Family law can be very complicated, especially when it relates to the care and wellbeing of minor children. The legal definitions that courts use to describe an adult’s relationship with a child, and the responsibilities these relationships carry with them, can be overwhelming for those already dealing with what is understandably a very stressful and emotional process.
The terms guardianship and custody are often used interchangeably. However, these two legal concepts refer to very different relationships. There are several key differences between custody and guardianship, and – although exceptions exist – one is not necessarily a substitute for the other. Thus, it is difficult to say which is “better” in any given situation.
What Is Custody?
Most commonly, custody is granted to a child’s parents. There are two types of custody, physical and legal custody. Physical custody refers to a parent’s ability to exercise physical control over a child, such as where they live. On the other hand, legal custody refers to a parent’s ability to make important life decisions for their child. For example, the parent with legal custody over a child will make all educational decisions on behalf of the child. There are some situations in which non-parents may petition the court for custody of a child. However, this tends to be the exception.
Only a court can determine who gets custody of a child. Courts must make all custody decisions based on what is in the best interests of the child. A few of the factors that a court considers when deciding which parent to award custody of a minor child include:
- A parent’s ability to meet the child’s financial, emotional, and physical needs;
- A parent’s willingness to foster a positive relationship between the child and the other parent;
- A parent’s physical and mental health;
- The child’s age, abilities, and needs;
- The child’s preference (if they are old enough to express one);
- A parent’s ability to provide a stable, safe environment for the child;
- This child’s adjustment to a parent’s home and community;
- A parent’s “moral fitness”; and
- Whether there is any evidence of domestic violence.
Once a court awards a parent custody of a child, that decision is final unless there is a change of circumstances justifying a modification. If both parents agree to a modification, the court will typically abide by the agreement, provided it is in the child’s best interest. However, one parent can also petition the court for a modification. Scenarios that may result in a modification include evidence of domestic violence against the child or within the household, or a substantial change in the parents’ or child’s circumstances.
Parents may have difficulty establishing a substantial change in circumstances, as this requires more than showing that a parent experienced a job loss or a change in income. Examples that may qualify as a substantial change in circumstances include the development of an addiction, patterns of domestic abuse, or a severe injury.
Not surprisingly, child custody determinations are one of the most contested aspects of a Jacksonville divorce. Notably, Florida courts expect parents to protect children from the stresses and anxieties that often come with divorce. Thus, parents may lose custody or parenting time if they make up allegations of domestic violence, child abuse, addiction, child neglect, or abandonment.
Guardianship refers to a legal relationship in which one party, a guardian, is given the power to act on another’s behalf. Guardianship serves a number of purposes in both family law and Florida estate planning. For example, a guardian can be appointed for any of the following purposes:
- To act on behalf of a minor child;
- To act on behalf of an incapacitated adult; or
- To act on behalf of a person with developmental disabilities
In the context of Florida family law, guardianship typically refers to an adult who has the authority to act for the benefit of a child. Unlike a custodian, a guardian’s powers are limited to making certain decisions on the child’s behalf. Florida law allows anyone – regardless of whether they are related to a child by blood – to be appointed as a child’s guardian. However, those with felony convictions or who are unable to carry out the duties of a guardian are ineligible.
For the most part, a court will appoint a guardian to care for a child whose parents cannot care for them. Reasons for this may include illness, incarceration, or death. In these situations, often, close family members will seek to be appointed as a guardian. In many ways, the appointment of a guardian is similar to adoption. However, when the court appoints a guardian, the child’s biological parents are still legally considered the child’s parents. Thus, generally, if a parent has custody of a child, the court will not appoint a legal guardian.
Guardianships can be temporary or permanent, depending on the reasons why a guardian was appointed. However, most guardianships over minor children are only valid until the child turns 18 years old, at which point they can make their own life decisions. Of course, guardianships for children with special needs – minor or adult – raise different issues and tend to be permanent.
Contact a Dedicated Law Firm Representing Legal Matters
If you are in the process of going through a Florida divorce, or have concerns about who will be in charge of making the day-to-day decisions on behalf of a minor child, reach out to the knowledgeable attorneys at Beller & Bustamante, P.L. We understand the emotional toll that uncertainty regarding a child’s future can take on parents and family members. For the past 30 years, we have successfully represented clients in a broad range of Jacksonville family law matters, including child custody determinations and guardianship petitions. We can help you determine what makes sense in your situation, and effectively work towards that goal. To learn more, and to schedule a free consultation with one of our compassionate custody lawyers, call us or contact us through our online form.