The Differences Between Custody and Guardianship

Custody and guardianship are closely related but different concepts that are used to describe the legal relationship between a child and an adult. Although these two terms are often confused, the relationships are different in a number of significant ways, including:

  • Who can appoint them
  • The legal relationship’s duration
  • Who is usually granted custody versus who is usually granted guardianship
  • The decision-making authority the adult receives

In some situations, these relationships also interact with each other.

What’s the Decision-Making Authority of Custodians and Guardians?

Child custody is actually made up of two relationships: physical custody and legal custody. Physical custody gives a person the right to exercise physical control over the child for a period of time. Legal custody, on the other hand, gives the custodian the authority to make decisions regarding the child’s legal rights, medical care, residence, religion and education.
Guardianship, in contrast, usually refers to a legal relationship in which the guardian is able to act for the benefit of another person, know as the ward. This can be used for the benefit of an adult who needs care, but in family law, it refers to an adult who is authorized to act for the benefit of a child. Guardians, unlike custodians, are somewhat limited as to what actions they can take and may only have control over the day-to-day decisions regarding the child. Major decisions, if any, may need to be approved by the court.

Who May Receive Custody or Guardianship?

In New Mexico, custody is usually given to both or one of the child’s parents based on several factors, including their participation in the child’s life, their ability to make decisions for the child together, what is in the child’s best interests, and their proximity to his or her home.
Guardians, however, are often appointed to take care of a child if that child’s parents are not able to do so because of death, jail time, illness, drug abuse or other situations. In these cases, a third party such as a grandparent, family friend or foster parent may ask to become the child’s guardian and take the parents’ place in handling day-to-day decisions.

How Long Does a Custodial or Guardianship Relationship Last?

Custody determinations are usually flexible and can be modified when there is a significant change in circumstances and the modification would be in the child’s best interests. Guardianship, however, tends to be more durable and lasts until the guardian dies, the child reaches the age of majority, or the biological parent seeks to have the guardianship revoked. The Court will need to see that the reasons the guardian was appointed have been fixed.  A guardian can be granted on an emergency or temporary basis in some situations or made more permanent.

Who Appoints Custodians and Guardians?

Only the court can grant a person custody of a child in New Mexico. If court action is needed to settle a custody case, a parent can make recommendations. However, the final outcome is in the hands of the judge.  Courts will usually follow the requests of parents if they decide what custody should look like.
A guardian can be appointed by the court, but he or she may also be appointed by the child’s parent. A parent who is in jail, for example, or is seriously ill has the right to appoint an adult to stand in his or her place for a short time. A parent can’t, however, transfer parental or custodial rights to a guardian without court action.
The relationship between guardianship and custody can become complex, but they are still two distinct concepts. As noted above, a parent who has custody may ask another adult to act as guardian, but he or she still retains parental rights in that case.
If you need assistance with guardianship or custody of a child, talk to an experienced family law attorney about your case.