Custody Vs. Guardianship Orders, New York Differences

client with lawyer on guardianship case

This article discusses the differences between custody and guardianship orders for children under 21 years of age. It does not discuss cases brought in Supreme Court to appoint guardians of incapacited adults under Article 81.

It is important to realise that although guardianship cases involving incapacitated adults can deal with both guardianship of the incapacitated person’s money and property, cases in Family Court deal only with  what is called “guardianship of the person”, and do not involve money or property issues. 

In New York State there are very few differences between custody orders and guardianship orders, but the main differences that exist are discussed below. Get information about child custody.

Custody Orders Only Go Up To Age 18, For Guardianship Its Up To 21

All of the cases that I have seen in the Family Court involving “children” between the ages of 18 and 21 have been cases brought in order to allow the subject “child” to obtain Special Immigrant Status in the immigration courts in order to get a green card. In order to get Special Immigrant Status, it is necessary to have a court order which includes special findings of fact that the child has been abandoned or neglected  by one or both parents.

There are lawyers or law firms that specialize in these types of cases and are very well conversant with everything that must be included in the court order in order to satisfy immigration. 

In contrast, in New York, custody orders end at age 18, and the courts lack the power to make custody or visitation orders involving children over 18, who are in almost all respects treated as legal adults with almost all of an adult’s legal rights. 

Guardianship Petitions Are Often Used When Both Patents Are Deceased

In the Family Courts, the vast majority of petitions are filed by pro se litigants, although these litigants may hire lawyers or be assigned free  attorneys at a later date. When a pro se litigant files a case, the petition clerks figure out what type of case to file, and when both parents are deceased they usually decide that the case should be filed as a guardianship case.

Filing this type of case as a guardianship case allows the case to be filed without requiring the prospective guardian to serve anyone, although the prospective guardian has to be fingerprinted. Actually guardianship cases in the Family Court are subject to many of the procedural rules in the Surrogate’s Court Statute. 

Sometimes the petition rooms draft orders of guardianship just because the person filing is not a mother, father, or grandparent. In my opinion, the petition clerks are just “making this up” and there is no legal basis for requiring other relatives or even non-relatives to file for guardianship instead of for custody. If the mother of the child or children is deceased and the father wants to file for custody, it may be easier for him to file for guardianshiip instead.

Guardianship Laws Differ In Different States

State Laws can vary. While custody orders and visitation orders are pretty much the same in all states and can be enforced in all states, Guardianship orders may be treated differently in different states, and the prospective custodian or guardian should consider this if he or she lives in another state or is planning to move out of NY. 

There Are Different Implications When The Child Is In Foster Care

A person who obtains guardianship of a child who is in foster care may qualify for additional services, and also has the power to make certain medical decisions without first obtaining consent from the parents. In these situations, it is essential to obtain the services of an attorney who is well versed in all of the intricacies of  the Foster Care system.

While A Final Order Of custody Lasts Until Age 18, An Order Of Guardianship Can Be For A  Limited Duration

This could be useful in a situation where a parent goes into the military or is temporarily incapacitated for medical reasons. In these situations, the parent will not have to prove a change of circumstances in order to get the child back and can avoid a tough custody battle. 

Understanding Standby Guardianship Orders.

Orders of Stand By Guardianship are often found in wills. For example, the parent with custody puts a provision in his or her will that upon death a person will be appointed as guardian. It is important to note that if this arrangement is challenged in court, the court will concentrate on the best interests of the child, and will likely give little or no weight to the wishes of the now deceased parent. 

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