What is the difference between child custody vs. guardianship?

Guardianship and custody are often incorrectly used interchangeably, despite the fact that they are not the same thing. If you’re a parent in Texas, or a person who is seeking child custody vs. guardianship of a child, here’s what you need to know about the distinction between the two terms.

Texas Conservatorship Laws

The first thing to take note of is that child custody is referred to as child conservatorship in the state of Texas. Conservatorship is a family law term in Texas, found in Texas Family Code Title 5. Typically, a conservator is a parent of the child, although sometimes the court may appoint a non-parent to be a child’s conservator. There may be more than one conservator for a single child, as is often the case in instances of parental separation or divorce.

Texas Guardianship Laws

Unlike conservatorship—or custody—laws in Texas, guardianship laws have nothing to do with Texas family code or family law. Instead, guardianship is covered by Texas probate law.

A person can only become the guardian of a ‘ward’ who meets one of the following criteria listed below.

• Is a minor
• Is an incapacitated (mentally of physically) adult who is unable to care for oneself
• Is a person who must have a guardian to receive funds from a governmental source

 

According to Texas Probate Code Section 602, a guardian is appointed to “promote and protect the wellbeing of the person.”

Getting Divorced: Conservatorship or guardianship?

During a divorce, the laws that apply to a custody determination are conservatorship laws. Guardianship typically only applies to children when the rights of the child’s parents have been revoked or terminated.

As such, your Texas divorce lawyer will work with you to help you and your spouse come to a conservatorship agreement that suits you both and is in the best interest of your child(ren). Common custody arrangements include joint managing conservatorship and sole managing conservatorship.

If you cannot reach an agreement, then the court will make the determination for you. An attorney can help you to demonstrate to the court that you are the best choice for a sole conservatorship.

Call a Texas Family Law Attorney Today

For more information about Texas family law and conservatorship during a divorce, set up a consultation with The Texas Divorce Lawyer. Call 214-265-7630 or fill out this contact form.