What is the Difference Between Guardianship and Custody in Boise?

Gavel on sound block and small family member figurines on judge's table in courtroom

In simple terms, legal guardianship is when the court appoints someone other than the biological parent the right to care for a minor. Custody, on the other hand, usually describes a parent caring for their own child.

Guardianship can also be granted over an adult if they do not have the capacity to care for themselves or to make specific decisions, such as those regarding their finances.

Seeking custody or guardianship is a complex and emotional process, and understanding the laws and regulations surrounding family law issues can be difficult. The best way of ensuring that the process runs smoothly and that the outcome supports you and your family is to have representation from an experienced attorney.

At Idaho Divorce Law Firm, we are committed to helping families in Idaho navigate legal matters. We will listen to your goals and work with you to secure an outcome that best serves the interests of your children while also considering your needs.

We offer a consultation so that you can seek clear legal advice and gain clarity on your next steps before committing to representation.

Speak to a dedicated Boise family law attorney today by calling 208-314-3302.

What Is Custody?

Custody is a legal relationship between a child and a child’s parents, usually their biological parents. However, custody arrangements could also be in place between a child and their adoptive parents. A child custody arrangement sets legal parameters for who cares for the child and when and who has the right to make important decisions on their child’s behalf, such as those involving medical care and religion.

Child custody in Idaho can take many forms. Usually, some form of joint custody arrangement is granted, which keeps both parents involved in their child’s life. However, sole custody can also be awarded in cases where one parent poses a risk to their child’s wellbeing.

Child custody matters are often highly emotional, and it is essential that a decision is reached that serves your child’s best interest. A family law attorney can help you and your ex-spouse to come to an agreement where possible. If your case does go to court, then they will also be prepared to advocate fiercely on your behalf.

There are two forms of custody under Idaho law; they are physical custody and legal custody.

Physical Custody

Physical custody refers to the day-to-day care of a child and includes living arrangements and a parenting schedule. It is common for one parent to be granted primary custody, which means that the child’s primary residence will be with them. The other parent will then be granted visitation rights.

Sole physical custody is only granted in cases where the other parent poses a risk to the child’s wellbeing. For example, perhaps there is a history of abuse or drug misuse. If you have concerns over your child’s well-being with the other parent, then it is essential you have the support of a family law attorney who can help you to evidence your claims to a Judge.

Legal Custody

Legal custody refers to the right to make important decisions in your child’s life. For example, where will they go to school, and will they practice a religion? Legal custody could be granted to one parent, or parents may be expected to make agreements together.

A custody case is rarely straightforward. However, an attorney can help the process to move forward so that you can begin to transition to your new life.

What Is Guardianship of a Child?

A guardianship can be set up for someone who lacks the mental or physical capacity to take care of themselves or make important decisions. Legal guardians are under a legal obligation to act in the best interests of the person they have guardianship for.

Children are considered to lack the capacity to make important decisions, so guardianship could be necessary for a minor whose parents are unable to care for them. Reasons could include incarceration, incapacitation, addiction, or death. It is common for a legal guardian of a child to be a relative such as a grandparent or an aunt or uncle. However, the guardian does not legally have to be a relative.

Guardianship is different from custody because although they have the right to make physical and legal decisions for the child, the child’s biological parents are still considered the legal parents. On the other hand, if a child is adopted, the parents lose parental rights and responsibilities toward their children.

Applying for guardianship is complex, and you should seek the advice of an experienced Boise guardianship attorney.

Guardianship of Adults

Guardianships are sometimes appropriate for adults if they are considered to be unable to manage some aspects of their life themselves; this is usually because of disability, illness, or old age. Guardians of vulnerable adults must act in their best interests and ensure that they are safe and cared for.

Any person who has an interest in the adult or the local authority can apply to be a guardian. An interested person could be a relative, friend, or professional. Although parents cannot be guardians of their children, they may be granted guardianship of their adult children if they are incapacitated. When appointing a guardian, the court must first give preference to the parents.

Guardianship of an adult may be shared between parties or given to one person. Either way, it should be in the least restrictive form possible. For example, if an adult can manage their day-to-day care but struggles with their finances, then they should retain the right to manage their daily care while the court appoints someone to manage their finances on their behalf.

What is the Difference Between Guardianship and Custody in Boise?

