What are Custody and Guardianship?

Though it is common to hear people use the terms interchangeably, custody and guardianship have different legal meanings and it may be important for you to know the difference.  The following is a brief overview of the meaning of the terms and an explanation of when each applies.   


Custody is most commonly used in cases where there is a dispute about who a child will live with.  In Arkansas, parental custody is divided into two types: "primary" and "non-custodial."  A parent with primary custody will be the parent the child lives with most of the time.  The non-custodial parent will be the one who gets visitation.  In Benton and Washington counties, visitation will typically be every other weekend with an evening in the off week for the non-custodial parent.  The term is also used in cases where a court gives two people (usually the biological parents) joint custody over a child.  Joint custody simply means that the people will split the time the child lives with each of them (this type of custody is much less common in Arkansas).  

Typically, both parents will be involved in the child's life and have access to important educational and medical information.  The "custody" aspect generally just refers to the time the child spends with each parent.  Other areas of the law address who gets primary decision making power.  


Guardianship is a much broader concept and is not limited to children.  There are several reasons a court might give a person guardianship over someone else.  However, all of the reasons for guardianship are based on the idea of incapacity.  Incapacity is basically a state in which a person is unable to make important decisions for themselves and/or to take care of themselves.  Children under the age of 18 are assumed to be incapacitated because of their minority (age) and so they will generally have a guardian (usually their parents by default).  Others may have a guardian because they have a developmental disability that renders them legally incapacitated.  Finally, guardianship is given over some people because they are incapacitated due to mental or physical difficulties that come with age such as dementia.

Guardianship is a big responsibility.  If a court gives you guardianship, you play an important role in the life of that person and have the power to make many important decisions for them.  You can make legal, educational, or medical decisions for that person.  

Zoe Naylor is a general practice attorney in Northwest Arkansas who focuses on family law.  If you would like to meet with her to discuss your case, please contact the Joyce Law Firm to schedule a consultation. 

JoyceLaw Firm was founded in 2002 by Kirk Joyce.  Each of the attorneys at the Joyce Law Firm focus in specific areas of law, including, but not limited to: personal injury, immigration, criminal defense, family law, and business law.  Contact the Joyce Law Firm today at 479-442-5577.  More about Joyce Law Firm


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