Understanding the Difference between Custody and Guardianship

Many people confuse the concept of custody and guardianship. Both terms describe a legal relationship between a child and an adult and a court determines them. Legal guardianship means a court grants someone other than a biological parent the right to care for a minor; the principal role of a legal guardian is to perform in the child’s best interests when the child’s parents cannot do so. Legal guardians are frequently relatives such as an uncle, aunt, or grandparent. This may be due to incapacitation, death, or imprisonment for a crime. A legal guardian is not only accountable for the child’s physical wellbeing and care but is also charged with handling all meaningful choices for the child. Usually, the legal guardianship will finish when the child reaches 18 years old, or the guardian dies. On the other hand, temporary guardianship may be granted in some cases appointed for a specific period or purpose.

However, custody usually describes a parent caring for his or her child; we can find two (2) types of custody:

• Physical custody: denotes the child's daily life, such as medical care, living arrangements, and other necessities.
• Legal custody: refers to making significant decisions on the child's behalf.

Custody is different from guardianship essentially because a guardian can make legal and physical decisions for the child; nevertheless, in this article, we will examine various jurisdictions such as the United Arab Emirates (UAE), United Kingdom (UK), United States of America (US) and the Republic of India.

 

1. United Arab Emirates

A repeating question in the UAE is: can a female have similar rights as her spouse when it comes to the childhood of their children upon separation? In the UAE, custody, and guardianship are defined in Federal Law Number 28 of 2005 on Personal Status. According to Personal Status Law, custody represents bringing up, keeping, and taking care of the child without being intrusive with the right of the person’s guardian. The guardianship of the person is the care for all the minor’s affairs, including supervising, protecting, directing his life, raising, educating him and preparing him well, and agreeing to get him married.

The custody and guardianship will determine the child’s status after the divorce or father’s death. Usually, the custody is rendered to the mother; she will be the custodian and responsible for all essentials a child requires, such as feeding, schooling, bathing, etc. Article 143 of Personal Status Law lay down the general conditions for being a custodian, such as being honest, being sound of mind, being of legal age and major, capable of bringing up the child, capable of protecting and caring for the child, not being convicted of any infamous crime and keeping the child safe from dangerous infectious diseases. Furthermore, article 144 lays down that the mother must have the same religion as the child. The mother can mislay custody when she is not complying with this condition. The custody granted to the woman expires once the child reaches 11 years old(boys) and 13 years old (girls). If the spouse’s a conflict regarding custody rights, the judge can extend custody with the mother up until the male reaches the age of majority (21 years old) or the female gets married. A family lawyer from UAE can help and guide one in shedding light on child custodial rights after a couple separates in UAE.

Guardianship concerns the father, and he will be in charge of the child’s affairs, orientations, disciplines, and provide all the finances to the child. According to article 180 of Personal Status Law, the guardian must meet the following conditions: sound-minded, legal age, honest, and capable of performing the guardianship requirements. Typically, the child’s guardianship shall be awarded to the father after the agnates from the father’s side. Still, if no person is entitled to guardianship, the Court must appoint a guardian of the person from the minor’s relatives. As per article 154 of Personal Status Law, the non-custodial parent has the right to visit and receive visits by the child.

 

2. United Kingdom

Before mothers had no rights at all over the children if the marriage broke down. Because of that, the custody of children had already been the subject of parliamentary action in 1839. The Custody of Infants Act (1839) allowable a mother to request the judges for custody of her kids up to the age of seven (7), after The Infant Custody Act of 1873 permitted mothers to petition for custody or access to children below the age of sixteen (16), but not in all circumstances.

In the Children Act 1989, parental responsibility is defined as “all the rights, powers, duties, authority and responsibilities which by law a parent of a child has about the child”. Usually, parental responsibility is conferred on the mother, as she is always listed on the birth certificate. At the same time, a father will have it if: he was listed on the birth certificate, he was married to the mother at the time of birth, or both parents or the father listed parental responsibility with the Court. If both parents have parental responsibility, there is nothing in the law that states a father or a mother has the right for the child to live with them specifically.

