Dealing with child-related legal issues can be extremely complicated. But, it is also extremely important; and, when issues arise, parents and other concerned adults must be prepared to do what is necessary to protect the best interests of the children involved. In our experience, one area that tends to be particularly confusing for people is the intersection between guardianship and custody.
Understanding the Differences Between Guardianship and Custody
While guardianship and custody can seem very similar in concept, legally speaking, they are very different. They involve different rights and responsibilities, and they have different implications for the child, the child’s parents, and the guardian (if involved).
What is Guardianship?
A guardianship establishes a legal relationship between the guardian and the child (who is referred to as a “ward”). In the words of the Florida Courts, the role of the guardian is that of, “a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor.” The ward does not step into the position of a parent, and the appointment of a guardian does not result in the termination of the parents’ rights. However, once appointed, the guardian has the authority to make decisions for and on behalf of the child consistent with the court’s guardianship order.
What is Custody?
In contrast to guardianship, custody generally involves a parent-child relationship (we say “generally” because grandparents and certain others can be awarded custody in limited circumstances, and they do not become the child’s parent by virtue of being granted custody). Custody can be either “physical” or “legal,” and custody can be awarded to one or both parents depending on what is in the child’s best interests.
If I Have Custody, Can a Guardian Be Appointed for My Child?
If you have custody and your child has been appointed a guardian against your wishes, your child’s guardian will have the authority to act consistently with the terms of the guardianship that has been established. Just as there are two types of custody, there are also two types of guardianship: (i) guardianship of the person, and (ii) guardianship of the property.
A guardian of the person is appointed to make decisions about the ward’s personal and legal interests, including matters such as education and medical care. A guardian of the property has the authority to manage (and obligation to protect) the ward’s assets. For both types, the guardian’s specific role and responsibilities are determined by the terms of the guardianship order—there is not a “standard” form of guardianship that applies across all circumstances.
Typically, a guardian is appointed against the parents’ desires only when the court determines that it is necessary for someone other than the parents to make decisions on the child’s behalf. As such, in his or her role as a protector of the child’s interests, the guardian has the ability to overrule the child’s parents. However, this only applies to the extent of the authority that the guardian has been granted. If a guardian has not been granted authority to make decisions regarding a particular issue (i.e. if the court has only appointed a guardian of the property), then decision-making authority remains with the child’s parents or another custodian (s).
If I Am a Child’s Guardian, What Happens If One Parent Seeks Sole or Primary Custody?
Since the rights of a guardian are established by court order and the guardian’s role is to protect the child, changes in the child’s custody arrangement do not generally have a direct impact on the child’s guardian. As discussed above, the role of a guardian is different from that of a custodial parent, and it is entirely possible that a child’s custody arrangement could change while a guardianship order concerning the child remains in place.
However, as a guardian – particularly a guardian of the person – it will be important to make sure you have a clear understanding of the rights you do and do not have. If the child’s custodial parent alleges that you are acting beyond the scope of your authority, this could lead to a court dispute that could potentially result in the modification or termination of your guardianship order.
What Happens if There is a Dispute Between a Child’s Custodial Parent and the Child’s Guardian?
If a dispute arises between a child’s custodial parent and the child’s guardian, resolving the dispute will require a clear understanding of the parent’s and guardian’s respective rights and obligations. If both of them have legal representation, it may be possible to work out a mutual understanding without court involvement. However, these disputes tend to be very emotionally charged, and with the complexity of the issues involved, it can often be difficult for parents and guardians to reach a resolution on their own.
It is also important to remember that guardianship and custody are both established by court order in Florida. This means that they can only be modified and terminated by court order as well. Any deviations from a custodial parent’s or guardian’s court order – even if undertaken based on an agreement and with the goal of doing what is right for the child – can have significant negative ramifications. As a result, if a dispute arises (or if a child’s guardian and custodial parent agree that some type of change is appropriate), it will be necessary to go to court before either individual does anything that is inconsistent with his or her court order.
These are complicated issues, and they can have significant consequences for everyone involved. If you have questions about your legal rights as a guardian, parent, or another custodian in Florida, you should speak with an attorney, and we encourage you to contact us promptly for a confidential consultation.
Speak with a Family Attorney in Confidence
If you would like to speak with an attorney about a guardianship or child custody matter, please contact us to arrange a confidential consultation at Beller & Bustamante, P.L. To speak with an attorney as soon as possible, please call us directly or send us your contact information online today.