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Understanding Guardianship versus Custody

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…What Every Parent, Relative, or Caregiver Should Know in Trinidad and Tobago.

When it comes to taking care of a child under 18 years of age, two legal terms often come up: guardianship and custody. Although these terms may sound similar, they are significantly different. Both are used to help protect and care for children—whether temporarily or permanently. They are governed primarily by the Family Law (Guardianship of Minors, Domicile and Maintenance) Act, Chapter 46:08 (“the FLA”).

What is Guardianship?

Guardianship gives someone the legal authority to make important decisions about a child’s life, such as:

  • Where they go to school
  • What religion they follow
  • Medical care
  • Financial matters
  • Travel
  • Their general well-being

Key Facts:

  • Both parents are usually guardians unless a court says otherwise. (Under Section 6(1) of the FLA.)
  • If a child is born outside of marriage, only the mother is the guardian, unless the father legally proves paternity.
  • A guardian can be appointed in a parent’s will or through the High Court.
  • If one parent dies, the other becomes the sole guardian, unless someone else is named in a will, in which case they may share guardianship.

When to Apply for Guardianship:

  • If the child’s parents are deceased, in prison, ill, unable to care for the child or missing.
  • If a relative or caregiver needs the legal right to make decisions like school enrolment or travel abroad.

What is Custody?

Custody relates to the day-to-day care of a child and where the child lives. It includes basic parenting responsibilities like:

  • Feeding and clothing the child
  • Making everyday decisions
  • Providing a safe home

There are two types of custody:

  • Legal Custody: The right to make major decisions for the child (e.g., school, health, religion).
    Legal Custody: This is granted to only one parent under the FLA but the other parent may retain his/her parental rights under Section 18 of the FLA so that he/she can still participate in making decisions for the child. However, in matrimonial proceedings (proceedings between married persons), the High Court may grant Joint Custody to both parents so that both parents retain the right to make joint decisions for the child or Sole Custody to one parent who will be the main decision maker for the child. Where joint custody is granted, care and control of the child is usually granted to one parent, that is, the parent with whom the child will live, and access (visitation rights) is granted to the other parent. Where Sole Custody is granted, the child usually resides with that parent and the other parent is granted access.
  • De Facto Custody: Where the individual currently takes care of the child, even if they do not have legal authority. currently take care of the child, even if you don’t have legal authority.

When to Apply for Custody:

  • During a separation or divorce to settle where the child should live.
  • When there are conflicts between parents or issues of neglect or abuse or abandonment.
  • Parents disagree over the child’s living arrangements or upbringing.
  • One parent attempts to alienate the child or the child’s affection from the other.
  • If someone is caring for a child without legal permission.

What Will the Court Look At?

Whether it’s guardianship or custody, the Court always puts the child’s best interests (welfare) first. This includes:

  • The child’s emotional and physical well-being.
  • The existing care arrangement and stability.
  • The wishes and behaviour of the parents or caregivers.
  • Whether changing the current situation could be harmful to the child.

Courts can change (vary) orders if family situations change and the current arrangement no longer works well for the child.

Where Do You Apply?

  • Guardianship: Must be applied for at the High Court.
  • Custody: Can be applied for at the District (Magistrates’) Court or Family High Court, depending on the case.

When Should You Apply?

Guardianship can be considered if:

  • You are a relative of a child whose parents are deceased or unavailable
  • You are named in a parent’s Will.
  • A parent is temporarily unable to care for the child.

Custody can be considered if:

  • You are a parent seeking to formalize living or decision-making arrangements.
  • You are a third party currently caring for a child with no legal authority.
  • There are unresolved parenting conflicts affecting the child’s well-being.

Conclusion: A Child-Focused Approach

Whether you are a parent, grandparent, trusted family friend or a concerned party, choosing between guardianship and custody is a big decision with long-term implications for both the child and the caregiver. The Court carefully evaluates each case, considering factors such as the child’s emotional and physical well-being, the family dynamic, and long-term stability.

If your situation changes, you can always ask the Court to review or change an order to better meet the child’s needs.

Submitted by:

Marilyn Joseph
Legal Officer
Civil Legal Department 
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email: [email protected]
Website: www.laaa.org.tt

This article is not legal advice. Consult an Attorney for legal issues.