 

The Court determines residence with a child arrangement order that will cover numerous parental reflections, counting who the kid lives with, how the kid has interaction with their parents, any prohibited steps a parent cannot take with the child (for example, leaving the country) and any specific issues that are disputed, (for example where the child goes to school). The Court will try to promote an equal responsibility for both parents; it means that both parents will have custody and the child will have two homes.

 

Concerning guardianship, in the U.K., we talk about special guardianship orders that appoint one or more people to be a kid’s special guardian. It is a private law order made under the Children Act 1989 and is intended for those children who cannot live with their birth parents. The Adoption and Children Act 2002 was announced Special Guardianship and Special Guardianship Orders. To be a child’s guardianship, the person must be over eighteen (18) years old, and he/she cannot be the parent of the child in question. The special guardian has the responsibility for day-to-day decisions relating to a child’s care and upbringing.

 

In the case, Re F & G (Discharge of Special Guardianship Order) 2021 EWCA Civ 622, a mother (M) of twin kids born in 2010 had a relationship with K during her pregnancy. The two (2) babies grew up believing him to be their father. M and K married and after they divorced in 2017. Later M had a relationship with a violent man, the Local Authority (L.A.) issued care proceedings, placing the babies with K under ICOs in April 2019. Furthermore, K was assessed as having deficient cognitive ability, and he would need considerable support. At the last hearing of the care proceedings in April 2020, all parties agreed to make a Special Guardian Order (SGO) in favor of K.

 

Another case is JB (a child) Re (sexual abuse allegations) 2021 EWCA Civ 46. E was born in 2009, and she had been removed from her mother’s (M) care for neglect and alcohol and drug abuse in August 2013 with a special guardianship order to W. In December 2017, W testified to the Local Authority that E had supposed she had been sexually injured by her mother while in her upkeep. A police officer and a social worker spoke to E at the institute and followed an ABE interview. In the times leading up to that meeting, E wrote a series of notes in which she described acts of abuse. In this situation, given the child’s very young age at the time of the unproven events, the delay between the unproven incidents and the allegations made, and the child’s history of lying and manipulative behavior, the deficiencies in the investigation were on a scale that no court could adequately make findings.

 

In the judgment Salford CC v W and Ors (2021) EWHC 61(Fam), there are five children from 4 to 11 years old- and they are under the care of a maternal aunt and her partner (Mrs. Z and Mr. Y). All parties agree that there should be an SGO. In December 2018, all five children were made the subject of child arrangements orders in favor of Mr. Y and Mrs. Z. This couple is Roman catholic, and the five children’s mother is protestant. The couple wants children to take the sacraments of initiation in the Roman catholic faith, but their mother doesn’t like it. The Special Guardianship Regulations 2005 make it plain that information regarding the children’s religious and cultural upbringing is significant and must be involved in the report placed before the Court under s 14A (8). But the Court was not content that the special guardianship regime is planned to guarantee the approach of the special guardian to the children’s religious upbringing aligns with that taken previous to the making of the SGO. MacDonald J decided that it cannot be supposed to be in any of the children’s best interests to grant to the mother the order of a forbidden step preventing Mrs. Z from authorizing the children to take the sacraments of the Roman Catholic faith, relying partly on the mother’s absence of opposition over the preceding three years.

 

3. United States of America

Regarding the custody of children following the divorce depends on the State in the USA, each of the fifty (50) federations and the District of Columbia has its law. Children’s custody after the parents’ divorce is to be decided according to the best interest of the child. When custody of children is being selected, the main options are “joint custody” and “sole custody.” Concerning Joint custody, this concept contains two parts:

• Joint legal custody: that provides for equal rights of each parent to make significant decisions regarding the child, such as health care, education, religious training, etc. with joint legal custody, the parents are focused to work together to come to joint decisions.
• Joint physical custody: which denotes the volume of time the child spends with each parent.

