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 to schedule an initial consultation.
What Is Custody in Maryland?
Custody is the legal right of a parent to care for, make decisions about, and physically control their child. Maryland courts recognize two types of custody, and a parent may hold both, one, or neither, depending on the circumstances.
Physical Custody
Physical custody determines where the child lives and which parent is responsible for the child’s day-to-day supervision during a given period. A father with weekend visitation, for example, has physical custody of the child during that time. When the child returns to the mother’s home, physical custody shifts back to her.
Legal Custody
Legal custody is the authority to make major decisions on behalf of the child, including decisions about education, healthcare, religious upbringing, and living arrangements. Here is how custody typically breaks down in Maryland:
- A parent with sole custody holds both legal and physical custody.
- Parents with joint or shared custody both hold legal and physical custody, though the child’s time may not be split equally.
- A parent with visitation rights holds limited physical custody during scheduled time with the child but does not hold legal custody.
An important point under Maryland law: parents are considered the “natural guardians” of their children. This means the court does not need to appoint a parent as a guardian. Custody is the framework courts use to define parental rights and responsibilities, particularly during or after a divorce or separation.
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.
How to File for Guardianship of a Minor in Maryland
If you need to become a guardian of a minor in Maryland, the process involves several steps:
- Complete the Guardian of Minor Training Program. Maryland Courts requires prospective guardians to watch an orientation video and file a certificate of completion with the court.
- File a Petition for Guardianship of Minor (Form CC-GN-001). This petition is filed with the Circuit Court in the county where the child lives or is physically present.
- Obtain parental consent. Both parents must consent to the guardianship. If a parent cannot be located or identified, you must file an affidavit describing your attempts to contact them.
- Attend a court hearing. A judge will review the petition and determine whether the guardianship serves the child’s best interest.
The process can take anywhere from a few months to a year depending on the complexity of the case and whether the guardianship is contested.
Standby Guardianship: Planning Ahead for the Unexpected
Maryland law also provides for standby guardianship, which is an important tool for parents who are facing a serious illness, military deployment, or other circumstances that could leave their child without a caregiver.
A standby guardian is someone a parent appoints in advance. The appointment is triggered by a specific event, such as mental incapacitation, physical debilitation, or the start of an adverse immigration action. Appointing a standby guardian does not affect the parent’s custody rights. The parent retains full legal authority until a triggering event occurs.
This type of planning fits naturally within a broader estate plan. Naming a standby guardian is one of the most important steps you can take to protect your child if something happens to you unexpectedly.
Custodial Accounts vs. Guardian Accounts
Financial planning for children often involves both custodial accounts and guardianship of property, and these are not the same thing.
- A custodial account (such as a UTMA or UGMA account) is a financial tool that allows a parent or other adult to save and invest money on behalf of a child. The funds are transferred to the child at the age of majority (18 or 21, depending on the state).
- Guardianship of property is a court-supervised arrangement. The guardian manages the child’s assets and must file periodic accountings with the court to demonstrate how funds are being used.
If you are considering how to protect assets for your child’s future, a special needs trust or a properly structured family trust may also be worth exploring.
Nominating a Guardian in Your Estate Plan
As part of your estate plan, you have the ability to nominate a guardian for your minor children. This nomination is typically included in your will and tells the court who you want to step in if both parents pass away or are unable to care for the child.
While Maryland courts generally honor a parent’s nomination, the judge’s ultimate priority is the best interest of the child. In rare cases, the court may appoint someone other than the nominated guardian if it determines the nominee is not suitable. Naming a guardian is not something to put off. If you pass away without a nomination, the court will appoint someone on your behalf, and that person may not be who you would have chosen. Working with a Maryland estate planning attorney ensures that your wishes are clearly documented and legally sound.
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 to schedule an initial consultation.