When a parent cannot care for a child due to illness, incarceration, addiction, or another hardship, New York law provides legal options for trusted adults to step in. Under Article 6 of the Family Court Act (FCA), both guardianship and custody allow non-parents to assume responsibility for a child. But the two paths differ in significant ways.
At Gilmer Law Firm PLLC, we help families throughout New York City navigate these complex issues. Whether you are considering petitioning for guardianship or involved in a custody dispute, understanding these differences is the first step in making an informed decision.
Custody in New York Family Court
Custody refers to the legal right to care for a child and make important decisions about their upbringing. There are two main forms:
- Legal custody – authority to make major decisions affecting the child’s education, health care, religion, and general welfare.
- Physical custody – responsibility for the child’s daily residence and care.
Under FCA § 651, Family Court may award custody to a parent or, in limited cases, a non-parent. Courts usually prefer parental custody unless “extraordinary circumstances” exist, such as:
- Abuse or neglect
- Abandonment of the child
- Chronic substance abuse or untreated mental illness
- Incarceration or long-term absence
The best interests of the child guide every custody decision. A New York custody attorney can help you demonstrate why granting you custody meets that standard.
Guardianship in New York
Guardianship, established under FCA § 661 and the Surrogate’s Court Procedure Act (SCPA), allows a caregiver to assume broader legal authority than custody alone. A guardian may:
- Enroll the child in school
- Consent to medical treatment
- Apply for public benefits
- Make important long-term decisions
Guardianship can continue until the child turns 21, which makes it especially useful in cases involving immigration, foster care, or children over 18 who still require support. A Brooklyn guardianship attorney can help relatives, foster parents, and family friends secure this legal arrangement.
Key Differences Between Custody and Guardianship
| Feature | Custody | Guardianship |
| Statute | FCA § 651 | FCA § 661 & SCPA |
| Who Can File? | Parents or relatives | Any responsible adult |
| Legal Standard | Extraordinary circumstances for non-parents | Parental unavailability or consent |
| Duration | Until age 18 | Up to age 21 |
| Authority | Child-rearing decisions | Broader financial and legal powers |
| Courts | Family Court | Family or Surrogate’s Court |
When to Seek Custody vs. Guardianship
- If you are a parent seeking to assert or protect your rights, pursuing custody is the correct path.
- If you are a grandparent or relative stepping in temporarily, guardianship may offer more flexibility.
- For children over 18, guardianship is the only available option.
- Foster parents often use guardianship when adoption is not feasible.
Because the choice depends on your unique circumstances, it is critical to speak with a qualified Brooklyn custody attorney who can guide you through the legal process.
Frequently Asked Questions
Q1: Can a parent regain custody after guardianship is granted?
Yes. A parent may petition to end guardianship, but they must show they are fit to parent and that it serves the child’s best interests.
Q2: Do guardians have to be related?
No. Courts allow close friends or foster parents to serve as guardians if they can meet the child’s needs.
Q3: What happens at age 18?
Custody generally ends, but guardianship may continue until 21 if the child consents.
Q4: Can custody or guardianship be shared?
Yes, though courts prefer arrangements with one primary authority to avoid conflict.
Q5: How long does the process take?
Uncontested cases can be resolved within a few months. Contested matters take longer and may involve multiple hearings.
Why Work With Gilmer Law Firm PLLC?
Our law firm has represented hundreds of families in New York guardianship cases and custody disputes. We know the challenges that come with both legal paths and provide:
- Tailored strategies to protect your family’s interests
- Experienced representation in contested Family Court hearings
- Assistance preparing petitions, collecting evidence, and appearing before the judge
- Compassionate advocacy that prioritizes the well-being of children
If you are facing a guardianship matter, consult a Brooklyn guardianship lawyer who understands both Family Court and Surrogate’s Court.
Contact Gilmer Law Firm PLLC
Whether you are petitioning for custody or pursuing guardianship, you need trusted guidance. Our attorneys are here to protect your rights and your relationship with the child in your care.
