Introduction
In the context of family law, the terms “guardianship” and “parental rights” are often used interchangeably. However, they have distinct meanings and implications under the North Dakota Century Code. This article will explore the differences between these two concepts, focusing on their definitions, legal implications, and how they are handled in divorce proceedings in North Dakota.
Guardianship
Definition and Legal Implications
Guardianship refers to the legal responsibility given to a person (the guardian) to take care of someone who is unable to take care of themselves, such as a minor or an incapacitated adult. In North Dakota, a guardian is appointed by the court and has the duty to make decisions on behalf of the ward (the person under guardianship) concerning their personal, financial, and medical affairs.
The North Dakota Century Code 30.1-27-01 defines a guardian as a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment. The guardian has the legal authority to make decisions on behalf of the ward, including decisions about education, health care, and personal care.
Guardianship in Divorce Proceedings
In divorce proceedings, a guardian ad litem may be appointed to represent the best interests of the child. According to North Dakota Rules of Court, Rule 8.6, a guardian ad litem has the responsibility to work with a parenting investigator, interview and observe the child, advise the child and the child’s parents of the role and responsibilities of the guardian ad litem, interview potential witnesses, and participate in meetings impacting the life of the child.
Parental Rights
Definition and Legal Implications
Parental rights, on the other hand, refer to the legal rights and responsibilities that parents have concerning their biological or adopted children. North Dakota Century Code 14-09-32 outlines the rights and responsibilities of each parent, which include the right to access and obtain copies of the child’s records, attend educational conferences, have reasonable access to the child, and the duty to inform the other parent of a serious accident or illness of the child.
Parental Rights in Divorce Proceedings
In divorce proceedings, the court issues an order that deals with parenting rights and responsibilities of a child. As per North Dakota Century Code 14-09-29, the court awards the parental rights and responsibilities concerning the child to a person, agency, organization, or institution that will, in the opinion of the court, promote the best interests and welfare of the child. There is no presumption as to whom will better promote the best interests and welfare of the child between the mother and father.
Differences between Guardianship and Parental Rights
The main difference between guardianship and parental rights lies in the relationship between the guardian or parent and the child, and the scope of their responsibilities. A guardian is appointed by the court and has the responsibility to make decisions on behalf of the ward, who may not necessarily be their biological or adopted child. On the other hand, parental rights are inherent to biological or adoptive parents and encompass a wide range of rights and responsibilities concerning their child.
In divorce proceedings, a guardian ad litem may be appointed to represent the best interests of the child, while parental rights are determined by the court based on the best interests and welfare of the child. The court may also terminate parental rights in certain circumstances, such as in cases of abuse or neglect, as outlined in North Dakota Century Code 14-15-19.
In conclusion, while both guardianship and parental rights involve legal responsibilities towards a child, they differ in their nature, scope, and how they are established and exercised under North Dakota law.