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The definitions of custody and guardianship can vary based on the probate and child custody laws that are in place in a particular location. In general, guardianship means that a party, usually a non-parent, is appointed by a will or by the court to care for a minor or incompetent adult and act in the best interests of that person. Custody is when a person, usually the biological parent of a minor, is given the authority by the court to make long-term decisions regarding the minor’s welfare, including education and medical care. Custody and guardianship are similar in the fact that a person is appointed to care for another person, but there are a few differences in the legal requirements of custody and guardianship, respectively.
With guardianship, there are different types of guardians that are appointed by the court, and the guardian typically remains in place until the minor reaches 18 years old. A guardian of the estate is a person, either a parent or third party, who is designated by the court to oversee the financial matters of a minor. A guardian ad litem is a person, usually an attorney, who is court-appointed to represent the minor's best interest during a legal matter, usually a child custody case. A guardian of the person is someone appointed by the court who is responsible for a minor’s well-being, including his or her education and medical care, but is not responsible for finances or property. An interim guardian is a person designated by the court as a temporary guardian, such as a foster parent, until a permanent guardian is appointed.
Custody and guardianship are both designed to make sure that the minor or incompetent adult is cared for properly. Custody of a minor becomes an issue when the parents divorce or separate. The court must determine the custody arrangement between the parents. The two types of custody that are granted in child custody cases are physical custody and legal custody.
Physical custody means that the parent is responsible for the minor’s daily needs, such as food, clothing and shelter. This type of custody means that the minor physically lives with the parent. Legal custody allows a parent to make major decisions for the minor, including where he or she will go to school, religious affiliation and medical care.
Physical and legal custody can be awarded jointly between both parents. When parents have joint physical custody, the minor will spend equal time with each parent. With joint legal custody, both parents must agree on decisions related to the minor. There are variations to custody arrangements, which can include one parent having sole physical custody while both parents have legal custody. It is also possible for one parent to have sole legal custody while both parents have joint physical custody.
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