Anyone under 18 is a minor, so an adult must have legal authority to make decisions for them. Most of the time, that's the child's parents. When parents separate, a court may decide how those responsibilities are shared, which is what people usually mean by custody. When a parent can't care for a child, another adult may need to become the child's guardian. The terms are often confused, but they're legally different, and the difference matters. So what is the difference between guardianship and custody? Custody is shared between parents, while guardianship gives another adult legal authority over a child.
What child custody means
Custody is about how parents share responsibility for their children after they separate or divorce, or when they were never married. It typically covers two things:
- Decision-making about education, health care, religion and activities.
- Parenting time, meaning where the child lives and when each parent has the child.
Illinois law now uses the terms “allocation of significant decision-making responsibilities” (750 ILCS 5/602.5) and “parenting time” (750 ILCS 5/602.7) instead of “custody.” Indiana still uses legal custody and physical custody, decided by the child's best interests under Indiana Code 31-17-2-8. Learn more on our child custody page.
What guardianship means
Guardianship gives a non-parent legal authority to care for a child and make decisions for them. It's often used when parents have died, are seriously ill, are deployed, are incarcerated, or otherwise can't care for the child. Grandparents and other relatives are common guardians.
In Illinois, guardians of minors are appointed under the Probate Act (755 ILCS 5/11-5). In Indiana, courts appoint guardians under Indiana Code 29-3-5-3 when appointment is necessary and serves the child. Courts generally give significant weight to parents' rights and wishes, and in many cases a parent's consent or inability to care for the child is a key factor.
Key differences between custody and guardianship
- Who it's for: custody is between parents; guardianship is for a non-parent.
- Parents' rights: custody orders divide parental responsibilities; a guardianship can limit parents' day-to-day authority while it's in place, without ending their parental rights.
- Duration: custody orders last until modified or the child is an adult; guardianships may be temporary or longer-term and can end when a parent is able to resume care.
- Which court: custody is handled in family court; guardianship of a minor is often handled through probate proceedings.
Planning ahead: naming a guardian in your will
Parents can name who they want to raise their children if something happens to them, usually in a will. Courts give that choice serious weight. It's one of the most important reasons for young parents to have an estate plan; see estate planning and why a first responder needs an estate plan.
How a guardianship case usually works
- The person seeking guardianship files a petition with the court, explaining why it is needed.
- Parents and other required relatives receive notice and a chance to respond or consent.
- The court may review background information and the child's circumstances.
- At a hearing, the judge decides whether guardianship is necessary and in the child's best interests.
- If appointed, the guardian receives court documents (often called letters of guardianship) that schools and doctors recognize.
Some guardianships are short-term, such as during a parent's deployment or illness; others continue until the child turns 18.
Common questions about custody and guardianship
Can a grandparent get custody?
In some circumstances, non-parents can seek parental responsibilities or guardianship, but the rules are specific and parents' rights carry great weight.
Does guardianship end parental rights?
No. Guardianship is different from adoption or termination of parental rights. Parents can often ask to end a guardianship when circumstances change.
Do I need a court order to care for a relative's child?
For short periods, a parent may be able to delegate some authority in writing. For longer arrangements, a guardianship may be needed so schools and doctors recognize your authority.
If you have questions about your situation, First Response Legal serves clients across Northwest Indiana and the Chicagoland area from our Hammond and Chicago offices. Schedule a consultation.
Sources and further reading
- 750 ILCS 5/602.5: Allocation of decision-making, Illinois General Assembly
- 750 ILCS 5/602.7: Allocation of parenting time, Illinois General Assembly
- Indiana Code 31-17-2-8: Custody order factors, Justia (Indiana Code)
- 755 ILCS 5/11-5: Appointment of guardian of a minor, Illinois General Assembly
- Indiana Code 29-3-5-3: Appointment of guardian, Justia (Indiana Code)
This article is for general information and is not legal advice.