In my last post, I discussed the difference between a guardianship and a power of attorney. Here, I will explain the difference between guardianship and custody. This explanation is simplified and may not apply in all cases.
What is Guardianship?
Okla. Stat. tit. 30 § 1-105 says, “A guardian is a person appointed by the court to take care of the person or property of another.”
A person can become the guardian of either a child (whose parents are unfit) or of an adult (who is incapacitated.) Generally, in family law cases, a person may not obtain custody of an adult. However, if an adult is incarcerated, the adult is said to be “in custody.” But a prison warden is not the guardian of a prison inmate because a court has not appointed the warden to take care of the inmate’s property.
What is Custody?
For a child, custody refers to the right to direct a child’s upbringing. In divorce cases, the Court must decide which parent will have custody. If the court grants sole custody to one parent, that parent has the exclusive right to direct the child’s upbringing. If the court grants joint custody to both parents, both parents have an equal right to direct the child’s upbringing. To read more about the difference between sole custody and joint custody, click here.
Differentiating Between Guardianship and Custody
In general, for a child, a guardianship is where a non-parent has custody of the child. Thus, for children, a guardianship case is almost always a custody case, but a custody case is not a guardianship case unless a non-parent is asking for custody of a child. Under Oklahoma law, for a non-parent to obtain a guardianship, the non-parent must show that the parents are unfit.
There are, however, a few instances where the court will appoint a parent as guardian of a child. Such cases include situations where a child owns the property, and the parent must obtain the legal authority of a court to transact business regarding the property. However, these guardianship cases are not custody cases because one or both parents will already have custody.
If you are involved in a guardianship or custody case, the Persaud Law Office may be able to assist you. Contact us today.