What Are the Differences Between Custody and Legal Guardianship?

Courts in Colorado make all family court decisions in the best interests of children, including decisions on adoptions, foster care, child custody, and legal guardianship. Child custody and the legal guardianship of children are similar cases in family court. They both involve decisions about who provides a home for a child, cares for their daily needs, and makes important decisions for the child, including decisions about healthcare and education. However, child custody and legal guardianship are not the same. While they involve similar decisions, they are two separate matters.

Child Custody Vs. Legal Guardianship in Colorado

Both terms describe a legal relationship that exists between a child and an adult caregiver, but the distinct legal difference between legal guardianship and custody is a matter of biology. While child custody decisions impact each biological parent’s amount of parenting time they spend with their child, guardianship is the responsibility for caring for a child by adults other than their natural parents. Parents are the natural caregivers to their children, but courts can intercede in a parent’s rights to take care of their children in certain circumstances if it’s in a child’s best interest due to neglect or abuse.

Guardianship of a child never refers to the natural relationship between a child and parent, but only to a court-appointed relationship.

Understanding Child Custody in Colorado

When parents seek a divorce or are unmarried, the court steps in to resolve disputes over sharing parenting time (custody) and child support. In Colorado. Unmarried parents may either both sign an acknowledgment of paternity (fatherhood) or one parent may request a court-ordered paternity test to prove paternity.

When a child has two parents with full parental rights and obligations, either through marriage or proven paternity, and the parents live apart, the court determines the amount of time the child spends with each parent through a parenting time schedule. In the best-case scenario, the parents communicate effectively and compromise to form their schedule and the court simply signs off on their agreement. In other cases, the parents may have a dispute over child custody. In these cases, they both present their cases to the court with guidance from their attorneys and a judge decides on two types of child custody:

• Physical custody of the children
• Legal decision-making custody of the children

Decision-making child custody refers to a parent’s right to make important decisions for their child, including healthcare and educational decisions.

Once a judge decides on child custody, the orders typically include child support payments made from the parent with less parenting time to the parent with a greater amount of parenting time, or from a higher-earning parent to a lower-earner.

Legal Guardianship in Colorado

A court appoints legal guardianship for a child if their parents are deceased or otherwise unable to care for them. Many parents choose and name their child’s potential guardian in their estate plans, to be carried out in the event of their death. A legal guardian has rights and responsibilities toward a child granted by the court until the child reaches the age of legal majority, or age 18 in Colorado. The court grants the adult both physical access to the child and the authority to make important decisions for the child’s life such as medical and educational decisions.

If a child’s parents are deceased, the legal guardianship in Colorado remains in place until a child turns 18 or otherwise becomes emancipated by marrying or joining the military. When a judge puts guardianship into place due to a child’s parents’ inability to care for them, or due to neglect or abuse, the order may be temporary or could be terminated if the child’s natural parent becomes able to provide care for them.

Child guardians must be at least 18 years old, of sound mind, and have no history of felony convictions. Contact our Fort Collins divorce lawyers for a consultation regarding your child’s custody status.