What is Legal Custody
Legal Custody, in a family law case, refers to the rights and responsibilities regarding the care and upbringing of a child. A finding of legal custody does not solve any practical issues in most family law matters relating to the division of time with the child or the payment of child support, but it is important for the following reasons:
- Legal custody is the starting point for questions about who should have the primary right for making decisions on behalf of a child, and is therefore subject to right of first refusal issues.
- Guardianship issues (referenced below) can only be resolved after a determination of legal custody.
- The primary residential parent typically has the sole right to make decisions on behalf of the minor child unless the parties agree otherwise or there is a court determination to the contrary.
- Medical emergencies can arise and it is important that parents know who needs to consent to medical procedures on behalf of a minor child.
- When a child reaches a certain age and maturity level this determination may be shifted to the child.
- While child support is based on the percentage of time a child spends with each parent , legal custody can be relevant for child support purposes to the extent one parent incurs additional expenses because they have a greater share of the decision making.
Legal Custody versus Guardianship
Where parents are divorced or one parent is deceased (i.e. a spouse has died), the requirements for legal custody are governed by the Parentage Act, whereas if the parties are still married, legal custody is typically governed by domestic relations law.
Legal custodianship is not the same as guardianship, which may involve the appointment of a guardian for someone who is incapacitated and unable to make or communicate important decisions regarding their health care. The official appointments of a guardian are made by the Florida courts.
The rights of a guardian are typically made on behalf of the individual incapable of providing consent. The guardianship process is typically overseen by the courts and allows individuals to petition the court, destine the fiduciary relationship and obtain oversight. This must pass judicial scrutiny and is intended to protect individuals who are unable act in their own best interests.
Guardianship may be revoked by the courts, who decide when, if ever, a guardianship is no longer necessary.
Definition of Guardianship
According to the Legal Information Institute, guardianship is defined as "a legal authority given to a person or persons to take care of and deal with the property and rights of another person." In essence, the assigned guardian is given the legal means to act in place of the incapacitated individual. Technically speaking, guardianship is appointed by the court. As such, it could be said that the appointment of guardianship occurs in a more reactive sense than legal custody.
A guardian’s role is to make legal decisions, such as the power of attorney and financial management, for an incapacitated individual. General guardianship appoints control over all aspects of the individual’s life. Limited guardianship only instills decision-making authority on certain actions, duties, or aspects of their life. A standby guardianship, which is designated by legal authority before such a need arises, is set up with the understanding that the appointed standby guardian would execute the obligations usually required of a parent if the necessity arose. For example, the standby guardian may temporarily assume the role of surrogate parent in the event of parental death or incapacity.
Becoming a guardian can take time, meaning that having a contingency plan set up ahead of the need could have positive implications. If your children are permanently in someone’s care or they lose eligibility parenting time, guardianship will likely be the next option to choose from.
Differences Between Legal Custody and Guardianship
Both legal custody and guardianship involve the care of a minor child, but the two are actually quite different from one another. Legal custody can be granted to parents in a divorce or family court case. The judge is tasked with determining whether it is in the child’s best interests to live primarily with one parent or spend equal time with both parents and split physical custody. The judge also has the option of ordering shared legal custody so that both parents have a say in major decisions for the life, health, education and welfare of their children. Guardianship is different in that it is not sought to negatively affect the parents. Guardianship only comes into play when parents have either died or become unfit to care for their child. Guardianship is therefore a permanent decision until the child reaches the age of 18 and becomes an adult. In addition to the above major differences, other notable ones include: On the surface, either legal custody or guardianship may appear to provide the right solution for a child depending on the situation. While there is no single solution that fits every case, it’s essential to educate yourself first on your options.
When Does Legal Custody Apply
Whether you determine to become a guardian or be awarded custody of a child or have sole legal custody over a child, legal custody is awarded through the Court system in which you live. Most of the time, this is accomplished in a divorce action or a support action brought in the Court. Sometimes, legal custody is awarded during a custody action where parents never lived together or were never married to each other to begin with. Legal custody is not something that is determined between people who are not related, where there is no marriage, no blood relationship, no steps, and no guardianship applied for or appointed through the Court to begin with.
Some Courts will award legal custody to one parent or the other, but award physical custody to the other parent, depending on the facts and circumstances of each case. Messy divorces can adversely affect the custody and physical welfare of the children involved. If a spouse is unable to get along with the other spouse because of emotions and other psychoses, the Court may be left with no alternative—even in a divorce proceeding—to award legal custody to one parent so that the other parent cannot make unilateral decisions regarding her or his children’s lives regarding education, medical decisions, or criminal decisions to the exclusion of the other parent.
Custody cases are difficult. Legal custody, joint legal custody, primary physical custody, partial physical custody, sole custody/care and custody, and shared custody arrangements are amongst the most difficult to litigate and ascertain for parents and children alike.
