Co-authored by Sophya Qureshi Raza and Misty A. Watson
Often, a situation arises where neither of a child’s biological parents is able to care for the child. 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 guardianship and third-party custody to know which option fits your needs if you find yourself in this situation.
The major differences between guardianships and third-party custody are as follows:
- Guardianships
- 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
- Third-party custody petitions are filed in Family Court.
- Third-party custody petitions may only be brought when a divorce or other custody proceeding is already pending.
- 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 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.
Posted by Attorneys Sophya Qureshi Raza and Misty A. Watson. Raza practices family law where she effectively guides clients through dissolution of marriage, modifications of prior judgments, and resolving child custody and paternity disputes. She also helps families with legal guardianships and conservatorships for the elderly and disabled. Watson’s practice focus is estate-related: planning, administration, and probate. She creates trusts, wills, financial, and health care powers of attorney, guardianships, and conservatorships.