All states afford joint custody as a choice for raising a kid. In some states, there is a lawful presumption for joint custody, which means the law court is hypothetical to joint instruction custody unless the parties agree then or unless there is an indication that joint custody is not in the child’s best interests.

 

Also, we can find Sole custody, which means when the child spends most of his/her time with one parent, he/she is entitled to make significant decisions for the child, such as education and healthcare. The other parent is permitted to spend time with the child as a visitation. In the sole custody and visitation arrangement, a standard amount of time for the non-custodial parent and the child to spend together is every other weekend, half of significant of holidays, one weeknight evening, and several weeks in the summer.

The parents settle the majority of child custody cases by agreement in the USA. The parents come to Court, and a judge enters an order reflecting the parent’s understanding. Nevertheless, if the parents cannot agree on custody, a judge shall decide the issue, and the judge will consider many factors, such as:

• The primary caretaker of the child
• With whom the kid feels a nearer bond and which parent can better see the child's needs
• The best interests of the child.

On the other hand, in the USA legislation, we can find the concept of legal guardianship that is one of the options available to parents who are planning for the upkeep of their children in their nonappearance due to a diversity of circumstances, incarceration, or illness. It allows parents to designate a caregiver and give the caregiver certain legal rights about the care of the children. In most cases, the parent’s legal rights are not finished, and the parents play a part in their kids’ lives. Legal guardians have guardianship of the children and the authority to make choices regarding education, care, discipline, protection, etc.

 

The case Chafin vs. Chafin Number 11-1347(U.S, February 19, 2013) in the United States Supreme Court was between a couple that got the divorce (Mr. and Ms. Chafin). Ms. Chafin wanted their daughter to live with her in Scotland, and Mr. Chafin wanted her to remain in the USA with him. The case turned on the Hague Convention on the Civil Aspects of International Child Abduction. The Court concluded that despite leaving the nation, USA courts still preserved jurisdiction over Ms. Chafin. Therefore, in a decision authored by John Roberts, it was held that the American judicial system could still order her to return the child. Therefore, the Supreme Court unanimously held that “such return does not render this case moot.” The Court rejected the Eleventh Circuit’s conclusion and remanded the case back to the Eleventh Circuit to evaluate the merits of the appeal. It noted that, even if Ms. Chafin remained to disregard a contrary consequence, that alone did not exclude the case from being appealed. The result of the case could influence the Scottish courts that were simultaneously deciding the custody dispute. Finally, The Eleventh Circuit lined against Mr. Chafin. In a per curiam decision, the appeals court stated the original judgment, deferring to the district court’s conclusion that the child’s “habitual residence” was Scotland.

 

Another case was DeShaney vs. Winnebago County Dep’t of Social Services, 489 U.S. 189 (1989) was concluded by the Supreme Court of the USA on February 22, 1989. In 1980, a divorce court in Wyoming gave custody of Joshua DeShaney to his father, Randy DeShaney. A police statement of child abuse and a hospital visit in January 1983. The DSS (the Department of Social Service) entered an arrangement with the boy’s father. Five times during 1983, a DSS social worker visited the DeShaney home and noted doubt of child abuse and that the ancestor was not obeying the arrangement’s terms. Subsequent to the March 1984 visit, Randy DeShaney beat 4-year-old Joshua so severely that he fell into a life-threatening coma. He deceased Monday, November 9, 2015, at the age of 36. Randy DeShaney was then tried and convicted of child abuse.

 

4. India

Custody refers to the right given to a parent by the Court to look after the child, such as financial security, emotional, healthcare, physical, and medical development. The other parent can meet the child, and the Court will decide the child’s custody based on the child’s best interests in question. In the circumstance of a minor child, both parents have equal rights over the child after divorce. The central piece of legislation in India that regulates the Child Custody is the Guardian and Ward Act (1890), and according to the Family Court in India, there are four (4) forms of child custody:

• Physical custody of the kid: When a parent is given a decree of physical custody, it means that the kid will be under the parent's guardianship, and the other parent shall be given due consent so that they can meet with the child from time to time.
• Awarding of joint custody: In situations of joint custody, the custody rights are conferred to both the parents letting them keep the child in turns.
• Third-Party custody: the custodial right lies with neither of the biological parents. This is because the Court believes that both the parents are unable to raise a child, and letting anyone of them have the child's rights would not be helpful for the child. A third party who is related to the parents is given the right to be the guardian of the child.
• Sole custody: the absolute right regarding the custody of the child relies on one biological parent. The other parent is wholly kept away and is not given any right over the child due to the previous history of abusive behavior.

