What Is the Difference Between Custody and Guardianship?

Often Oregonians are confused about which direction to go in a Family Law matter. Sometimes a potential client will call my office asking for one legal process, when really their legal matter is better suited by another solution. One of the most common inquiries of third party potential clients (potential clients that are grandparents, close relatives, or other non-legal parents of minor children) is the difference between Guardianship and Custody.

In order to obtain guardianship over a someone that is not your legal child, the child must be under 18 years of age, and the court then determines whether the evidence shows that the minor is “in need of a guardian.” ORS 125.305(1)(a), 125.005(6). The standard then used is similar to custody in that the court determines the guardian suited for the best interest of the child.

In order to obtain custody of a child the standards are very high for a third party. Not only must a third party prove that they have had a substantial amount of time in raising the child, they also must prove that the biological parents of the child are unfit for parenting. ORS 109.119.

Of course both procedures are made much easier when the biological parents consent to the third party. The main difference between Guardianship and Custody is that while Guardianship is easier to obtain, Custody is more permanent and has a wider breath of decision making for the child.

Whether filing for Third Party Custody or Guardianship, the process can be extremely difficult and nuanced. Feel free to call Landerholm Family Law at (888) 981-9511 to schedule a consultation to discuss the process that is right for you

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