What Is the Difference Between Guardianship and Custody
Understand the key differences between guardianship and custody and which process benefits your loved ones. Learn how the Law Offices of Wenarsky and Goldstein, LLC can help you navigate adult guardianship.
Guardianship Vs Custody: Features and Key Differences
Guardianship and custody are legal concepts that involve providing care for one’s loved one and making important decisions on their behalf.
However, despite their obvious similarities, both terms are quite different as they apply to different situations and have distinct legal implications.
If you’re seeking legal authorization to care for your adult child or loved one with any level of incapacity in New Jersey, this guide explains these often confused processes and identifies them to help you understand which option might be right for your situation.
Read on for more details, and do not hesitate to reach out to our team at the Law Offices of Wenarsky and Goldstein, LLC, if you have further questions.
Understanding Guardianship
Guardianship is a legal relationship/arrangement that is established when a court appoints an adult to care for a minor child or an incapacitated person. This arrangement grants the guardian decision-making authority over the ward’s well-being, education, and medical care.
The legal powers granted to a guardian depend on the type of guardianship and what the court orders, but generally, they include
- Making decisions about the ward’s living arrangements.
- Managing medical care and treatment.
- Handling finances, paying bills, or managing assets.
- Ensuring the ward’s basic needs (food, shelter, clothing) are met.
Types of Guardianship
Guardianship in New Jersey can be divided into two broad categories: Legal guardianship of a minor and disabled guardianship.
Guardianship of a Minor
Guardianship of a minor in New Jersey may be required in two different scenarios.
The first, which is the most common, occurs when a child’s biological parents are unable or unavailable to care for them either temporarily or permanently. The guardian in such cases (usually an adult who has been responsible for the child for about 12 months can apply to formalize the relationship through the procedure known as kinship legal guardianship.
This type of guardianship can last until the child is 18 or until their parent(s) regain the ability to resume their responsibilities.
The other branch of guardianship of a minor occurs when a child receives funds
- From a personal injury settlement
- As inheritance from a will
- As the beneficiary of a life insurance policy or other death benefit.
Under New Jersey law, Whenever a minor receives such funds, the funds must be deposited with the Surrogate’s Court usually in the county where the minor resides) and placed in the Surrogate’s Intermingled Trust Fund (SITF), also known as the Surrogate’s Intermingled Minors’ Account (SIMA).
To access those funds, a guardian must be appointed by an appropriate Surrogate’s Court. In such cases, the child’s parents have the first right to apply for guardianship.
Disabled Guardianship
Usually, a person who is over 18 is deemed to be legally capable of making their own decisions and handling their affairs. But if such a person is found to be incapable due to a physical or mental disability, they would need someone else to act for them and ensure their good wing.
Disabled guardianship applies to such adults who cannot manage their own affairs and have been declared incapacitated by a court.
Applying for guardianship in such circumstances will usually require the involvement of the court and the New Jersey Department of Human Services. Our experienced guardianship lawyer can explain how the process works and what you need to do to become your adult child’s legal guardian.
In either category of guardianship, for adults or minors (when the guardianship is to protect their funds), guardianships may be granted:
- Over the person alone. This would allow the guardian to make personal decisions for the person.
- Over the estate or property alone ( this would allow the guardian to take legal steps to preserve the person’s property or inherited funds.
- Over both the person and estate. In such cases, the guardian is responsible for the total welfare of the child/adult and their assets.
Understanding Custody
Custody refers to the legal rights and responsibilities a parent, and sometimes a guardian has over a child.
A custodian (the person awarded custody) has the legal responsibility to provide for the child’s basic needs, such as:
- Physical Care: Providing a safe, healthy environment, including food, shelter, and clothing.
- Emotional Support: Ensuring the child’s emotional and psychological well-being.
- Education: Making decisions regarding the child’s schooling and educational needs.
- Medical Care: Ensuring the child receives proper medical attention and making decisions about their healthcare.
- Discipline and Guidance: Offering discipline and guidance for the child’s growth.
