What happens to your kids if you have to travel for a long time without them? If you appoint someone else guardian, does that mean you give up any of your parental rights? These can be common concerns for parents considering guardianships and other child custody arrangements. While similar, there are important differences between child custody and guardianships.
Though the laws governing child custody differ from state to state, each state allows for both child custody and guardianship over minors. Parents, adopted or natural, have a legal right to have custody over a child. Barring extraordinary circumstances, those rights cannot be taken from a parent. Guardians are appointed by a court or by a parent. Guardians have the right to make decisions about the child insofar as the terms of the guardianship allow, but those rights can be terminated by a court or the parent and do not supersede parental custody.
Custody allows a person broad and far-reaching decision making abilities with regard to the child. Guardianships can be limited in their scope, but can also include the right to make decisions about child rearing, such as when a probate court appoints a guardian in the event that a child's parents die. In other words, anyone with custody over a child is a guardian, but not all guardians have custody.
Whenever a court considers questions of custody or guardianship, it makes its decision based on the so-called "best interests" test. This test requires a court to evaluate the case in light of what would be best for the child, and not necessarily the parents, guardians or other parties involved. For example, Arizona Revised Statutes 25-403 requires a court to consider factors like the wishes of the child, the wishes of the parents, the nature of the parent-child relationship and the presence of any domestic violence, abuse or neglect. While the court must consider these factors, none of them dictate the court's decision and the court can use any relevant evidence to determine what is in the child's best interests.
While both parents and courts can award guardianship, only the court is allowed to grant custody. A parent can, for example, grant a family member guardianship rights over a child while the parent is traveling for extended periods. The parent has the right to choose the person who serves as guardian in this situation. However, if a court is called to appoint a guardian or award custody, the parents can make recommendations to the court, but the final decision is up to the judge.
Custody comes in two forms: legal and physical. Physical custody is the right to have a child live with you, whereas legal custody is the right to make child-rearing decisions, or both. Guardianships come in a variety of forms. For example, a guardian can be appointed on a temporary basis to ensure a child's interests are looked after in a court proceeding. Further, guardians can be appointed over adults who are judged incompetent, though courts do not generally award custody over adults.