Custody is a common topic for parents getting a divorce in California. Custody is oftentimes conflated with guardianship. There are some key differences between custody and guardianship agreements, especially when it comes to divorce.
How is custody different from guardianship?
Custody arrangements dictate who has legal responsibility over a child. The parent who has primary custody will be responsible for housing and making parenting decisions for the child.
There’s also legal custody, which refers to the responsibility of making larger decisions on the child’s behalf. It’s not uncommon for the non-custodial parent to have visiting rights of the child after divorce, but no legal custody over the child or say in those decisions.
A person who has guardianship can make care and legal decisions for the child and are in all senses of the word responsible for that child. The key difference is that custody arrangements can be modified at any time by the court, but a guardianship cannot.
Modifying and appointing custody vs. guardianship
Only a court can grant custody based on what’s best for the child. The parents don’t get final say. Guardianship can usually be appointed in court, or assigned by a parent.
For example, in a parent’s estate plan they might name a guardian for their minor children should the unexpected happen. A parent who is incarcerated might also name a guardian to make legal decisions for their child on their behalf.
You can have both custody and guardianship over a child. Legal guardianship is a little different though. In the example above, the person that the incarcerated parent named guardian wouldn’t have custodial rights over the child. That would be a different process.
Parents can request that custody arrangements be modified as time progresses. Once guardianship is granted, it usually lasts until the child is 18. Regardless of whether it’s custody or guardianship, the court will grant both based on the best interest of the child.