Guardianship Vs. In Loco Parentis

The Differences Between Guardianship & In Loco Parentis

Our Arizona Family Lawyers take a look at In Loco Parentis and Guardianship. We discuss the differences between guardianship and In Loco Parentis and discuss when one is the best option over the other. As Arizona continues to get a surge of families moving to the Valley of the Sun, many children are having adults stepping in and acting like parents who are not legally the parents.

Many people have children in their lives that aren’t their own, but they love like family. And sometimes, a time may come where you would like a more official place in that child’s life. If so, you’ve probably heard the terms “guardianship” and “in loco parentis” tossed around. You may be wondering if they are used interchangeably, or if they have different uses. You also may be wondering whether it applies to parenting time, or physical custody, or legal decision-making, also known as legal custody. Read on to learn more about these custody issues in Arizona. If you have additional questions, contact our Arizona Family Law Firm at 480-833-8000 for your free case evaluation.

Guardianship Vs. In Loco Parentis.  The Differences Between Guardianship & In Loco Parentis In Arizona

What Is Guardianship?

Legal guardianship is when someone other than a child’s parent takes over physical and legal custody. This can happen when one or both of a child’s parents pass away. A legal parent can also agree to give a third party guardianship of their child through a consent guardianship.

Consent guardianship must be offered by the legal parent(s)- a third party can’t petition the court for a consent guardianship. The parent can also withdraw consent to guardianship from a third party at any time. If the parent doesn’t agree to a consent guardianship, the third party will need to instead petition the court for non-parent custody.

What Is In Loco Parentis?

Someone who is acting in loco parentis is someone who is not the child’s parent, but has such a meaningful relationship with the child that they perform some functions and responsibilities of a parent. They should basically be the child’s parent without the official adoption. In loco parentis can be granted to either an individual or an organization. An important detail about this type of custody is that it can be granted without taking away a parent’s custodial rights. Like other child custody determinations in general, all decisions regarding in loco parentis will be made with the child’s best interest in mind.

Where Can I Find The Regulations For In Loco Parentis & Guardianship?

The legislature regarding in loco parentis can be found in Arizona Revised Statutes Section 25-409. You can review it for yourself here: 25-409 – Third party rights.

There are four requirements that must be met before a non-parent can be granted custody of a child in Arizona:

    1. The person seeking custody stands in loco parentis, or in the place of a parent, for a child;
    2. If the child has a legal parent who wishes to have custody, it would be significantly detrimental to the child to remain or be placed there;
    3. The court hasn’t issued custody orders for the child for at least one year, unless it is an emergency situation and the child is in danger; and;
    4. One of the following is met:
        a. One of the legal parents has passed away;
        b. The child’s parents aren’t married when the petition is filed, or;
        c. The parents are in the midst of a divorce or legal separation.

This statute also details Arizona family laws for non-parent visitation rights.

One of the following four requirements must be met for a non-parent to be granted visitation of a child:

  1. One parent has been missing or deceased for at least 3 months;
  2. The child was born to unmarried parents, and the parents remain unmarried at the time the petition is filed;
  3. If it is a grandparent seeking visitation, the child’s parents must have been divorced for at least 3 months; or
  4. If the petition is for in loco parentis visitation, the parents’ divorce must still be pending.

How Do I File a Petition For Third Party Visitation?

Many of our clients come to us not seeking a parental role in a child’s life per se, but the right to visit with the child. If the child’s parent isn’t amenable to granting you visitation, you might need to file a petition for third party visitation with the court. The petition should detail all the reasons you should have a role in the child’s life, and the court will grant it if it meets all the applicable state law requirements and granting the petition would be in the child’s best interest.

There are several factors the court will consider when weighing in on a petition for third party visitation, and they are laid out by A.R.S. § 25-409. The judge will consider the motivations of both the person seeking visitation and the person denying it. The judge will also look at how much visitation is being requested, and whether that would have a negative impact on the child’s regular schedule. The court will also examine the historical relationship between the person seeking visitation and the child, if there is any. If both parents have passed away, the judge will consider the importance of maintaining a relationship with extended family members. Your petition should be written keeping these factors in mind.

Filing Your Petition in Arizona Family Court

Your petition should be filed in the court where any previous orders were issued from, if applicable. You will also need to file an affidavit of facts that support your petition. Copies should be served on the child’s parents, guardian or guardian ad litem, a third party with legal or physical custody, and any other person or agency that has been involved in the child’s custody. The court will either rule on your petition or hold a hearing on the matter. If it proceeds to this point, you will need to prevent a clear and convincing case to the judge of why they should grant your petition. For assistance on every step from start to finish, call 480-833-8000 to schedule your free consultation with one of our Arizona custody lawyers today.

Choosing Between Guardianship Or In Loco Parentis

There are several questions that you will need to ask yourself before making this important decision. Do the parents of the child in question have custody, or consent to giving you guardianship? Do your circumstances meet the Arizona state requirements for third party visitation? Are you a grandparent of the child, or more distantly or not legally related to the child? Plus, are you looking to have the child full time, or just visitation? Also, are you also seeking legal decision-making? An Avondale family law attorney can help you weigh all of your options based on the specific facts of your case. Call 480-833-8000 to schedule your free consultation with our firm.

High Quality Legal Services Your Family Deserves At Rock Bottom Prices

After reading all of this information about third party custody rights, you may justifiably be feeling overwhelmed. Mistakes in the petition process can be costly in terms of money, and more importantly, time with a child. You may have to wait 12 months before even getting a chance to correct your mistakes. So while filing a petition for third party custody on your own might save you money up front, it can end up being far more costly in the long run. Our dedicated Arizona family law attorneys from My AZ Lawyers offer affordable retainer fees and budget-friendly payment plan options. Learn more about the difference we can make in your case with your 100% free case evaluation. Use our online form or call (480) 448-9800 to schedule your free consultation today!



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