How Will Guardianship Be Impacted by My Divorce?

Divorce and child custody are incredibly stressful and complicated issues. The potential legal issues become even more tangled when you are the legal guardian of the children in question. Many people are unaware of the differences between legal guardianship, adoption, and child custody, which are all subject to specific laws and regulations. It is important to be informed about the rights and responsibilities of a legal guardian, how a legal guardianship is granted, and how a legal guardianship is terminated, before making any major decisions that may impact your guardianship. You may need help navigating the complexities of divorce in Cumming, Georgia, and an experienced family law attorney can help you understand your options related to guardianship and divorce in Georgia.


A legal guardianship is a relationship recognized by the court in which one person is responsible for the care of another person, usually a minor child. The person who is receiving the care is known as a “ward.” A legal guardianship may occasionally be formed on behalf of an adult with a mental or physical disability, but it almost always refers to a non-parent adult who is responsible for the care of a child whose parents are no longer capable of raising them. Any adult (usually ages 18 or 21 and over) who has the means to provide for a child can petition to be made their legal guardian. In addition to the long-term “permanent guardianship,” the court may also determine a guardian in an emergency situation or on a non-emergency temporary basis.


In order to establish legal guardianship, you must file a petition with the court and pay a filing fee. Once the petition to obtain guardianship has been received, the court will consider whether or not your petition is in the best interests of the child. The court’s research may include background checks, interviews, and more to determine if the child will be best-served under your care.


There are many practical similarities between guardianship and adoption, especially in day to day life. A legal guardian has the right to make legal decisions for the child and can act as their parent in most situations. However, a legal guardianship does not affect the relationship of a child and their biological parents. It is less permanent than adoption, which permanently changes a child’s legal relationship to their biological parents. In an adoption, the biological parents surrender all legal rights to the child, making the adoptive parents the child’s only parents in the eyes of the law. The impermanence of the guardianship makes it more likely that divorce could change the situation. Because the biological parents retain legal rights in a legal guardianship, a major life change like divorce may cause a biological parent to question whether your care remains ideal for their child.


When the court determines custody of a child, it outlines the responsibilities a child’s parents have for their care. Legal guardianship puts many of the same responsibilities on an adult who is not one of the child’s parents. If a parent is currently in custody of a child, it is unlikely that the court will grant a legal guardianship. In all issues regarding child custody, the court is focused on the best interests of the child; the court will generally only consider it in the best interests of the child to be placed with a legal guardian if neither biological parent can provide care. A newly formed legal guardianship may also cause the court to revisit the original custody agreement; for example, if a father was previously granted visitation rights by the court and the mother received physical custody, in the case that the mother is incapacitated, the court may reconsider the father’s visitation.


In the case of a permanent guardianship, the guardianship will usually end when the child reaches the age of 18 or if the judge determines that the guardianship is no longer necessary. However, a legal guardianship occurs with the consent of the biological parents, which means that a biological parent may petition the court to end the guardianship. Depending on the relationship between you and the biological parents, your divorce may cause one or both parents to withdraw their consent for the guardianship. Before making any decisions, seek the advice of an experienced lawyer in your area to make sure you’re prepared for how your divorce may affect your guardianship.