Guardianship and custody are similar but distinct concepts that describe
the legal relationships between an adult and a child. Although often mistaken
for one another, these relationships differ in a number of important ways
- The decision-making authority provided to the adult in the relationship
- Who is generally awarded custody over a child and who is generally given
the authority to be a child’s guardian
- The duration of the legal relationship
- Who may appoint a custodian or guardian
As well, in certain circumstances, these relationships may interact with
What decision-making authority do Custodians and Guardians have?
Child custody actually encompasses two types of relationships: physical
custody and legal custody. Physical custody is the right to exercise physical
control over a child for a defined period of time. This type of custody
is, for example, exercised by a parent who has visitation rights (but
who is not the primary custodian of the child). Legal custody, in contrast,
grants the custodian the exceptional authority to make decisions concerning
the child’s medical care, education, and legal rights.
Guardianship, on the other hand, generally refers to a legal relationship
in which one party (‘the guardian’) is empowered to act for
the benefit of another (‘the ward’). The relationship may
exist for the benefit of an adult (who, for example, has a mental handicap)
but, in family law, guardianship usually refers to an adult who has the
authority to act for the benefit of a child. Guardians, in contrast to
custodians, are somewhat limited in the actions they are permitted to
take on behalf of a child and may only control the ‘day-to-day’
decisions of the child.
Who may be a Custodian? Who may be a Guardian?
In Washington, custody of a child is generally granted to one or both of
the child’s parents based upon the following factors:
- Each parent's participation in the decision-making of the child's life;
- Each parent's proximity to the other and how that proximity will affect
decision-making for the child; and
- Whether the parents can and will work with each other to make decisions
for the child.
In general, guardians are appointed to care for a child if a child’s
parents become incapable of doing so due to illness, jail time, or death.
In such cases, third parties, such as family friends, grandparents or
foster parents, may seek to become the child’s guardian and stand
in the parents’ place for the purposes of day-to-day decision-making.
Should a party seeking guardianship face opposition from the child’s
parent or wish to have greater control over the child’s livelihood,
an action seeking non-parental custody may be more appropriate.
What is the duration of the Custodial relationship or Guardianship?
Custody determinations tend to be flexible and are subject to modification
if there has been a substantial change of circumstances in the current
custody arrangement and if the modification is in the best interests of
Guardianships, in contrast, although sometimes granted on a temporary or
emergency basis, are often more durable than custody determinations and
persist for the life of the guardian or until the child reaches the age
Who appoints a Custodian or Guardian?
Only a court is permitted to grant custody over a child. If court action
is required, a parent may make recommendations. The final outcome and
appointment, however, will be in the hands of the judge.
In contrast, both courts and parents may appoint a guardian for a child.
An incarcerated parent, for example, has a right to appoint whomever he
or she sees fit to stand in his or her place as a guardian. The parent
may not, however, transfer custodial rights and obligations without court
How is Custody affected by a Guardian?
Although the legal standard to establish a custodial relationship or guardianship
is whether such a relationship is in the ‘best interest of the child,’
if a parent has a custodial relationship with a child, courts will generally
not appoint a legal guardian. If one custodial parent, however, becomes
incapacitated, then the appointment of a guardian may become appropriate.
If the guardian does not live in close proximity to the remaining custodial
parent, the visitation rights of that parent may be altered as a result.
If both parents become incapacitated or otherwise unable to fulfill their
roles as custodians, then a guardian may be appointed out of necessity.
The relationship between custody and guardianship can become quite complex.
For more information in this area contact a McKinley Irvin family lawyer
or read more about the law of