When two people decide to break their marriage, children are the ones who get affected the most. A child suffers financially and mentally a lot if he or she is not handed over to live with the right guardian or parent. For the child’s safety and betterment, the court gives guardianship or custody to the most deserving person of the family or close friends. It is not compulsory to give custody or guardianship to the parents. If both parents are not capable to take proper care of the minor or any property, then the court can give the right to anyone whom they think is perfect for the child’s safety and care. During a Divorce, child custody or guardianship and property custody and guardianship are the most important activities done by both sides of the family. The ultimate decision of the court decides what will be the final decision. Previously there was a single act of Custody that was legal and performed during divorce, but nowadays custody, as well as guardianship, is appointed to the right and eligible person to whom the court decides to hand over the minor or the property. In this article, we are going to read all the information regarding Guardianship and Custody and also about the different acts and laws of different religions such as Hindu law, Muslim law, Christian law, and Parsi law.
Guardianship vs Custody
Both Guardianship and Custody are similar in concept, but there’s a clear legal difference between the two terms. Both terms are used to explain a legal relationship between a child and an adult and are determined by the court. But the two are not interchangeable ideas. The major difference between Guardianship and Custody is that Legal Guardianship means when a court legally grants someone other than the biological parents to care for a minor. Whereas Custody most often describes a parent who is granted to legally take the entire responsibility of his or her child.
Difference between Guardianship and Custody in Tabular Form
|Difference in parameters||Guardianship||Custody|
|Definition||1. Legal Custody.2. Physical Custody.3. Joint Custody.4. Sole Custody.||Custody is the legal duty or right to take care of something or someone. It is the immediate control and care of a human being or someone’s property which is granted by the court.|
|Powers appointed||The guardian can take action and can legal decisions about the minor or the property on behalf of the ward.||If the custody is equally divided into two parts, then both parties have to take the decisions mutually.|
|Types||1. Natural Guardians.2. Testamentary Guardians.3. Guardians appointed or declared by the court.||You must be an adult. Have a level head.You should not have any criminal record.|
|Duration||If the biological parents are dead, then the guardianship period normally lasts until the child becomes an adult of 18 years.||Child custody depends on the order given by the court. It is divided into 60% and 40% between the mother and father till the child becomes an adult.|
|Requirements for becoming||You must be an adult. Must have the income to take care of a minor if it’s child custody.||You must be an adult. Must have the income to care for a minor if it’s child custody.|
What is Guardianship?
A guardian is defined as a person who is appointed to look after a person or a property with the court’s permission. The major role of a guardian is to take care, and responsibility and protect the person or the property for which they are appointed as the guardian. The guardian can take responsibility and can take all the legal decisions on behalf of the parents or owners of the property. The term guardianship arises in scenarios where the person is not an adult, and just a minor, which is below the age of 18, or the person is disabled and can’t take care of themselves due to any physical or mental disability, in that case, a guardian is needed to take the decisions on behalf of the owner or ward protecting the interest and their property.
Types of Guardianship.
Choosing the charge of Guardianship for a loved one is always a hard decision for the parents, but if they want to give the guardianship to someone then they have to request the court to provide the allowance and the power to someone who is trustworthy to take care of a minor and to look after where the minor will live and also to take the charge of his or her medical and financial care.
Now there are several different types of Guardianship and we will learn about them one by one.
1. Temporary Guardianship
This type of custody is granted when parents or any legal guardian of a minor agree to allow someone to take care of their child temporarily. Or if the court allows someone as a guardian temporarily apart from the legal parents for any emergency medical concern of the minor’s wellbeing.
2. Emergency Guardianship
Emergency guardianship means that a temporary guardian makes decisions on behalf of the ward. When the court receives a request for emergency guardianship, it may grant it.
3. Guardianship of a minor
Emergency Guardianship can be taken by one or more adults for a minor’s upbringing. They have the right to take decisions and are authorized to take medical care as well.
4. Guardianship of an adult
Adult guardianship is only taken when a person who is an adult is not capable to take care of himself or herself due to any medical condition.
5. Determining Incapacity
Courts often use the term INCAPACITY PERSON to describe the person who will be the guardian of the legal guardian. The reason adults need someone else to make decisions for them is that they are anticipated in some ways.
6. Guardianship of a Person
It is a type of limited guardianship provided to a guardian. The responsibilities of Guardianship of a person are to provide the basic needs which include food and housing, protection against abuse and harm, and proper medical care and treatment.
