What’s the Difference Between Guardianship and Custody?

Legal terms can easily be conflated with each other. If you’ve never worked in the legal industry, guardianship and custody sound a lot alike. Both involve taking on responsibility for a person (usually minor children). However, they are two separate concepts.

When you create an estate plan, James Bart Leonardi, LLC recommends nominating a guardian for your minor children. Here’s the difference between guardianship and custody, and what it means for your estate plan.


Custody is a family law term. It encompasses physical and legal custody. Both biological and adoptive parents are presumed entitled to custody, unless one or both parents are deemed unfit.

Child custody arrangements are usually sought when parents no longer live together. The court may award physical and/or legal custody in the child’s best interest. For example, the father may get sole physical custody, but share legal custody (decision-making ability) with the mother. The parents may share equal physical and legal custody, alternating weeks, every other weekend or other arrangements.

If both parents are alive but unfit, a legal guardian may be appointed. When someone assumes legal guardianship over a minor child, they will typically have physical and legal custody—but not always. Our firm can help you understand how your estate plan affects any child custody issues.


Biological parents are a child’s legal guardians by default. Parents may designate a legal guardian to care for their child, in the event they both pass away or are incapacitated. A guardian is appointed by the probate court and they assume physical and/or legal custody over the child. They are responsible for day-to-day care as well as financial, legal, medical, educational and religious decisions.

When writing a will, you may nomiate a guardian for your minor child. Usually, parents will decide on one or more prospective guardians together. With those adults’ approval, you can nominate them as guardians in your will. Having “backup” guardians ensures that if your first choice is no longer available, the children will still have a trusted caretaker. The probate court gives great deference to the parents’ choice of guardian, but they still have to be appointed by the court.

If the parents are separated and only one parent dies, the minor children will usually go to the other biological parent. We can explain potential scenarios based on your current parenting arrangement, and make suggestions to achieve your goals.

Estate planning, guardianship and custody issues can be complex. Working with a trusted estate planning firm like James Bart Leonardi, LLC ensures that your estate plan will meet your needs—and your minor child’s needs. Call us today for a consultation.

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