse or parents of a minor ward, the name and address of the proposed guardian and the reason for guardianship.

Temporary Guardianship of Children

A parent may grant temporary guardianship over his children to anyone he chooses. The parent must put this appointment in writing. The written document should include the names and dates of birth of the children, the name of the appointed guardian, the length of time guardianship will last and the limitations, if any, of the guardian's rights over the children. Some states may require the parent to sign this document in the presence of a notary public.

Temporary Custody

Temporary custody refers to custody of a minor child. A temporary custody order is granted by a court in situations where the child's welfare and/or safety is in jeopardy and a parent refuses to protect the child or when a married couple has filed for a legal separation or divorce. The court can make this initial determination without conducting a hearing. The court will determine permanent custody after holding a hearing later, either during the finalization of the separation or divorce or, if temporary custody was granted because of a dangerous situation, a hearing may be held within days of the temporary custody order.

About the Author

Jessica McElrath has been a freelance writer since 2000. McElrath is the author of "The Everything John F. Kennedy Book" and "The Everything Martin Luther King Jr. Book." McElrath has a Bachelor of Arts in history from the University of California at Berkeley and a Juris Doctor from Santa Clara University School of Law.

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