When to Pursue Guardianship
When legal custody or the ability to make decisions for the minor child is not practical or possible for the parents, Georgia law allows for either temporary or permanent guardianship. For temporary guardianship, a parent may petition to transfer parental responsibilities to another adult by signing a voluntary agreement. Temporary guardianship for a period of 12 months is common when a parent is deployed/absent from the State/Absentee Parent. This can also apply to a parent struggling with a substance abuse problem and their addiction interrupts the making decision and/or caring for minor child.
Other reasons for being granted guardianship include Either Permanent or Temporary Guardianship when a parent dies . When this happens a petition may be filed for letters of guardianship to be issued to the minor child, an adult member of the child’s family, or an adult friend of the family over the parental rights of the deceased parent.
Legal Custody / Guardianship may also be granted in either Permanent or Temporary Guardianship when the rep. guardian is either a relative or non-relative and the parent has abandoned the child or the best interest of the child requires that legal custody is granted to someone who can better provide adequately for the minor child. It is important to note that when a parent abandons their child sings away their parental rights, it does not mean that they are no longer responsible for the child’s maintenance. The parent will still be responsible for child support under Georgia Law.
Legal Process and Procedures
Establishing legal custody or guardianship of a minor is a legal process that usually requires the assistance of a knowledgeable attorney to ensure everything is handled correctly. For both legal custody and guardianship, documentation will need to be filed with the court to formally request custody or guardianship and judicial approval will be necessary.
Obtaining legal custody generally begins by filing for legal custody in either the state where the child resides or the state where the non-custodial parent lives if the child is residing with your spouse. The court will then schedule a hearing (which the non-custodial parent will need to be notified about) and hear the reason why the custodial parent’s rights should be terminated and that of the non-custodial parent should be given power of attorney. Upon hearing both sides, the court will issue a ruling based on all of the evidence provided. The court can also decide to award one party with legal custody while also allowing visitation rights to the other party, or allow 50/50 split custody.
Obtaining guardianship generally also involves initiating the same court proceedings. With guardianship, however, the parties do not necessarily have to file for legal custody simultaneously or even at all in some cases. If the non-custodial parent receives legal custody, it will not be necessary for the parties to engage in separate legal actions to request a grant of guardianship; although it’s still a good idea for those who have the proper intentions. When pursuing guardianship, the court cannot quote un-quote revoke parental rights of the custodial parent. Rather, the court allows the guardian to make adult decisions on behalf of the child that would otherwise be reserved for the parent or legal custodian.
Effect on the Child
The main impact that a child will likely feel are emotional. Determining physical custody and legal custody are often contentious parts of divorce proceedings. The child could be feeling the stresses caused by the divorce as well as by the dispute. Having someone other than their parents decide who should have legal custody can make them feel abandoned and rejected. Giving them more custody to one or the other parents can add to feelings of guilt or exclusion. This is likely the case even if the child will experience a better level of living with the parent who is allocated more custody.
Legal custody aims to provide a stable home life for the child with as less conflict as possible. Having both parents have legal custody of the child can help them feel a sense of security that they are not being abandoned. It can be a good way to deal with an estranged relationship between parents by having each parent act with the best interests of the child in mind.
Guardianship, with a different aim, can be chaotic and tumultuous. As previously noted, guardianship can, in some cases, be temporary. This can result in the child moving from one household to another, first staying with the parent, then not staying with the parent, which can cause the child to develop insecurities. Often, it is faster and easier for the court to appoint a guardian but the level of commitment is not the same. The effect on the child can be immediate and long lasting.
Getting Legal Help
When navigating the complex web of custody and guardianship laws, seeking legal assistance is not just a wise choice but a necessary step in ensuring that your rights, as well as the welfare of the involved child or ward, are protected. Family law can be a convoluted realm of intricate regulations and nuanced proceedings. Therefore, having a knowledgeable attorney by your side can provide not only peace of mind but also a strategic advantage.
If you have a custody or guardianship matter on your hands, the first step to gaining sound legal counsel is to do your research. There are various resources at your disposal. Start with recommendations from trusted friends or family who may have had similar experiences. Online reviews and testimonials from previous clients are also helpful. Be sure to consult the attorney’s professional background, including their specialized experience, as not all attorneys are equally versed in family law.
Once you’ve gathered a list of potential candidates, it is always wise to schedule an initial consultation . Reputable lawyers recognize that this is an essential step for both parties. In this meeting, you will be able to evaluate your comfort level with the attorney, discuss billing procedures, and ascertain the lawyer’s knowledge on specific matters related to your case.
Your initial meeting is also a prime opportunity to gauge the lawyer’s professionalism, empathy, and responsiveness. A family law attorney should be supportive and understanding, yet realistic and honest about the challenges ahead. The ideal professional will take the time to clearly answer your questions, explain the legal processes involved, and outline potential strategies for your case. While this initial consultation itself may be charged, it will give you valuable insight into whether the attorney is the right fit for you.
Remember that the relationship with your attorney is always a two-way street. Although they will be the experts in their field, as the client, you still play a critical role. Open and transparent communication is vital to navigate any custody or guardianship issues.
