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Third Party Custody vs. Guardianship

Third Party Custody vs. Guardianship

On the surface, third party custody and guardianships seem very similar. They both grant legal and physical custody of a child to a non-parent. Third party custody and guardianship, however, are used in different scenarios and the differences are important.

Third Party Custody

Any person other than a parent can seek third party custody. Third party custody is used when a child’s parents are divorced or divorcing and when paternity has been established. When someone seeks third party custody, they do not file a new suit, but join an existing action. So, if a child’s parents are divorced or are in the process of divorcing, the third party must file a petition for third party custody in the court case for the parents’ divorce. The divorce court will have jurisdiction until the child turns 19 or one of the parents passes away. Similarly, if the child’s paternity has been established, a third-party custodian must file a petition in paternity court because paternity court has jurisdiction over the child until they turn 19.


A third party can petition to be a guardian (rather than a third-party custodian) in the following circumstances:

  1. both of the child’s parents have passed away;
  2. the child’s parents were divorced, and one of the parents has passed away;
  3. the child’s parents are still married to each other;
  4. the child was born to unmarried parents and paternity has not been established; or
  5. the child has been found to be a Child in Need of Services (CHINS) because the Department of Child Services has filed a CHINS case and the CHINS case remains open.

To petition for guardianship, the person files a new case with the court – they do not join a preexisting case like they do in third-party custody cases.

If you are a third party trying to seek legal and physical custody of a child, contact McNeelyLaw today at 317-825-5110 to talk to an experienced attorney who can help navigate you through your case.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

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