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Guardianship vs. Custody: What’s the Difference?

On a first blush, guardianship and custody might seem similar. Many people use the terms interchangeably, and both guardians and those with custody have important powers when it comes to children. But a guardian is very different from someone with custody, and these differences sometimes matter legally.

At Surasky Law Firm, our Aiken, SC family law attorney can describe this issue in greater detail. Many of our clients are seeking custody during divorce, custory and guardianship are two different issues. We can help you review all your options in a consultation.

Comparing Custody and Guardianship

Parents typically have custody of their children. This custody consists of legal custody, which is the power to make important decisions for a child, as well as physical custody, which is the ability to have children living with you. Parents often share both legal and physical custody, though a judge might grant only one parent custody if there has been abuse, neglect, or drug use.

Parents who are divorcing or were never married might argue about custody. When parents can’t devise their own arrangement, a judge will determine custody.

Guardianship is a legal relationship between an adult and someone else, often a minor. A court grants legal guardianship to a person who is not a biological parent. That is the biggest difference between guardianship and custody.

Guardians have many of the same powers as parents, such as granting approval when children want to participate in some activity. Children going on a field trip usually need permission from their parents or legal guardian.

When a person is granted guardianship, the biological parent’s rights are not terminated (usually). That means the parents might eventually regain custody and possession of their children.

Guardianship of an Adult

In South Carolina, many guardians are appointed for adults who can no longer take care of themselves. An aging parent with dementia or other infirmities might be unable to pay their bills, buy food, bathe, or perform even the basics of self-care. They might not know where they are and become vulnerable to scammers and others who seek to abuse or manipulate them.

A court can appoint a guardian for an elderly person, called a “ward.” A guardian might also be appointed for anyone 18 or older who is mentally challenged. As an example, you might have a child who is mentally retarded, in which case you can be named guardian.

Custodians vs Guardians: Power to Make Decisions

Both guardians have certain powers over a child. Generally, a parent with custody has more power. Custodial parents can typically make important decisions regarding the child’s money and medical treatment.

A guardian might be more limited. This is a court-supervised relationship, so guardians are not given unlimited, unchecked powers. Instead, they usually make everyday decisions regarding food, bathing, groceries, and personal things like that. Major decisions might require judicial approval. Under Section 62-5-407 of the South Carolina Statutes, the court will try to “encourage maximum self-reliance and independence” and, to that end, will only issue orders that are necessary based on the ward’s limitations.

Guardians are also limited in many cases in how they can handle finances. In South Carolina, the court can appoint a conservator to handle the ward’s financial estate, which would include things like selling real estate.

Duration of Custody versus Guardianship

A parent will have custody of a child until they reach adulthood, which is age 18 in South Carolina. Until then, the parent can still exert control over the child legally—although, in practice, older teens tend to do what they want.

A guardianship might be limited and end before 18, e.g., the biological parents might have addressed their problems and are now cleared to take repossession of their children. In other cases, guardianship of a minor ends at 18 because the child is now an adult.

As mentioned above, it’s possible to become a legal guardian of an adult. Many parents seek guardianship of a child with physical or mental disabilities that make it impossible for their adult child to take care of themselves. This type of guardianship could last indefinitely, up until your death. The same is true if you seek guardianship of an aging parent or other adult. Again, the guardianship usually lasts until their death.

A guardianship can also end whenever the guardian can no longer perform their duties. As an example, a parent of an adult child with disabilities might eventually get dementia themselves. The court will probably terminate the guardianship at that point and seek to appoint someone new.

Who Grants Custody or Guardianship?

Parents can decide custody between themselves by negotiation or possibly participating in mediation. When parents cannot agree, a judge grants custody.

With a guardianship, parents can assign guardianship. For example, a single parent might be going to jail for two years. This parent can agree to temporary guardianship for the duration of their incarceration. When they get out of prison, the guardianship ends.

A court can also grant guardianship. This might be done involuntarily, when a parent is not fit to take care of their children, and the state needs to place them outside the home. If you are hoping to be named guardian, you will need to meet certain requirements, which you can discuss with an attorney.

Extended Family Members as Guardians

South Carolina often seeks to place children with relatives. For example, a single mom might have a drug addiction which makes parenting dangerous, so the state intervenes and moves the child out of the home. Ideally, they would like to place the child with an aunt or uncle, possibly even a cousin. This type of “kinship care” helps maintain continuity for the child, since they are living with someone they know.

Contact an Aiken, SC Family Law Attorney Today

Guardianship provides many benefits for children and adults. Please call Surasky Law Firm to discuss custody of a child in greater depth. If you are involved in a custody fight, we can help.


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