Legal Custodians Defined: Functions and Obligations

What Is a Legal Custodian?

A legal custodian is an individual or organization that maintains custody over the relevant records. In most cases, custody is synonymous with physical possession, and Food & Drug Act Inspections Hughes says that’s what’s meant by the term. A legal custodian does not necessarily have to be the person or business that actually created the records in question. Rather, it is anyone who possesses the records, in the context of a given legal matter.
The relevant body of law, the Official Rules Of Civil Procedure (Rules 37, 45, and 63), discusses the legal custodian in part C of Rule 34 – which refers to testimonial requirements – as an organization or individual that has control over the production of evidence. The legal custodian is held responsible by a court if that information is not made available for possible inspection during civil proceedings . There are cases where an entity has the authority over another, allowing the more powerful body to bind the less powerful party to an action. Examples of legal custodians include employees at the target entity who hold positions that warrant legal custodianship.
In general, the definition of a legal custodian in civil court proceedings is intentional vague. This is intentionally broader than other legal definitions to enforce the spirit of the intended legislation, which is the act of protecting information potentially used in the prosecution of a criminal case. It may be worthwhile to consider the example of a university – many academic institutes may use custodial agreements (or a custodial care agreement) to maintain custody over funding or investments.

Legal Custodian: Functions and Obligations

A legal custodian is an individual who possesses the physical custody of another’s tangible personal property on behalf of another. The role is usually exercised by a third party, either through agreement or appointment. A legal custodian may be a family member, an attorney, or another individual appointed by a court, and the overarching concern for all is the maintenance and preservation of the property in their care.
Specific roles and responsibilities of a legal custodian include:

Maintain contact with the court or the individual and reporting any changes regarding the property.
Providing an inventory of the property in their possession to the individual or the court.
Documenting all transactions regarding the handling of the property.
If they are the trustee of a trust, acting in the best interests of the trust and its beneficiaries.
Maintaining accurate and detailed records of all transactions.
Keeping the property safe, secure, and in good condition for its return to the lawful owner or by direction from a court order.
Complying with the law, applicable regulations, and more.

Failure to fulfill these roles and responsibilities can have serious consequences in civil or criminal court proceedings.

Legal Custodian: Taking Many Forms

Going beyond their primary application in family law, legal custodians have important roles to play in various contexts. For instance, a legal custodian may be appointed for minor children during a divorce or separation. This aspect of the legal custodian’s role is more commonly referred to as "guardianship." A guardian of a minor child is tasked with ensuring that the child is cared for and raised in a safe and happy environment. The guardian needs to make appropriate decisions on behalf of the child including, for example, decisions regarding where the child goes to school or what type of medical treatment should be rendered.
In addition, legal custodians may be appointed in financial contexts. For appointment in these contexts, legal custodians may be referred to as "trustees." In many cases, a trust fund company will be appointed as a trustee. For example, a legal custodian may be appointed for an infant who has received a large sums of money as compensation for personal injury suffered in an accident. The court would want to ensure that the funds are carefully managed until the child reaches adulthood. For these types of appointments, the legal custodian is entitled to request a court order to permit the legal custodian to receive compensation for its management of the funds.
A legal custodian may also be appointed in property disputes such as land disputes. In these cases, a legal custodian is deemed necessary to protect the property until ownership of the property can be established.

Becoming a Legal Custodian

To become a legal custodian, an individual typically needs to be a custodian of such records for an extended period of time in order to obtain the presumption of correct business practices. This means that their examination of the contents of the records of the party will be held to be true and admissible in court, and that there is a likelihood that the documents have been maintained properly.
"A document custodian is someone who is familiar with the business records in question." A legal custodian also may be personally familiar with the information contained in the various records.
A legal custodian frequently is a records specialist or other similarly related position. The custodian must maintain familiarity with recordkeeping practices and understand what documents are relied upon in the ordinary course of business. An example is authorizing payments for certain transactions up to certain dollar amounts.
The custodian of records must be a resident of Connecticut, and is someone who is "in control of the recordkeeping function at a business." For a custodian of medical records, any person "practicing medicine" in Connecticut in connection with the medical practice that is the subject of the subpoena or a partner, officer, or custodian of records of that medical practice; or any employee of that medical practice who has responsibility for the production of such records and knowledge of the facts requisite to their identification.
For a custodian of educational records, the custodian can be any individual authorized to access such records, including a principal or teacher; any official or staff member of a school organization; or volunteer or other person assigned to perform a specific clerical or administrative task to assist in the performance thereof.
For a custodian of tax records, the custodian can be any official or employee of a municipality or taxing district who is responsible for the custody of such documents.
The request for production of documents may be served on the custodian either in hand or by mail. The subpoena must be accompanied by a Notice to Produce (Notice) which must identify the business or records custodian and notify that person of their right to seek a protective order that provides for production at the courthouse or otherwise outside of the judicial matter.
If necessary, a Notice may be issued by the court on the production of records, setting forth the subpoena to which it relates and identifying a date by which the records are to be produced, to be no earlier than 14 days after the date of the Notice. Any requests for additional time to respond should be directed to the proposed or appointed custodian of the records.
Within a week of the conclusion of the judicial proceedings, the lawyer or law firm seeking the production must return the documents or, alternatively, make them available to the Court in a sealed envelope with an appropriate notation.
Any custodian of records may destroy documents over 7 years old as of the date of the request for production of records.
Any custodian of tax records may destroy tax returns and documents related to tax returns after 4 years have passed from the time that the tax may be collected.
Because a subpoena is a mandate of complying with the terms in the requested production, failure to comply may make you liable for contempt and other options for enforcement, including request for monetary costs and expenses incurred in obtaining compliance.

