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The Difference Between Guardianship and Custody

Guardianships require certain formalities, and have certain reporting requirements. Custody orders do not have these same requirements.

Are only parents entitled to “custody” orders? This is clearly not the case under Indiana law. The custody statute in Indiana allows for non-parents (in fact, any person “other than a parent”) to seek custody of a child by initiating an independent cause of action. Extended family members have utilized this statute to obtain custody of children. Petitioners under this statute have no obligation to meet the “de facto custodian” definition to make such a petition.

There is an important strong presumption under Indiana law that a child’s interests are best served by placing the child with a natural parent. This presumption can be overcome by evidence proving that the child’s best interests are substantially and significantly served by placement with another person.

It is a difficult burden to overcome, however, to prove a parent unfit. When a natural parent is unable to care for a child adequately, a court may place a child with a non-parent.