7. Guardianship of the Estate
Guardianship of the estate is someone whose role is to name the guardian who will be responsible for the financial matters of the ward, including their property, expenditure, assets, and income. Guardianship of the estate neither has to take responsibility for the child nor has any control over the day-to-day decision-making for the ward’s medical or healthcare.
8. Guardian Ad Litem
A Guardian Litem is appointed by the court during the time of custody or guardianship process. The role of a Guardian Ad Litem is to represent the interest of the child or disabled person.
What is Custody?
A decision made by the court as to which parent will is allowed to take care, custody, and control of a child. In some cases, custody may be assigned to one parent or both parents jointly. The term Child Custody is directly connected to a minor and his or her parent. Custody includes the parent’s right to raise, care for, and make decisions regarding involving the child’s residence, healthcare, education, and religious upbringing. However, when couples separate, all of these issues may become contentious. When a child’s custody and upbringing are in dispute, the child custody laws and the court becomes involved.
Types of Custody
There are different types of custody given to parents according to the situation requirement and betterment of the child. There are many terms like Legal Custody, Physical Custody, Joint Physical Custody, Sole Custody, or Visitation Custody, and all the terms are slightly different from each other. Let’s see what exactly the types of custody are and what they mean.
Legal custody is totally different from any other custody as it is not related to where the child lives or with whom. The parents are only required to provide the education cost, daily living expenses, and requirements of the child. In this type of case, both parents go for joint custody in which they can take equal responsibilities together by planning the future of their child together even after getting separated. But if one of the parents is found noncooperative then the other parent can file a case to hand over the entire custody to him or her.
In physical custody, one of the parents got the legal right to take care of the child and the minor is allowed to live with that custody holder, whereas the other parent is allowed to visit the child periodically but if they are found to be undeserving for visiting the child, then the court may take actions and restrict the other parent to meet his or her baby as well.
Joint Physical Custody
Joint physical custody is the type of custody where both parents can visit the child and have equal rights but none of the parents is the legal custody holder who can restrict the other parent from visiting or taking care. But if one of the parents is found to misbehave with the minor or does not return the child on time to the other parent, misleading the minor by making them against the mother or father is considered uncooperativeness and disobedient to the court’s orders. In that case, the court orders primary physical and sole legal custody to the parent who has filed the case against misleading the child, and the parent who is found uncooperative and disobedient is allowed to visit the child during weekends with strict orders to return the child on time.
Sole Custody/Supervised Visitation
Sole custody is the kind of custody where one parent has given the prison right of the child and another one is only allowed to just visit the child once a week or month in the presence of the legal custody holder. This custody is only given if one of the parents is unstable, alcoholic, or dangerous for the child’s safety. The court inspects all the allegations made by the parent against another parent and if it’s found to be true, then the court might pass the order of handing the custody to the deserving parent with whom they think the child will be safe. In this case, one parent has been given Sole custody and another one is a Supervised visitor.
Differences Between Guardianship and Custody in Points
The main differences between Guardianship and Custody are
1. Guardianship is the non-parental care of a child and it can be given to anyone whom the court decides that person is definitely not the biological parent of the minor/
Whereas Custody is the care of a child as a parent. Custody is generally given to either of the parents.
2. Guardianship is only given in the cases where the parents are unable to meet the requirements of a child being dead or serving jail time or mentally, physically, or financially disabled.
However, Custody is given to either of the biological parents if the couple gets divorced. Legal custody is also provided in some cases where a father or mother who is not given the entire legal custody of the minor is allowed to visit his or her child but they can’t take the minor with them without the legal custody holder’s concern and allowance.
3. The role of a Guardian is to stand in the place of the biological parents of a minor when it comes to taking care of the baby which includes decision makings, medical care, shelter, flooding, and other important daily needs.
On the other hand, Custody comes into question when two biological parents are deciding to take a divorce and wants their child to stay with them separately and legally.
4. In Guardianship, a guardian is appointed in the place of biological parents to provide all the facilities to a minor and they can take the minor anywhere with themselves as the person is legally allowed to do so.
But in Custody, one parent may have physical custody, and another one has the entire legal child’s custody in which the physical custody holder is just allowed to meet the minor in present and allowance of the legal child holder.
Concluding the article, if a married couple is no longer wants to stay together and have minor kids but not willing to take custody of them, in that case, they can hand over the guardianship of their kid to someone whom they trust. once the court approves it, the guardian becomes the official caretaker of the minor. If the parents want to separate from each other but want to take the child with them, in that case, they have to file a petition for owning custody. Both guardianship and custody are legal and depend on the betterment of the child.