Does Guardianship Override Parental Rights?

If you are dealing with a situation involving adoption or custody of a child, you might have questions about whether guardianship overrides parental rights, and under what circumstances you retain certain legal rights. Many people involved in divorce, custody battles, or other matters dealing with parental rights ask, “Does temporary guardianship override parental rights?”

A Look at Guardian’s and Parental Rights

So, does guardianship override parental rights? First, let’s look at what guardianship is, and how it relates to a natural parent’s rights to get a better understanding of how it works. 


Guardianship refers to a court-appointed status granting power to supervise, oversee, and act on behalf of another person. At the court’s discretion, guardianship can authorize legal control for the upbringing of a child to be transferred to a non-parent, or to another adult with whom a child already has a relationship, like a grandparent. Guardianship also applies to adults. Courts can appoint one adult to be in charge of the physical or financial care and well-being of another adult who is mentally or physically incapacitated. Guardianship can come in one of two forms:

Guardianship over a person

This form of guardianship involves someone who is legally responsible for the medical needs, education, housing, finances, and the general well-being of an individual.

Guardianship over an estate

This form of guardianship is one in which someone is legally responsible for a person’s property, assets, or estate.

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There are many circumstances under which a guardian might be appointed. The court can appoint a guardian:

  • During the adoption process, when biological parents’ parental rights are being terminated a guardianship is given to the adoptive parents-to-be;
  • During a divorce, if the biological parents are guilty of neglect;
  • If a biological or custodial parent is found guilty of neglect and imprisonment;
  • When one or both parents are facing imprisonment; and
  • When incapacitated adults with physical or mental disabilities are unable to assume the care of someone else as part of a stipulation in a will or trust,  an alternative or “successor” guardian will be appointed.

Parental rights

Parental rights are a fundamental part of the natural relationship between a child and their parent, along with the duties and responsibilities of a parent to their child. Parents have the legal right to physical custody of their children, to protect them, control their behavior, decide where they live, provide them with food and shelter, and make decisions about their education, and religious training.

Unless parental rights are legally terminated, restricted, or guardianship is given to someone else, parental decisions are typically respected as the legal control of any child.

When Does Guardianship Override Parental Rights?

There are certain situations where the court gives a guardian rights over an individual that are similar to parental rights.

For example: 

A lawyer was hired to submit a petition seeking permission for a grandparent to obtain guardianship over their grandchild. This arrangement was sought because the biological parents had a history of violence and neglect towards their children, having been arrested for drug use and incarcerated for a short time.

In the example above, the guardianship maintained by the grandparent could override the parental rights because the parents in that example did not fulfill their personal duties and responsibilities as a parent. So, if the grandparent decided to get their grandchild vaccinated, but the parent objected, it’s very likely that the court would grant the grandparent permission to get the child vaccinated because the grandparent was legally responsible for the medical decisions regarding the grandchild. However, the guardian may still have to keep the parents informed.

It’s important to understand that in cases involving children, legal decisions are always made according to what is in the best interest of the child. As a parent, it can be incredibly frustrating when the court doesn’t rule in your favor or recognize your parental rights. The child is, after all, biologically yours. However, if the evidence demonstrates either that a parent failed to provide proper care for the child, or the parent posed a threat to the child’s well-being, courts will place a more responsible, reliable caretaker as guardian to protect the best interests of the child.

What Happens When Guardianship and Parental Rights Clash?

What happens when Guardianship and parental rights clash? What happens when Guardianship and parental visitation come into conflict, for example?

There are many situations where Guardianship and parental rights might clash. When the guardian is a non-parent, and the parents have not legally lost their parental rights, the two parties should find a way to reach an agreement. If they can’t, then the court will step in. Ultimately though, the guardian will probably make the final decision until the courts make a decision based on what is in the best interest of the child or the incapacitated adult.

Using the example above, if the grandchild was partially deaf and qualified for a cochlear implant, the grandparents might decide the procedure is in the best interest of the child even though the mother, who is also partially deaf, objects to her child undergoing cochlear implant surgery. Typically, a legal guardian has the authority to act independently of a parent’s wishes. However, a parent can petition the court to intervene and the court will decide what is in the child’s best interest. 

How to Terminate Guardianship of a Minor and Regain Parental Rights 

If you are currently a guardian of a minor child and you want to gain parental rights, or you are the parent who wants to regain parental rights regarding a child who is currently under the temporary guardianship of someone else,  you will have to meet with an attorney to discuss your situation. If you were previously found guilty of child neglect or abuse, you would need to prove to the courts that you have been rehabilitated, that you no longer pose a threat, and that returning the child to your care is in the child’s best interests.  It’s very likely that any progress would be incremental, allowing you an opportunity to prove your ability to take care of your child in smaller milestones.

Do you need legal assistance?Find the right lawyer in your area.

Parental Rights vs Guardianship

Guardianship can be temporary or permanent, depending on the situation, and in some cases, guardianship can lead to full parental rights. In certain circumstances, a parent can choose who they want to have guardianship. There are many different factors and individual circumstances which should be discussed with an attorney. 

The Bottom Line

If you are wondering “does guardianship override custody,”, you are not alone. An attorney can also help you set up finances for a disabled adult who will eventually come under the guardianship of someone else. Attorneys can advise you on how to determine who will fulfill the obligation of caring for a child after one or both parents have been deemed unfit or too incapacitated. Whatever your experience, as the guardian or the parents, understanding how guardianship and parental rights work in relation to each other can give you the information you need to make decisions about what legal steps to pursue next. 

Article by Sofi Ostymchuk

Sofi Ostymchuk is a Content Lead and Legal Writer at Lawrina. Sofi manages the content on the blog, communicates with contributors, looks for interesting topics, and creates articles in cooperation with lawyers and law experts. If you would like to be a blogger for Lawrina, you can contact Sofi for all the details via email at

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