blog home Child Allocation Guardianship Versus Custody: What’s the Difference?

Guardianship Versus Custody: What’s the Difference?

By Leslie Fineberg on August 14, 2014

In some instances, when a parent cannot take care of a child, a person who is not the child’s parent can be granted legal guardianship of that child. While the duties and responsibilities of a guardian are, for all intents and purposes, the same as for a parent who has legal custody of a child, guardianship and custody are not the same in the eyes of the law.

Guardianship is much easier to attain and almost anyone can be appointed the guardian of a minor. While a guardian is usually a relative, he or she does not have to be related to the child.

The requirements for filing for guardianship are fairly liberal in Illinois. As long as you are over 18-years-old, not a convicted felon, “not of unsound mind,” and not disabled and being looked after by a guardian yourself, you can qualify to be a guardian.

If a parent objects to a guardianship and can prove that he or she can care for the child and make the day-in-and-day-out decisions for that child, the petition to gain guardianship will most likely be denied.

If the legal parent of the child wishes to terminate or change a guardianship, then it is fairly easy for that person to do so.

Gaining legal custody of a child when you are not the parent, on the other hand, is extremely difficult.

If you are not the parent of the child, you cannot even file for legal custody if that child is still living with the parent(s). That being said, if the child is living with a relative who is not a parent, such as an aunt or a grandmother, you can seek legal custody of the child. A temporary or involuntary absence of a child from a parent does not necessarily mean that child is “not in the physical custody” of a parent, however.

In other words, you cannot simply take a child away from a parent and expect to gain custody of the child because he or she is now not in the physical custody of the parent.

Even if you meet all of the criteria for filing for legal custody that does not guarantee that you will get it. The court still has to consider what it is in the “best interest of the child.”

Guardianship and custody issues can get complicated and emotional. If you have questions concerning these issues you should seek the counsel of an experienced and dedicated family law attorney at Nottage and Ward in Chicago. Call us at (312) 332-2915 or contact us online to schedule a case review.

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