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Difference
between custody and guardianship Download
this document Guardianship and custody are closely related aspects of a child's life. Guardianship is the less popular of these two terms. When the parents of children separate, they commonly fight for custody of the children concerned as opposed to the guardianship rights over them. It is only when certain unforeseen issues arise like the need to apply for a passport or to sign for medical surgery for the children that most parents realize the difference between the two aspects. Guardianship is the capacity of a person to administer property and assets of a minor, to look after his financial affairs, to conclude contracts on the minor's behalf and assist in performing other legal acts. Custody refers to the physical care and control of the child that is physical possession of the minor, to live with and to assist him in his daily life. The guardian of a child is entitled to enter into legal transactions like buying, selling and investing property in the interests of the minor. On the other hand the custodian decides on the child's education, religion, accommodation, sports, recreation, entertainment and all other matters affecting the child's daily living. For children born in wedlock, the father is the guardian and exercises these rights in consultation with the mother. Upon separation or divorce where the court has not decided on the issue of guardianship, the father still remains guardian of the children. If the mother is awarded custody of the children, when it comes to performing legal acts, she still has to seek consent of the guardian of the children namely their father. For children born out of wedlock, the mother is both the custodian and guardian of the children.This gives her the right to perform legal acts on behalf of the children concerned. In reality, it is very difficult for parents to continue consulting each other over guardianship issues after divorce because of various factors like migration. "Sole guardianship" can be awarded to one parent if it is in the best interests of the child and the parent will exercise the rights without consulting the other parent. We therefore urge all parents to ensure that before migrating, they communicate and transfer guardianship rights to the custodian parent so that they can be able to exercise sole guardianship in their absence. A sole guardian can appoint another person in his/her will to be guardian of the concerned child to avoid problems after their death. We also urge guardians to appoint capable persons to be guardians of their children when they pass away. Visit the Justice for Children Trust fact sheet Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.
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