Often, a situation arises in which neither of the child’s biological parents is able to care for him or her. It then becomes necessary for a non-parent to take legal steps to be appointed guardian or custodian of the child.
The terms “guardianship” and “third-party custody” are often used interchangeably. However, although the concepts are similar, it is important to be aware of the differences between the two. This is imperative to help you figure out which option fits your needs, should you find yourself in this situation.
The major differences between guardianships and third-party custody are as follows:
- Guardianships are filed in Probate Court.
- The potential guardian must prove that the parent(s) is/are unfit, unwilling, or unable to care for the child.
- A guardianship requires an annual reporting to the Probate Court as to the well-being of the child.
- Third-party custody petitions are filed in Family Court.
- A potential third-party custodian must prove that “each parent is unfit, unsuitable or unable to be custodian, or the welfare of the child requires, and it is in the best interests of the child” to be placed in the potential custodian’s care. (Mo. Rev. Stat. § 452.375.5)
- Third-party custody does not require annual reporting to the Court.
It is important to be aware that neither process requires termination of parental rights of the biological parents. Other important differences between the two court actions are:
- A legal guardianship remains in place unless a parent petitions for the guardianship to be set aside. The court must then make a finding that the biological parent is now fit, willing, and able to care for the child, and it is in the best interests of the child that the guardianship be set aside.
- A judgment for third-party custody remains in effect until modified by the Family Court.
- Modification of third-party custody requires showing that a change in circumstances of the child or his/her custodian has occurred and that a modification is necessary to serve the best interests of the child.
In both guardianships and third-party custody, the court is looking out for the best interests of the child. Sometimes that means the child returns to the custody of one or both parents. Other times, the child remains with a guardian or third-party custodian. But the decision will always be made by the court with the child’s best interests served.
With a combined 30 years in family law, the attorneys at Raza & Jones, LLC, can help you determine which of these avenues is right for your situation. To schedule a confidential consultation, call 314-449-8830.