Guardianship vs. custody are legal terms that may be used interchangeably. However, there are specific and clear differences between the two.

Guardianship: An order of guardianship provides an adult with the legal power to make decisions for another person, usually a minor or an adult who is unable to make decisions independently. A person may act as a guardian for a person or that person’s property. Guardians may be appointed by the Family Court, Supreme Court, or by the Surrogate’s Court. If the minor is over first (14), consent from the child is required. An order of guardianship as it pertains to minors lasts until the minor turns twenty-one (21) years old and is usually final.

Custody: In contrast, a custody order designates an adult to be the primary caretaker of a child. There is physical custody, which is used to determine who the child lives with and whose address is used for the child’s school, and there is legal custody, which allows the adult to make life decisions for the child. Parties can share legal custody (“joint custody”), which means that the parties (usually the parents) make decisions together.  In such a case, the court may designate one party to have “final decision-making authority” if the parties cannot agree about a major decision.

Visitation: Moreover, custody petitions are also used to establish visitation between non-custodial parents, grandparents, and siblings and the child.  (Grandparents have to first establish “standing” to obtain an order of visitation over the objections of a parent.)  Custody cases are heard in Family or Supreme Court and the child’s best interests are paramount. The Court will take into account the relationship of the parties with the child and aim to maintain a consistent quality of life for the child. Custody orders can be modified based on the circumstances of the family.

If you are seeking legal assistance in a custody or guardianship case, Contact us.

Blog written by Louise Lingat, Law Offices of Joseph H. Nivin, P.C.