The terms guardianship and child custody are often confused. In most scenarios, the two terms are interchangeable. The main difference is in where the order originates. Guardianship orders are issued by a probate court. Custody orders are done by a local family court. Thus, it is possible for a guardian to have custody over a child even when the parent still has parental rights. Therefore, what happens when there is a conflict between the two parties? Does one have more rights over the child than the other?
A Look at Guardians’ Rights
A child’s first guardian is a parent. A third party can be appointed guardian by the court, or per the wishes of the parent. Once the guardianship order is in effect, the guardian takes the place of the parent. The typical powers retained by the guardian include the authority to make educational and medical decisions, and any other decisions that are crucial to the child’s upbringing. The guardian will also house and care for the minor for the duration of the court order.
Examining Parental Rights
Parental rights emanate from the inherent authority granted to a child’s parents. Parental rights give one physical and legal custody over a child. This means that they have the ultimate decision making power over the child’s well-being. However, parental rights are not permanent in all cases. A court can terminate or suspend these rights for a variety or reasons. Generally, a parent’s rights will be affected when there is an issue in the home that threatens the physical or mental health of the child.
When Guardianship Rights Supersede Parental Rights
There are certain times when guardianship rights can overrule the wishes of a biological parent. This usually occurs when the child is in the physical custody of the guardian. In such a case, the parental rights are not really terminated. Rather, the rights are put on hold until the court deems it appropriate to reinstate them. During this period, the guardian will be responsible for making all of the major decisions about the child’s life. For more information about how this works in your jurisdiction, contact a child custody lawyer.
The End of a Guardianship
Just like parental rights, a guardianship can be extinguished through a couple of different ways. If the guardianship was a voluntary appointment by the parent, the parent has the right to end it. Temporary guardianships imposed by the court will also have a specific time period that they will remain valid. Permanent guardianships go on for an unspecified time period until the court or parent take action to terminate it.
A Final Answer
The answer to the question about which rights have precedence mainly depends on the timing of the matter. If parental rights are suspended, the guardian has the power to make decisions. The same holds true for cases where parental rights are terminated. However, there are some jurisdictions where parents and guardians maintain the same authority at the same time. Speak with an experienced lawyer in your area to find out how the law applies.
If you need help with a guardianship, or child custody issue in Utah, contact Spencer and Jensen, PLLC. An experienced attorney can review your case and answer any questions you have.