When families face legal questions about children, emotions run high. As a family law attorney in Bowling Green with over 30 years of experience, Pamela C. Bratcher walks beside parents, grandparents, and relatives during some of the most difficult times of their lives.
Common options that many Kentucky families with children weigh are guardianship vs. custody. While the two share some similarities, they are different legal arrangements under Kentucky law.
Understanding the difference between guardianship and custody can help you make the best decisions for your family, and we can help you make an informed decision.
What Is the Difference Between Guardianship and Custody?
Is guardianship the same as custody? The quick answer is no. Custody and guardianship can overlap, but they have many differences, including the following.
Custody
Custody refers to the rights and responsibilities of a child’s parents. Kentucky law recognizes two types of custody:
- Legal custody. This covers the right and duty to make important decisions about a child’s health, education, and upbringing.
- Physical custody. This covers where the child lives and the daily care they receive.
Courts usually address custody during a divorce, during a separation, or when parents are unmarried. Courts start with the presumption that joint custody and equal parenting time serve the child’s best interests. However, judges can award sole custody if one parent is unable to provide a safe and stable home.
Unlike guardianship, custody is typically reserved for biological or adoptive parents. However, a non-parent may receive custody if they are a “de facto custodian,” which means:
- They have been the child’s primary caregiver, and
- They have housed the child for at least six months within the last one or two years (depending on the child’s age and circumstances).
A non-parent must prove by clear and convincing evidence that they are a de facto custodian. Clear and convincing evidence is a high burden of proof.
Guardianship
Guardianship typically applies when a parent cannot—or will not—care for their child. Under Kentucky law, a guardian is a person appointed by the court to make decisions for a ward (a minor or an adult who is legally incapacitated).
A guardian has many of the same powers and responsibilities as a custodial parent, such as:
- Making medical choices for the ward,
- Enrolling the ward in school,
- Ensuring the ward’s safety, and
- Supporting the ward.
A guardian is typically not financially responsible for a child to the same extent that a parent is. And guardians are not obligated to cover or answer for a child’s financial and legal liabilities the way a parent is.
Common situations that lead to guardianship include:
- A parent struggling with addiction or incarceration,
- A parent passing away or being absent, and
- A child needing long-term planning and care because of special needs.
Grandparents, other relatives, and close family friends often step in as guardians. Guardianship can be granted to non-relatives or someone who is not a family friend if the court finds it is in the child’s best interest. In many cases, guardianship does not replace parental rights—it often fills the gap when parents are unavailable.
Custody vs. Guardianship: Key Differences
What is the difference between guardianship and custody? Let’s break down some of the main discrepancies.
Differences in Who Can Obtain Rights
The law usually limits custody rights to parents unless another person can provide strong proof that they are a de facto custodian. Guardianship often goes to a child’s family, but any interested person can be a child’s guardian if they can prove their appointment is in the child’s best interests.
Differences in Obligations and Liabilities
When it comes to guardianship vs. custody, individuals with custody and guardianship roles are both responsible for supporting a child or ward and making important decisions about their life. However, typical guardians are not financially or legally liable for a ward’s actions, and a person with custody is liable for a child’s actions.
Differences in Permanency of Position
Guardianship is less permanent than custody. Individuals with custody typically have rights and duties toward a child until the child is at least 18. While a court may modify custody, courts typically do not end custody rights and obligations unless serious circumstances (such as abuse or neglect) warrant terminating parental rights. On the other hand, a guardian can resign at any time. A court may also remove a guardian if their role is not in the ward’s best interest.
Speaking to an experienced attorney is key when determining what role guardianship or custody should play in your life. Pamela C. Bratcher, Attorney at Law, can review the unique facts of your case to help you decide the best actions to take to protect your family.
Reach Out Today for Help
Family law issues are some of the most personal and painful challenges people face. You deserve an attorney who listens, cares, and is ready to fight for the best interests of your loved ones.
Pamela C. Bratcher has more than 30 years of experience and a tradition of giving top-level service to the families of Kentucky. If you have questions about guardianship vs. custody, call our office today or reach out online. Together, we can find a path forward that protects your family and secures peace of mind.
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