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Is a guardianship or custodianship better for your grandchildren?

If your grandchild needs legal protection after their parent dies or is unreliable, do you know what action to take? Do you want to petition for custody or guardianship? Which one is better for your unique situation?

The answer involves the complicated field of New York child custody law. Whatever happens, the judge will rule in the best interest of the child.

Is full legal custody the right path?

After two years of your grandchild living in your home because of an absent parent, you can file for custody. Typically, only parents have "custody" (legal or physical) of their children. However, you do not have to be a parent to petition for these rights.

If your grandchild's parents are still in the picture, that is, they would still like to be involved in the child's life, you may not be eligible to apply for full custodianship. However, if those parents are unfit or unstable, you may be able to take over this role permanently.

Before filing for formal custody, keep the following in mind:

  • There is an "extraordinary circumstance" such as: sickness, prison, neglect, abuse, drug or alcohol abuse, and other serious acts can qualify.
  • What is in the child's "best interest" such as: social and family relationships, the child's happiness, education, medical and psychological needs, etc.
  • "Informal custody" of primary caregivers is lawful custody but it does not give you full legal rights. You will need additional court orders to make medical or other important decisions.

Then what about guardianship?

A guardianship is usually the most appropriate path for grandparents. It will allow you to act as a caregiver temporarily or long-term. A guardianship creates a flexible middle ground between parent and child. It allows the child to stay with family while also giving you more rights than a caregiver.

A petition for a minor grandchild guardianship usually requires a criminal record and child abuse background search. If immigration or visa issues are a concern, you may need legal help at this stage, as background checks can complicate matters.

If you need to protect your grandchild from their parent's decisions or circumstances, you may want to explore your legal options. Your care and protection could be their most important lifeline.

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