Legal Custodian Versus Guardian: The Distinction

While a legal custodian is often confused with a legal guardian, they are not one and the same. In fact, a legal custody situation is meant to operate in contradistinction to guardianship. A guardian typically has a relationship with the child that involves the responsibilities of a parent, whereas a legally appointed custodian may or may not have a relationship with the child. The key difference between a legal custodian and a guardian is that the legal custodian is someone whom the court orders to make decisions for a child with the hope that the biological parents will remain as decision makers at the conclusion of the process. A guardian is appointed to act as a substitute parent.
In basic terms , a judgment of legal custody is given to a third party who is not the biological parent. Thus, in a standard legal custody setting, the biological parents do not have a say in the decisions made for the child, other than to seek re-involvement in legal custody court hearings when their relationship with the child improves. Factors such as the inability of the biological parents to care for the child, substance abuse issues and domestic violence are just some of the circumstances that might prompt the legal custody appointment.

Legal Custodian Rights

The legal custodian – whether that be of a child or of money or other property – has certain rights. When it comes to be the legal custodian of a child, there are rights that sort of go and hand-in-hand with the duties of being a child’s parent. However, when it comes to property, it’s easy to see how the rights of a custodian may be somewhat different than what we might typically think of as a "parent’s rights" in the child context.
In terms of a child, the legal custodian has a right to determine where a child goes to school, to discipline a child (within reason, of course), and to make decisions for the child. Custodial parents also have compulsory education obligations until a child is 16. When it comes to custody and parenting time, a legal custodian can enforce the time with a child. If a child refuses to leave with the legal custodian for parenting time with the non-custodial parent, it is the legal custodian’s responsibility and right to ensure the child does what he or she is legally obligated to do by showing up to spend parenting time with the legal custodian. It is within the legal custodian’s discretion to take the child back home to "punish" that child for not wanting to listen, but, the legal custodian cannot physically force the child to come with them. At that time, the legal custodian should then seek the help of law enforcement officers. If there is a legit safety concern, the police officer will agree that safety is at issue and record that the non-custodial parent or child is not complying with the parenting time order.
When it comes to a parent’s obligation to provide for the child’s needs, legal custodians have the right to receive child support from a non-custodial parent. This isn’t a gift. This is an obligation. If and when the child support is not paid, the legal custodian has the right to ask the Court for help overcoming the other parent’s issues. Again, in the situation where a legal custodian knows a child is with the other parent, the legal custodian has the right and obligation to notify the Court or Friend of the Court that the other parent is violating the Order so the Court can take corrective action.
In terms of the legal custodian of property, or someone’s estate, the legal custodian has certain rights relevant to the estate plan. The legal custodian of estate is sometimes referred to as a successor trustee. A legal custodian has a right to collect information related to the estate which will inform them what is available to a Party. Ultimately, the legal custodian wants to gather everything necessary to distribute the assets appropriately according to the Will / Testamentary Language. A legal custodian may also have a right to utilize estate funds for the support of individuals named in the Will.

Legal Custodian Obstacles to Consider

The ethical and legal challenges facing a legal custodian can be considerable. It is not infrequent for a legal custodian to be put to the test during a legal matter. For example, there is always the risk of inadvertent disclosure, or even intentional sharing of privileged material made available for review by the legal custodian. When the latter occurs, it is usually the case that the interface with a party to the matter must be severed, given that mutual trust has been destroyed.
It is also common for a legal custodian to encounter allegations or assertions of partiality or preferential treatment on the part of the counsel requiring the outsourcing of the information and document management to external resources. The presence of such alleged conflict of interest can be detrimental to morale and can lead to weaknesses in the team cohesion necessary to implement the information and management aspect of the legal matter.
Legal custodians also have to bear in mind that their own workplace decision making , including their own litigators for client matters, could become the subject of a potential or actual review or audit during the legal matter. This can create inherent limitations as to the approach that a custodian can take to their own legal matters and broader capacity related to the legal matter they are involved in.
Finally, regardless of the vendor selected, the pricing and management of the resources can be problematic and can directly affect the ability of the legal custodian to deliver the necessary services in the case.