Custody v. Guardianship

There are two types of court actions involving the care of a minor child – a custody action and a guardianship action.

Custody involves the care of a minor child by the parents and is handled in Family Court. There are two types of custody – legal custody and physical custody. Legal custody involves the decision-making rights and responsibilities, while physical custody involves the physical time spent with the child. The standard for determining custody is the “best interest of the child”.

Guardianship involves a situation where the court appoints an adult other than the parents to care for the minor child and is handled in Probate Court. There are three situations in which a guardian will be appointed for a minor child – (1) the minor has no living parents, (2) the minor’s parents have had their parental rights terminated, or (3) a minor’s parents are unwilling, unable or unfit. The guardian must always act in the best interest of the child and must make decisions about the child’s education, support and maintenance. The guardianship of a minor child terminates when the child reaches age 18 or when a court determines that the guardianship is no longer necessary, such as when a parent is now willing, able and fit to care for the child and the court finds it is in the best interest of the child.

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