Custody and legal guardianship both address the legal relationship between a child and an adult caregiver. A court determines both statuses but several important differences exist.
Let’s consider more about both child custody and guardianship, including the primary differences, who can acquire each legal status, and the process to apply for guardianship in California.
Child Custody in California
In California, “child custody” includes both legal custody—who makes important decisions about the child’s health, education, and welfare—and physical custody—where the child lives and who provides day-to-day care. When parents are married or living together, they automatically share joint legal and physical custody of their child. Custody issues typically arise only if the parents separate or divorce.
Upon separation, the child generally resides primarily with one parent while “parenting time” is scheduled for the other parent. In a shared parenting arrangement, both parents must cooperate to make decisions that affect the child. If sole legal custody is awarded by the court, the parent with custody makes unilateral decisions for the child on matters such as:
- Education
- Healthcare
- Religion
- Extracurricular activities, travel, etc.
Custody is granted by the California courts during divorce proceedings or when unmarried parents need a formal agreement. All matters concerning children are resolved according to the best interests of the child.
Guardianship in California
Guardianship refers to the temporary or permanent legal status of an adult appointed by the court in California to act as the primary caregiver for a child.
The legal guardian essentially performs the role of a parent, acting in the best interests of the child in the absence of a parent (usually due to death, incapacity, imprisonment, or abandonment).
Often, the legal guardian is a relative of the child (a grandparent, aunt, or uncle), who will care for the child until he/she reaches the age of 18.
Less commonly, the court may appoint a guardian to care for the child while the child’s parents still retain full or partial custody. Sometimes, the guardian is only permitted to make legal decisions for the child while a parent retains physical custody of the child—or vice versa.
Guardians are often nominated by parents through wills. An essential estate planning strategy should include making adequate provisions for dependent children. However, a judge must approve such decisions before legal guardianship status is conferred.
What is the Primary Difference Between Custody and Legal Guardianship?
Custody and guardianship carry many of the same rights and responsibilities. The main difference is that custody is granted by a court to a biological or legal parent, while guardianship is legally granted to another responsible adult who is not the child’s parent.
Can a child have both a legal guardian and living parents with custody?
In California, a child can have both a guardian and living parents with physical or legal custody if one or both parents are temporarily unable to care for the child due to illness, incapacitation, incarceration, or other circumstances.
Does legal guardianship override parental custody in California?
Parental rights are among the strongest of all rights in California, though these rights can be limited by the courts when the child’s health, safety or welfare is at risk. Parental rights are rarely removed, and if legal guardianship is granted, a parent’s rights to certain types of custody may coexist, depending on the court’s decision. As always, the determining factor is the child’s best interests.
Who Can be Appointed a Legal Guardian in California
Almost any responsible adult over the age of 18, of sound mind, and legally resident in the U.S., can become a guardian in California, but not without prior court approval. This applies equally to non-family members as well as relatives, though it is more common for family members to be granted guardianship on the basis of the child’s best interests. The court will consider who can best provide a nurturing and stable home environment for the child.
Certain individuals are excluded from legal guardianship, including convicted felons. Anyone with a history of committing abuse, a criminal record or a lack of financial means can expect scrutiny over the capability to provide a safe environment where the child can thrive. Investigations and background checks are likely before the court grants guardianship.
The Legal Guardianship Process in California
If an individual seeks legal guardianship and nobody contests the application, the process is more straightforward, though it can still take at least two months to finalize. Legal assistance from an experienced family law attorney can prevent mistakes, omissions, or delays with the application.
In emergencies, the process will be fast-tracked. Temporary guardianship may be awarded to cover the child’s immediate needs and a more permanent situation sought.
Steps to legal guardianship
- Once you assess the child’s needs and decide to proceed with an application for legal guardianship, the first step is to file a guardianship petition at the Superior Court of the county where the child resides—generally in the Probate Division. Your attorney can help with the petition, clearly stating the reasons why guardianship is required, with supporting evidence.
- The required documents are many and include:
- Petition for Appointment of Guardian of the Person
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
- Confidential Guardian Screening Form
- Notice of Hearing: Guardianship or Conservatorship
- Duties of Guardian
- Letters of Guardianship
- Order Appointing Guardian or Extending Guardianship of the Person
- Notify interested parties (such as parents or current guardians) of the proposed guardianship by having another adult serve copies of the documents to them at least 15 days before the guardianship hearing.
- Undergo an assessment by a court official or a representative of Child Protective Services or Social Services to confirm the suitability of living conditions.
- Attend a guardianship hearing with your lawyer, at which the judge will ask questions to determine whether granting guardianship will be in the child’s best interests.
- Confirm guardianship and begin the role of looking after the child’s welfare.
The family attorneys at The Sands Law Group, APLC in Los Angeles can help with guardianship petitions and custody matters. Contact us online or call 213-788-4412 today for a free 15-minute case evaluation
Meet Thomas Sands –
Experienced Los Angeles Divorce & Family Attorney
Thomas D. Sands is a highly experienced and widely respected divorce and family attorney serving clients throughout Los Angeles, Riverside, and San Bernardino counties for more than 2 decades. As the founder and principal family attorney at The Sands Law Group, APLC, Thomas Sands is dedicated to providing strategic, cost-effective legal representation to individuals and families facing some of life’s most difficult transitions.
Clients trust Thomas Sands not only for his legal knowledge but also for his compassion. Whether you are facing a straightforward divorce or a complex high net worth separation, Thomas provides strategic, results-driven guidance tailored to your unique situation. He understands the emotional toll that divorce and custody disputes can take, and he approaches every case with a commitment to minimizing stress while vigorously protecting your rights and long-term interests. His client-first philosophy has earned him a strong reputation among both peers and families across Southern California.
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In recognition of his excellence in family law advocacy, Thomas Sands has received numerous accolades, including being named Litigator of the Year by the American Institute of Trial Lawyers and Lawyer of the Year by the American Institute of Legal Professionals in 2023. These honors reflect his ongoing commitment to delivering exceptional legal results with professionalism and care.
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