The Difference Between Custody and Guardianship in New Jersey


The Difference Between Custody and Guardianship in New Jersey

When people are going through a divorce, they are often faced with issues of child custody.  Child custody deals with the custody of the child or children, as well as the additional issues of child support and visitation.  People are often very concerned with how to get custody of their children.  While each parent’s prior involvement in the children’s lives is considered, prior involvement is just one of many factors. Courts base their decision on the best interests of the child which takes into account many factors to ensure the children are getting the best care, guidance, and love possible. In addition, there are many important features to consider when thinking about the difference between custody and guardianship.

Understanding the types of custody in New Jersey.

It is important to differentiate between the types of custody in New Jersey.  When you are seeking legal advice on the issue of child custody, it is necessary to ensure that these differences are clearly explained to you.  Specifically, there are two types of child custody: legal and physical.  

  •       Legal custody. In the majority of situations in New Jersey, parents share joint legal custody of their children which means that they share in the decision-making process for major aspects of their children’s lives, including their education and health.  
  •       Physical custody. This term refers to who the child physically resides with.  Often this is designated as the parent of primary residence or the parent of alternate residence depending on the amount of visitation, known as “parenting time” in New Jersey, with each parent.

The amount of child support you may be ordered to pay for your child is related to the custody and visitation schedule in your case.  Specifically, the number of overnights you have with the children may impact the amount of child support you are required to pay.  Generally, the legal custody designation does not impact the child support calculation.

Custody of the kids continues through the children’s emancipation, which generally means their 19th birthday or completion of college, depending on what the parties might have agreed to.  In many cases, physical custody may no longer truly apply due to a child’s residence at school.  However, parents may still share legal custody as far as the child’s educational decisions. Another common question parents may have is what is the difference between custody and guardianship?

Understanding guardianship in New Jersey

Skilled New Jersey family lawyers understand the difference between custody and guardianship. There are numerous factors in determining whether you have a situation involving guardianship or custody, such as the age of the child.

Guardianship generally applies after an individual’s 18th birthday.  Upon reaching age 18, New Jersey views the individual as an adult and parents can no longer make decisions on behalf of the child.  A child guardianship for an adult child may be required if the adult child is unable to make decisions about his or her life, due to illness or special needs, a guardianship may be one way to ensure that a competent adult is assisting in the care of the person.  

In order to obtain a legal guardianship in New Jersey, an application must be made that includes a current assessment by a mental health professional or a medical doctor with regard to the need for a guardianship.  Guardianships are not permanent in New Jersey and may be adjusted as necessary.  Many of the same functions of a guardian can be met by obtaining a power of attorney on behalf of the incapacitated adult. A power of attorney and is another option for people in this situation to consider.

Understanding NJ kinship legal guardianship

In some cases, the difference between custody and guardianship becomes more complicated – because the parents cannot take care of their children – due to substance abuse or other reasons. The issue of parental rights vs. guardianship is then handled in a different way – for the best interests of the child.

The guardianship of a child is then handled through a process called a kinship legal guardian.  In this case, children do not live with their parents for a period of at least 12 months and the parent is unable to care for them.  If a kinship legal guardianship is granted, the guardian has the same rights as a parent and the same decision making power.  The birth parents of the children can continue to visit with the children, but will not have the power to make day-to-day decisions.  The parents may also have an obligation to pay child support for those children in this situation.

The difference between custody and guardianship – A few key considerations?

Generally, when a non-parent is appointed guardian, the parents still retain their parental rights. In some extreme cases, such as when the parents are dead, a guardian can be granted custody. 

Another difference between custody and guardianship is that parents with custody make important decisions such as the child’s education, medical care, housing, food, and other needs. A guardian, such as a non-parent of a minor child, generally makes daily decisions for the child but doesn’t decide where the child can attend school or live – unless authorized by the guardianship documents.

The appointment process.

Normally, the biological parents have custody of their children unless the parents die. Parents normally appoint a guardian for a minor child in their will. A court can approve a request for the appointment of a guardian when the parents are deceased or are unfit. Another difference between custody and guardianship is that the guardianship appointment, while the parents are alive, is temporary until the parents become fit or, in kinship guardianships, for at least 12 months. Guardianships for children of deceased parents normally last until the child turns 18.

At DeTorres & DeGeorge Family Law, our guardianship vs. custody lawyers represent both parents, children, and kin in order to provide for children. The difference between guardianship and custody can be complicated. That is why it is important to meet with a qualified New Jersey family law attorney. We’re ready to answer all your questions about the difference between custody and guardianship. We understand that the issues involving your family and especially your children are extremely important and require special consideration and grace. That’s why we strive to create a welcoming environment for you and your family.

To discuss the difference between custody and guardianship, call us at 908-691-2104 or use our contact form to make an appointment. We have offices in Clinton and Florham Park.

Erin D. DeGeorge
Erin D. DeGeorge joined DeTorres & DeGeorge, LLC as partner to the firm in June of 2010. Prior to joining DeTorres & DeGeorge, Erin was associated with the national firm of Fox Rothschild LLP and Cutler, Simeone, Townsend, Tomaio & Newmark, LLC...
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