A perfect legal storm: When ‘custody’ and ‘guardianship’ clash

What does it mean to have custody of a child as opposed to serving as guardian for that child when he or she becomes an adult? On the face of it, this might seem like a relatively simple question to answer.

In Minnesota, these two legal terms represent what amount to competing fronts. And, just as colliding hot and cold fronts make for severe weather, these competing legal fronts create rough seas for families of divorce because of certain generalities in the law.

For example, if parents of minor children divorce, issues of legal and physical child custody often arise. Resolving these matters in ways that reflect the desires of each parent and protect individual rights can be difficult. And regardless of the outcome of those efforts, the authority parents exercise over their children typically ends when the youngsters reach the age of maturity – 18.

But what happens if the child lacks the capacity to take on adult responsibilities? This is where the clash exists. At the age of adulthood, family law statutes effectively go silent on the question of custody. If the child needs someone to continue to make decisions on his or her behalf, Minnesota probate statutes take over, allowing a parent, or any other interested person, to petition for guardianship.

Many observers argue that, logically, if joint custody was the order in place when the disabled child was a minor, some form of similar joint parental rights should continue in the context of guardianship. But for a long time, the legal system has upheld the separate regimes, leaving the courts in the position of trying to sort out some semblance of middle ground when unique circumstances demand it.

In 2005, the legislature did amend child support law to expand the definition of “child” to allow for adults incapable of self-support, regardless of age. However, many references in the law still specify that court determinations on custody matters remain limited to “minor” children, leaving questions.

The upshot is that parents can still find themselves facing dilemmas in exercising their rights and meeting the care needs of children transitioning from legal childhood to legal adulthood. This reinforces the value of working with skilled legal counsel committed to strong client advocacy.

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