What is the Difference Between Custody and Guardianship?

child custodyIf there is one thing that everyone seems to agree on, it’s this: The law is confusing. Arkansas law itself is complicated enough; unfortunately, however, lawyers and lawmakers have made a cottage industry out of using words that make it even tougher to understand. I say “cottage industry” because, I suspect, some of the confusion is deliberately created for job security.

I practice family law, so I often get questions about the difference between child custody and guardianship. And it’s not just non-lawyers that see the confusion: I have often seen lawyers (and judges, frankly) that misuse or misunderstand or conflate the terms.

Here’s the best I can do to explain the difference between child custody and guardianship under Arkansas family law.

The term “custody” is sometimes informally used just to describe the person who happens to have the child at a certain time.

In a more (but not too) technical sense, custody is used to describe the arrangement that a mother and father have in regards to their children. Physical custody refers to who has the child and when, while legal custody refers to decision-making authority for the child. This is not an absolute, however.

guardianshipArkansas law also uses the term custody with grandparents. If a grandparent meets certain requirements, the law allows grandparents to ask a court for custody.

But a grandparent getting “custody” is pretty rare. If a grandparent is involved in a dispute over children, he or she normally is granted a guardianship.

Guardianship is in an entirely different section of the Arkansas code.

A guardianship is simply a court’s recognition that a person is not able to live without the help of another. This is called incapacity, and you can have an incapacity for several different reasons. A child is incapacitated because he or she is a child. A person might also have incapacity because she has dementia or Alzheimer’s or some other cognitive impairment that prevents her from being able to take care of herself.

Once a court agrees that a person has incapacity, it will appoint someone to take care of the person. Grandparents are often appointed guardians of children when, for some reason, the parents are not currently able to take care of the child.

This is a pretty basic explanation because a lawyer would need to understand all the facts in a situation to know whether it is a child custody issue or a guardianship issue. Depending on which it is, the Arkansas lawyer should approach the case differently.

We handle both kinds of cases and can help walk you through the process if you have questions.