The Maryland Uniform Child Custody Jurisdiction and Enforcement Act defines several types of guardianship for both adults and minors. While guardianship and custody are similar, and even mistakenly used interchangeably when discussing child custody and visitation, there is a big difference between the two. In the realm of estate planning, the differences are subtle, yet profound. If you’re facing issues with guardianship vs custody in Maryland, contact Frame & Frame Attorneys at Law today at 410-255-0373 to schedule an initial consultation.
Guardianship vs. Custody: What’s the Difference?
Although guardianship and custody may seem similar, they represent distinct legal concepts with important differences. Both terms refer to a legal relationship between an adult and a child, established by a court. However, they are not interchangeable. The key distinction lies in parentage and the scope of authority and responsibility granted to the adult over the child.
Guardianship occurs when a court appoints someone other than the biological parent to care for a minor. In contrast, custody typically refers to a biological parent’s legal right to care for their own child. Importantly, guardianship does not always revoke a biological parent’s custody or imply that custody has been fully transferred.
Custodial Powers
There are two types of custody: physical and legal. A parent may have both, one, or neither, depending on the outcome of a court decision. Having physical custodial powers means that the parent has the right to control the child’s physical movements. For instance, a father with visitation rights has the power to physically control his child for a defined amount of time. For example, he is in charge of the child for a sleepover or a shared night at the movies. When the child returns home to the mother, who has legal custody, the father no longer has physical custody. The mother now has physical custody of the child. A parent with legal custody has decision-making power regarding the child’s:
- Education;
- Living situation;
- Healthcare;
- Religion; and
- Day-to-day activities.
An easy way to remember who has what type of custody is as follows:
- Parents with sole custody have both legal and physical custody;
- Parents with joint or shared custody have both legal and physical custody; and
- Parents with visitation rights have limited physical custody.
Guardianship
Being a guardian is not the same as being a custodian. A guardian is charged with making decisions in the best interest of a ward (a child or elder). Their power is limited to making day-to-day decisions on behalf of the child. An aunt or uncle may become a guardian if one or both of the child’s parents die. Guardians are typically close relatives or trusted family friends. A parent will almost never need to become a guardian of his or her child. One exception is if a child is left assets in a will. In this case, a parent may need to become a guardian (and use the assets in the best interest of the child) in order to manage the funds. In order to become a guardian of a minor in Maryland, you must take the Guardian of Minor Training Program under Maryland Courts and file a Petition for Guardianship with the Circuit Court.
Frequently Asked Questions About Guardianship vs Custody
Is Guardian the Same as Custodian?
A guardian is a person or people legally appointed to manage the assets and financial responsibilities of your children if you and your spouse pass away. They are responsible for making decisions about your children’s inheritance, ensuring their financial well-being, and managing property or other assets left for their benefit. A custodian, on the other hand, is someone who assumes physical custody of your children, providing a home, care, and day-to-day support. While both roles are critical, they serve distinct purposes in ensuring both the financial and personal needs of your children are met in your absence.
Is a Custodian the Same as a Parent?
A custodial parent, sometimes referred to as a “residential parent” in certain states, is the mother or father who has been granted either sole or primary physical custody of a child by a court order. This means that the child resides with this parent most of the time, and this parent is typically responsible for the day-to-day care, supervision, and decision-making of the child. The custodial parent plays a central role in the child’s life and may also be the one who primarily ensures the child’s needs, such as education, healthcare, and general well-being, are met. While the non-custodial parent may still have visitation rights or shared responsibilities, the custodial parent is where the child spends the majority of their time.
What is the Difference Between a Custodial Account and a Guardian Account?
While both custodial accounts and guardianship can help secure a child’s financial future, they serve different purposes and operate in distinct ways. Custodial accounts, such as UTMA or UGMA accounts, are financial tools that allow parents or other adults to save and invest money on behalf of a child. The funds in these accounts can be used for the child’s benefit and are automatically transferred to them once they reach the age of majority, typically 18 or 21 depending on the state.
On the other hand, guardianship is a legal arrangement established by a court, granting an individual the authority to make important decisions on behalf of a child, such as those related to education, healthcare, and general welfare. While custodial accounts focus on financial management, guardianship encompasses broader responsibilities related to the child’s overall well-being. Understanding these distinctions is essential for ensuring the best support for a child’s future.
Who Appoints a Custodian or a Guardian?
As part of your Estate Plan, you have the option to nominate a guardian for your children. This ensures that if you are ever unable to care for them, a judge will review your nomination and appoint a guardian. While courts typically honor a parent’s wishes, there are certain circumstances where they may override your choice and select someone else to assume guardianship.
Contact Our Maryland Family Law Attorneys Today
Child custody, visitation, parenting plans, and guardianship are complex and incredibly important issues. It is easy to become confused by the stress and trauma of a divorce or a death in the family. The last thing that you want to happen is for your child’s well-being to be neglected. Ensure that your child or elder is properly taken care of by working with a Maryland family law attorney. We can help you gain full custody, shared custody, visitation rights, or guardianship depending on your goals. If you’re dealing with questions regarding guardianship vs. custody in Maryland, call Frame & Frame Attorneys at Law today at 410-255-0373 to schedule an initial consultation.