Guardianship and custody are two legal terms that are often confused. A guardianship and a legal custody arrangement can both give authority to make decisions about a child’s welfare. When birth parents are not available to raise a child, the line between guardianship and custody can feel confusing. Let’s look at the definition of guardianship and how it differs from custody.
Guardianship vs. Custody as Legal Terms
Guardianship generally refers to the relationship between a caretaker individual and a child when the biological parents are not available. This person is known as the guardian. The guardian is responsible for caring for the child and making decisions about their welfare, including their education, medical care, and religious upbringing. The guardianship arrangement can be temporary or permanent.
If you are a grandparent or other relative of a child and you think guardianship is in the best interests of the child, you may petition for guardianship. Talk with your guardianship attorney about making a petition to the court.
On the other hand, custody generally describes your relationship with your child as their biological or legal parent. The custody arrangement gives the parent authority to decide about the child’s welfare, including decisions about their education, medical care, and religious upbringing. Usually, a court grants custody during divorce proceedings or child custody motions. The custody arrangement can be temporary or permanent.
If you are a parent who wants to name a guardian in case of an emergency, go ahead and work with an estate planning attorney to write your last will and testament.
Define Guardianship for Children
Guardianship is granted for a child generally for one of two reasons:
- When parents are unavailable due to health challenges or death
- Child Protective Services (CPS) declare parents unfit
When parents face unexpected health challenges or death, children have no one legally caring for them. If grandparents or other family members do not step in, children can go to foster care. This situation is a sad experience for children whose parents could have prevented this scenario with a bit of planning.
Even when family members step in, without direction from the parents, a court can grant someone you would never trust as your children’s guardian. For example, a sister who never cared for your children may ask for custody only to get her hands on your financial benefits. The court may have no way of knowing her desire for guardianship of your children is for financial gain and not in their best interests.
Working with an estate planning attorney to draw up your last will and testament can give guardianship of your children to someone you trust. You won’t need to worry about your children facing a poor guardian or worse, a foster home where they receive no care.
According to HG.com, “Courts seek placement with family members if possible, instead of placing children in foster care. When grandparents choose to participate in a case of that nature long-term, a judge may give grandparents custody or guardianship. Guardianship is generally granted in CPS cases, not in private child custody cases.
Guardianship is a very secure type of authority over a child and, unlike child custody, it is extremely hard to change based on any future circumstances.”
Differences Between Guardianship & Custody
In a private child custody case, grandparents or others may seek partial or full custody of a child due to the child’s best interests. However, it is difficult to get any custody without CPS involvement.
When parents divorce or if parents file a motion to modify custody arrangements, other relatives such as grandparents can participate in the proceedings. They may receive visitation or testify to affect custody arrangements.
As a non-parent seeking custody without CPS involvement, the court does not consider your rights as they do the parental rights. As a grandparent or other relative seeking custody of children, you must show in court that the parents are not providing what the children need. However, because the parents have the right to raise their children as they see fit, you face a tough battle to get custody in a court of law.
Types of Guardianship in North Carolina
If you want to become a guardian for a child, you will file a petition with the clerk of court in the county where the child lives. You will indicate which type of guardianship you desire:
- Guardian of the Person – Handling all major personal issues such as the child’s care and well-being, including where they reside, religious involvement, clubs or organizations, what school they go to, and any medical decisions. Does not handle financial decisions about the child’s estate
- Guardian of the Estate – Handling the child’s finances only, but not making personal decisions about the child’s life
- General Guardian – Handling duties pertaining to the child’s personal care and financial estate
Once you file the petition, the Clerk will set a hearing date. Everyone involved in the case will receive an invitation to participate in the hearing.
How to Become a Child’s Guardian in North Carolina
A judge will generally appoint a guardian ad litem, an attorney who represents children in guardianship cases, to speak for the child’s best interests. The guardian ad litem will also investigate all angles of the case, interview doctors, witnesses, CPS employees, and talk with the child. The court will ask for the guardian ad litem’s recommendation and rely heavily on their opinion when deciding guardianship.
If the parents are alive, they will also receive notification of the guardianship proceedings. They may object to a guardianship. They may also participate in the hearing. The court may allow parents to retain parental rights while also appointing a type of guardianship to you.
At the hearing, you will need to prove that guardianship is in the child’s best interests. You can prove this by providing evidence that the child would be better off with you as a guardian than with their biological parents’ authority or in foster care.
The evidence you provide can include:
- Testimony from people who know the family dynamics
- Documentation of abuse or neglect by the parents
- Financial records showing that the parents cannot support the children
- The results of any drug tests taken by the parents
The Court will then appoint a guardian if the:
- Parents do not object
- Parents are deceased
- Court decides that the children need a guardian in addition to the parents. In this case, the court will appoint a type of guardian for the child after considering all of the evidence provided.
The guardian will then have the type of legal custody that the court appoints in the guardianship proceedings. The guardian is then responsible for the care and welfare of the child up to the limits of the type of guardianship authority they possess.
Becoming a guardian is a big responsibility, but it can be enriching knowing that you’re providing a safe and stable home for a child in need.
We Can Help
At Cape Fear Law, we understand how guardianship works in North Carolina and can help you through the process. Our experienced guardianship attorneys know how to walk you through each step of your guardianship case. We work hard to ensure that your rights are protected every step of the way. Give us a call today to schedule a consultation. We’re here to help!
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