Guardianship V. Custody

As a paralegal and team member of our intake team, I often get asked what to do if someone has left their minor child with them and the parent has not returned. Or what if the parent gave the grandparents “temporary custody” of the child until they could get back on their feet, and now the parents want to regain “custody” of their child?

Being a mother of two boys, these situations stand out to me.  It’s important to know the difference between custody and guardianship and your rights as a parent and/or guardian. Here’s what you need to know:

What are your Parental Rights?

Parents are automatically the guardians of their children at birth, unless or until a probate court order names someone else. Biological parents maintain their parental rights, even when they don’t have physical custody. Parents can also voluntarily award guardianship to another individual when they can’t care for their children themselves. Their parental rights are not terminated by the guardianship but are “suspended”. A guardianship order overrules the custody provisions of a family court order, because the guardian has the right to act on behalf of the child, while the parent’s rights are legally “suspended”.

What are the duties of a guardian?

Guardianship involves a child living with his/her guardian. The guardian has physical custody of the child, while the parent does not. A guardian must follow the orders of the Probate Court.  The Probate Court dictates the duties of the guardian and provides the guardian with authority to take action after proper motions have been filed.  This includes making educational and medical decisions for the minor child and expending funds of the child.

Alternative to custody and Guardianship

A parent may ask a relative to care for their child for a short period of time, for example, if the parent is serving in the military, or traveling overseas. If the parent is unable to take care of the child temporarily, they might consider giving limited rights to the caregiver through a power of attorney. Unlike a guardianship, a power of attorney does not require a court order and can be revoked at any time. Under Michigan Law, a power of attorney is valid for up to six months, after six months, the parents must sign a new power of attorney to continue the authority granted.

Can the Guardianship be terminated?

Only the Probate Court can terminate a guardianship and there are different reasons that they might terminate.  Reasons for terminating a guardianship are the parent petitions the court to terminate, a guardian notifies the court that there is no longer a need for the guardianship, or the child has reached the age of 18 and no longer needs a guardianship.

Need assistance with a guardianship or drafting a power of attorney? We can help! If you have additional questions please contact us, the consultation is always free!

 

Written by Danielle Doebel