Custody usually refers to an arrangement between parents and their children, while a guardian of a child is usually a court-appointed adult who is granted rights and responsibilities towards a child when their parents are unable to care for them.

There are also some other important differences to understand, such as:


When a court orders a custody order, it is legally binding and must be adhered to. However, parents can apply for a modification to change the terms of the custody order if there has been a substantial change in circumstances. However, all decisions must still be made based on the child’s best interests.

On the other hand, guardianships last much longer. A guardian is usually expected to remain in their role either until the child reaches 18 or until the end of their life. Even if a guardianship is granted on an emergency basis, it could still be long-lasting.

Court Appointment

A custody order is usually necessary when parents divorce or are no longer together. Although the Judge will get the final say, parents can express their wishes and make recommendations. So long as their recommendations are in the child’s best interests, the Judge will usually grant parents what they want. In addition, custody can only be granted over children and is not used for cases involving adults.

On the other hand, the court can grant guardianship to both children and adults. The court also has the final say in guardianship matters, but parents may also choose a guardian for their child. For example, a parent may name a guardian in their will. However, a parent cannot transfer custodial rights without a court process.

Proving Necessity

A custody arrangement is necessary to ensure that a child is cared for. On the other hand, to apply for guardianship, you are required to prove why it is necessary.

If you are applying for guardianship of a child, you will need to prove that:

  • The parents are unable to adequately care for the child.
  • The home where the child currently lives is unsuitable.
  • The parents have abused, neglected, or abandoned the child, or they are deceased.
  • Any other relevant factors.

A Guardian is Required to Complete an Online Course

Unlike parents, a potential guardian is required to complete an online course developed by the Idaho Supreme Court Guardianship/Conservatorship Committee. The course provides information about the role and the responsibilities involved.

Similarities Between Guardianship and Custody

Whether you file for guardianship or custody of a child will depend on your specific circumstances. Although there are many differences, they are also quite similar. Similarities include:

  • Both are determined by the court.
  • Both are legal relationships with the child.
  • Both require filing the necessary paperwork with the court.
  • Both are based on the best interests of the child.
  • The day-to-day responsibilities are similar such as ensuring that a child’s basic needs are met, such as their education, food, medical care, and shelter.
  • Both will benefit from the support and guidance of an experienced family law attorney.

Guardianship Vs. Conservatorship in Boise, ID

If you are considering guardianship over a child, then it may also be helpful to understand conservatorship. Guardianship and conservatorship are similar, but they involve different legal responsibilities.

A guardian has legal responsibilities for a person’s emotional and physical needs, such as where they live, where they go to school, and what medical care they receive.

On the other hand, a conservator manages a person’s finances. A child may need a conservator if they have received money through inheritance, life insurance policy, or legal settlement.

It is possible for the appointed guardian of a child to also be granted conservatorship, or it could be a separate person.

Who Can Petition to be a Guardian of a Child?

Custody is granted to the parents or adoptive parents of a child. On the other hand, a guardian or conservator is not usually a person’s parents.

Any person can apply to have guardianship of a child if a custody order is not in place. In most cases, a family member or close friend takes on the role.

A potential guardian or conservator of a child must meet some legal requirements in order to be successful. They include:

  • A genuine interest in the child’s well-being.
  • No previous convictions involving child abuse.
  • No child protection orders have been filed against them.
  • Not a biological or adoptive parent of the child. (Parents cannot be guardians of their children. However, once their child becomes an adult, if they require ongoing care because of an incapacity, a parent may be considered for guardianship.)

Contact Idaho Divorce Law Firm Today

Securing guardianship or custody both come with challenges. It is essential that the right decisions are made that support the best interest of the child or protected person.

At Idaho Divorce Law Firm, we are dedicated to helping families in Idaho navigate family law matters. If you are fighting for custody of your children, we will help minimize conflict as much as possible and will help you and your ex-spouse reach a decision that protects you and your children. If an agreement is not possible, we will be prepared to fight for you in court.

On the other hand, if you are concerned that a child is in danger and want help with the guardianship process, we can help you take action discreetly and swiftly.

We understand how emotionally draining these cases can be, but we will simplify the process by educating you about your rights and supporting you in making decisions from a place of clarity.

We have helped countless families secure positive outcomes, which is why we have been voted one of the best divorce law firms in Boise, Nampa, and Meridian by expertise.com.

Arrange a consultation today at 208-314-3302.