The custodian also has certain rights, including:
- Making day-to-day decisions regarding the child’s welfare.
- Making significant decisions, such as those related to education, religion, and health care (depending on the type of custody)
Types of Custody
Child custody can be broken down into:
- Physical Custody: This type of custody determines where the child lives and who is responsible for their day-to-day care. A parent may be awarded sole physical custody. In such cases, the child lives with that parent, while the other parent may have visitation rights. Joint or partial physical custody may also be awarded to both parents. In such cases, the child will live with both parents at pre-determined times.
- Legal Custody: A parent who is awarded legal custody has the right to make important decisions about the child’s life, including their education, health care, and religious upbringing. Legal custody may be awarded to one parent solely or to both parents jointly.
Custody issues tend to arise When a child has two parents who are not married, divorced, or separated. In such cases, the courts will determine the appropriate custody arrangement with the child’s best interests in mind.
Custody orders can also be modified if circumstances change significantly. For example, if a custodial parent becomes incarcerated or moves far away.
Key Differences Between Custody and Guardianship
From the previous points raised, the differences between guardianship and custody may have become more evident. Still, we’ve chosen to highlight some of the differences here for clarity.
- Age of the Beneficiary: Custody applies only to children who are below 18. In contrast, guardianship can be ordered for the benefit of children or incapacitated adults, regardless of how old they are.
- Legal Standing: Custody typically involves the child’s biological or legal parents. Guardianship, on the other hand, can be granted to someone other than the child’s or adult’s biological parents, such as a relative, family friend, or anyone else the court sees fit.
- Legal Process: The legal process for establishing each arrangement varies. Custody is often determined during divorce proceedings or disputes between parents. Guardianship involves a separate court petition and hearing.
- Parental Rights: In custody, the rights of the non-custodial parent remain intact, while in guardianship of a child, the biological parents may retain certain rights but are not the primary decision-makers. Parental rights do not exist in adult guardianships unless ten parents are the guardians since parents typically do not have rights over their adult children.
Essentially, custody is a parental-based arrangement, while guardianship is a welfare-based arrangement that can occur with or without parental involvement.
How the Law Offices Of Wenarsky And Goldstein, LLC Can Help
At the Law Offices of Wenarsky and Goldstein, LLC, we have extensive experience handling adult guardianship cases and offering top-notch guidance for families and individuals navigating these complex legal matters.
Our team understands the unique challenges that arise when a loved one is no longer able to make decisions for themselves, often due to age, disability, or illness. With a deep knowledge of New Jersey guardianship laws, we can help you navigate the legal process to protect your vulnerable loved one.
If you’re the parent of a child with a disability who just turned 18 but cannot make decisions for themselves, you may no longer be qualified to make decisions for them by law. We can help you make the transition from custody to guardianship to ensure your child’s continued well-being.
We take a highly personalized approach toward each case we handle and work closely with families to create tailored solutions, addressing both the legal aspects of the Guardianship process and emotional concerns.
This individualized strategy ensures that their clients receive the support they need during what can be a difficult and emotional process.
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Guardianship and custody both involve the care and responsibility of a child or dependent adult, but they serve different legal purposes.
Custody typically applies to parents and deals with the day-to-day care of a child, focusing on their upbringing and welfare. Guardianship, on the other hand, extends to non-parents and can involve both minors and adults, often in cases where an individual is unable to make decisions due to age or incapacity.
Understanding the distinctions between the two is crucial when determining the best legal solution for the individual’s needs, ensuring their well-being and protection.
If you’re considering adult guardianship for your loved one, our experienced legal professionals can provide the clarity and support needed to navigate the court process effectively.
Contact us today, and let us help you take the next steps toward resolving your adult guardianship concerns.
Call the Law Office of Wenarsky & Goldstein
At the Law Offices of Wenarsky & Goldstein, LLC, our New York and New Jersey attorneys are experienced and knowledgeable in bankruptcy, estate planning and probate, guardianship, special needs planning, and real estate law. To learn more about how we can assist you with your legal needs, call us today at 973-453-2838.
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