 

In India, the custody laws depend on religion; we can find:

• Custodial rights under Hindu law: section 26 of the Hindu Marriage Act (1955) addresses the education and the care of the kid only when both the parents are followers of the Hindu faith. Under this regulation, the orders can be passed at any juncture of time, superseding the pending verdict within 60 days from the day of service of the announcement. Furthermore, Section 38 of the Special Marriage Act (1954) contains provisions agreements with the custodial rights in case of the parents belonging to diverse religions. Under this Act, the orders can be passed at any juncture of time, overriding the pending verdict within 60 days from the day of service of notice. Finally, the Hindu Minority and Guardianship Act (1956), these provisions do not take into consideration third-party custodial rights. The provisions of this Act talk about the custodial rights among the birth-parents only and are subject to the fact that they are Hindu.
• Custody of child under Muslim Regulations: below the Sharia Law, the custody reposes with the mother until the kid reaches the age of seven (7), after which the father is considered the natural guardian.
• Custody of child under catholic law: The custodial rights of a child next to the separation of a Christian parent are distributed under guidelines set in the considerations under Section 41 of the Divorce Act (1869). The child's wellbeing plays a dynamic role as the parents have to prove themselves capable of educating the child. The Law court may deny custody in case it is not satisfied with the abilities of the parents.
• Custody under Parsi Law: The custody rights are achieved by the Guardians and Wards Act, 1890. The Act primarily aims to better the child and has multiple legal provisions to ensure the same.

In the case of Mausami Moitra Ganguli Vs. Jayant Ganguli, on April 4, 2003, the appellant moved a petition under section 10 and 25 of the Guardians and Wards Act (1890), recite with the provisions of the Hindu Minority and Guardianship Act (1956) before the Family Court, Allahabad looking for a declaration in her favor to be the legal guardian of her minor son, Satyajeet and a direction to the respondent to provide the custody of the kid to her. The request was hotly contested by the respondent. Fighting her claim, it was assumed that having left him when he was less than three (3) years of age, the plaintiff had no emotional bond with the child. Finally, the High Court decided that the defendant is financially sound and able to cater to all the needs of the child for his growth, and the child is not able to settle with uprooting from Allahabad and rejection of love and affection of the father. The High court decided to give custody to the father with visitation rights to the mother.

 

In the Anjali Kapoor (SMT) Vs. Rajiv Baijal, Rajiv Baijal had got married to Meghana on 16-1-1998, and they had a female child on 20-5-2001, but she did not survive to see the newborn baby. The baby was brought to the residence of Meghana’s mother, and under the Guardian and Wards Act (1890), the father of the baby filed an application before the family court reclaiming the custody and natural guardian of the child. The Court considered that the child would remain with the appellant grandmother for a long time because she is growing well, and it may not be proper diverting the environment to which the child is used to.

 

Finally, in the case Lekha V. P. Anil Kumar, the trial court, after considering the evidence of record and questioning the child, came to the decision that for the wellbeing of the kid the custody should be given to the mother and dismissed the original petition of the respondent, the father, filed under the Guardians and Wards Act holding that he is not entitled to the custody of the child. On appeal, the High Court reversed the finding of the trial court and directed to give the custody of the child to the father without interviewing the child. The High Court also permitted the respondent to take the child to the Gulf. At the end of this judgment, the custody was given to the mother, and the father will have the care of the minor child from the appellant during Onam and other important festivals and during the school vacation