In some situations, it may be appropriate to file for guardianship of a minor as opposed to filing for child custody.  Guardianship cases are typically filed when a child’s parent has died, is incarcerated, has been deported or is physically or mentally disabled and unable to care for the child.  However, these instances do not preclude the filing of a child custody petition.  Guardianship grants one the legal authority to take care of a child; the guardian has the same power of a parent (and to some extent more than a parent).  Child custody, on the other hand, grants one the authority to make all major decisions for the child, including medical, education, as well as the day to day decisions that need to be made.  Both require the courts use the “best interest of the child standard” even though the requirements for either may seem stringent. 

          However, there are some legal and practical differences between the two, here is a list of them:

1. Who May File:

         Guardianship-    A non-parent, non-relative may file 
         Custody-    A non-parent may file, but there must be a finding of “extraordinary  
                                circumstances”

2.   Residency Requirements:

         Guardianship-  No minimum
         Custody-  Child must have been a resident of N.Y. for a least 6 months prior to
                              filing

3. Legal Status Requirements:

         Guardianship-  Petitioner must be legal resident or citizen of the U.S.
         Custody-  No requirements

4. Appointment:

          Guardianship-   May be designated by deed of guardianship, will or
                                            designation (must still be approved by a Judge)
          Custody-   May be granted by agreement or court order only

5. Courts:

         Guardianship- Can be brought in Surrogates Court or Family Court
         Custody-    Can be brought in Family Court or Supreme Court (as part of
                                Contested Divorce case only)

6. Qualifications of Person Filing:

         Guardianship-   Requires criminal background check, fingerprints, State
                                           Central Registry check (serious felony convictions prohibited)

         Custody-        Requires investigation by ACS or Probation Department
                                    (criminal background may be necessary)

7. Child’s Desires:

         Guardianship-  a child 14 years or older must give written permission
         Custody-  age of child varies, based on level of maturity of child
8. Termination:

         Guardianship-  may be revoked by release of parent, return of parent or  
                                          rehabilitation of parent
         Custody-   not terminated, but may be changed upon a finding of a
                               “substantial change in circumstances” of either

9. Preference:

          Guardianship-  there is no preference where parent is unable to care for child

          Custody-    either biological parent is preferred over a non-parent/relative

10. Necessary Parties:

          Guardianship-  the mother must be put on notice of the action if she is alive;
                                           the father must be put on notice if he was married to the
                                           mother, if he is on the birth certificate, if he signed an
                                           Acknowledgement of Paternity or if he is listed with
                                           NYS Putative Father Registry; and any other parties who the
                                           child lives with at time of filing
          Custody-   the only parties that must be put on notice of the action are the
                                parents or persons who have legal custody
11. Child Support:

         Guardianship-   may seek support from either parent legally, but may only
                                           get public assistance
         Custody-    may seek support from either parent or stepparent

12. Child Visitation:

         Guardianship-   no court order necessary
         Custody-   court order may be necessary if other parties do not agree

13. Duration:

         Guardianship-   may take up to a couple of months, trials are rare
         Custody-   may take up to years, especially where trials are required

14. Costs & Fees:

          Guardianship-  minimal if any costs
          Custody-  may include forensics, law guardians, etc. fees

         Although it may be much more practical and efficient to proceed with guardianship, there are particular cases where this may not be an option.  Conversely, although it may be preferable to have stability by seeking child custody, there are instances where this is not an option.  If you are not sure of which petition to file, it is always advisable to speak to a experienced family law attorney.
Feel free to contact my office to discuss your guardianship and child custody matters.