Custody vs Guardianship: Is it Worth the Fight?

Both custodians and guardians are tasked with the responsibility of watching over, protecting, and care-giving for a minor child. The difference between custodianship and guardianship, then, is a matter of degree. Someone who has legal custody of a child has more authority and power in the child’s life than a legal guardian.

Both custody and guardianship are legal relationships determined by the court, not informal relationships that are taken up by whoever is ready or willing. Parents’ wishes may be taken into account, and are accommodated, as long as there is no risk of abuse or neglect to the child. When parents divorce, and their wishes are not in agreement with each other, a family judge must make the decision. He or she assigns custody or guardianship based on what they believe is in the best interest of the child.

What decisions can I make for my child if I have full custody?

Custody means that you have the legal right to make all decisions for your child. Unless there is evidence of abuse, you have the right to decide where your child lives, how your child is educated, and what medical care your child receives. You also have the right and responsibility to provide food, shelter, clothing in the way you see fit.

Your child’s exposure to and participation in religion, sports, and extracurricular activities is in your hands. You also have the responsibility to decide who is allowed to spend time with your child.

What decisions can I make for a minor child if I have guardianship?

In contrast to a legal custodian, a guardian is limited in their right to make larger decisions for a minor child, although they may make day-to-day decisions. The extent of the decision-making power of a legal guardian is set by the court and varies according to the situation.

For example, a guardianship may be temporarily granted to a grandparent if the biological parents are unable to care for a minor child. The grandparent assumes responsibility for housing the child, feeding and clothing the child, taking them to appointments, and seeking medical care. However, a guardian would need parental permission to take the child out of state or change the child’s name.

Legal guardianship is granted to someone other than the biological parent of a child when their biological parents are unfit or unable to assume caregiving responsibilities. In the event that a child’s biological parents have died, a guardian may receive full custody.

How long does a guardianship last?

A court-appointed guardian usually maintains the legal relationship with a minor until the age of 18. In some instances the guardianship may be terminated sooner. If the guardian is no longer willing or able to fulfill their responsibilities toward the minor child, or if the minor child marries or joins the military, the guardianship may terminate before the child’s 18th birthday.

Who can be a guardian?

Biological parents of a child are the natural guardians, with all the attending rights and responsibilities. Natural guardians of a child remain in place except in situations where the natural guardians are unwilling or unable to fulfill the responsibility. In such cases, a legal guardian will be appointed by the court.

Legal guardianships are not limited to adult-to-child relationships for the minor child. Legal guardians are also court-appointed for incapacitated seniors, developmentally disabled adults, and for adults who are found by the court to be “incompetent.” A willing family member is given priority to act as guardian. In situations in which no family member is available or willing to act as a guardian, a non-family member may be appointed guardian.

In the United States, a legal guardian must be over that age 18, enjoy legal immigration status, and have a clean criminal record. In some courts, a legal guardian may be called a “conservator” or a “legal custodian.”

What happens to a minor child if the biological parents die?

Many parents add a section in their will indicating who they choose as custodians of their children if they [the parents] were to die before their children reach the age of 18. A family court judge will uphold the biological parents’ wishes except in exceptional cases involving addiction, crime, or abuse.

If the parents have not previously indicated their request, then the court will search for an appropriate family member to take custody of the children. If no family member is found, the child becomes a ward of the court and may enter the foster care system.

What happens to a minor child if the biological parents divorce?

It may surprise many people to know that divorcing parents automatically lose full custody and guardianship of their children, and custody must be re-assigned by a family court. The court makes decisions about a minor child’s custody or guardianship based on the best interests of the child, which may or may not align with the parents’ wishes.

In cases of divorce, parents may disagree about the custody of their children. In these situations, a court is appointed to review the situation and make a decision on behalf of the children. Divorce negotiations are easier and faster when the parents have reached an agreement about child custody in mediation before their case goes to court.

Is it worth the fight to retain custody or guardianship of my kids or grandkids?

Custody and guardianship decisions are complex and often bring with them a host of emotions. Base your decision on solid facts, rather than fears and conjectures. Discussing your situation with a Weber County family custody lawyer is the best way to gather information before making this important decision. Your initial consultation will be free of charge, as both you and the lawyer need a chance to review the situation before formalizing a professional relationship. They can help guide you through the process as you seek what is best for your family.


Custody and guardianship can be contentious issues in divorce proceedings. In rare cases, parents may fight for custody or guardianship of their children to protect certain rights. However, is this battle worthwhile? The response is circumstance-dependent. Importantly, divorce lawyers and attorneys will know your state’s custody, guardianship, and divorce laws and rules. They can advise you on the benefits and drawbacks of engaging in such a battle before its occurrence.

7 Aspects of Custody and Guardianship Infographic


Custody vs Guardianship: Is it Worth the Fight?

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