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Guardianship vs Custody, What’s the Difference?

  • By: Thomas Scifres
  • Published: January 7, 2020
Guardianship vs Custody, What’s the Difference?

In today’s world, it is increasingly common for kids to be raised other than biological parents. Sometimes this is done informally. This is most common when parents get sick, become incarcerated, cope with addiction issues, or simply are having a difficult time serving as parents. They may reach out to their own parents, other relatives, or trusted friends to take their kids in. In many cases, no one seeks legal advice or turns to the court system in the process. It just happens. The kids pack their clothes and personal items and sleep at someone else’s place. Nothing else really changes other than where they sleep at night. This may work without incident, but it can be problematic when medical treatment, school issues, or legal problems arise with these children. The biological parents may be the only ones to deal legally with these issues, and the health care professionals, school administrators and legal authorities may be restricted from talking with you. If the parents are no longer in the picture, it leaves all involved parties with a dilemma.

Formal Legal Action-Guardianship vs Custody

Whenever a third party intervenes to be the primary authority-figure in the life of a child, we recommend that formal legal action be taken at the outset. That way, these third parties will be vested with the legal authority to deal with medical, educational, and legal issues the moment they arise. Under Indiana law, there are multiple ways to convey legal rights to third parties; however, there are two broad, primary ways that are most common-guardianship and third-party custody. Some people use the terms third-party custodianship and guardianship interchangeably. This is not accurate. These are very similar concepts in their intended result in that they convey very broad powers like a parent would have. However, guardianship comes with very specific duties and reporting requirements that are not statutorily required of custodians.

The final determination between custody and guardianship, is not so much a choice to be made by the third party. Rather, it is more a matter of jurisdiction under the law based on the circumstances of the case. Regardless the route, third-parties will need to recognize that there is a presumption under Indiana law that children belong with their parents. In cases where the parents are not on board with the change, the third parties will have to present evidence negatively reflecting on the parents’ abilities in order to rebut that presumption. In the case of relatives, this can cause considerable strain on family relationships and can be very difficult.

Title 29 of the Indiana Code covers guardianship, but not third-party custody. The probate court has exclusive jurisdiction over guardianship cases. In most Indiana Counties, there is not a separate, designated court for probate matters, so this may seem like a distinction without much meaning. However, what appears to the lay person to be the same court their neighbor went to for a small claims case is a court that convenes in different capacities-one of which is probate. As a rule of thumb, people seeking to take custody of a minor child should petition for guardianship in the probate court in the following circumstances:

  1. Both of the child’s biological parents are deceased;
  2. There was a dissolution of marriage, but one of the parents is now deceased;
  3. The biological parents are still married, but are not capable of parenting in the best interests of the child;
  4. The child was born out of wedlock and there has been no determination by a court as to who the father is; or
  5. The child has not be determined to be a Child in Need of Services (CHINS case), or the juvenile court does not have jurisdiction over the custody issues.

(See, Saundria Bordone, Kid’s Voice of Indiana & Derrell Watson-Duvall, Law Center of Indiana, Guardianship and Third-Party Custody Law, September 2012).

Conversely, if there has been a divorce proceeding (or paternity action) and that court has already rendered a prior custody decision, that court will maintain exclusive jurisdiction over all custody decisions regarding the minor child until he or she is emancipated (no longer considered a minor). Although the original purpose of the case was to dissolve a marriage or determine paternity, that court has authority to modify custody and has specific authority to grant custody to non-parents in appropriate cases.

Indiana Guardianship and Custody Attorney

If you are concerned about a minor child and need legal counsel evaluating a third-party custody or guardianship matter, please give us a call. The legal professionals at Thomas E. Scifres, P.C. assist clients in a wide variety of guardianship-related matters. If you have a child’s best interests at heart, we stand ready to advise and assist you toward a better future for that child.

Thomas E. Scifres

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