How Does Divorce Impact Guardianship?

How Guardianship Is Affected by Divorce

Divorce is stressful enough, but when children are involved, it is critical to take the right steps to establish a practical and effective custody arrangement. However, if you and your spouse are legal guardians and decide to get divorced, you may wonder how your guardianship may be impacted. Or, if you and your spouse are biological parents but one or both of you become incapacitated, you may be concerned about who gets custody of your child.

We answer these questions and more below. If you have any questions, reach out to our firm at (845) 605-4330!

Guardianships in New York

By definition, guardianship is a legal arrangement where a court gives a person the legal right to make decisions for someone else who cannot make decisions for themselves. The ward is the person for whom the guardian makes decisions. As such, guardianship is often used for children, incapacitated adults, and developmentally disabled individuals.

Types of Guardianships in New York

Guardianship involves making decisions for someone who cannot do so themselves, but those decision-making powers vary depending on the type of ward and guardianship arrangement in place. That being said, New York identifies 4 different types of guardianship, all of which can be temporary or permanent:

Guardian of the person: A guardian of the person can make life decisions for the ward like health care, education, and welfare decisions.

  • Guardian of a child: A person can be appointed guardian of a child if the ward is 17 or younger and not married or serving in the military. The guardianship can be over the child’s person or property and will end when the child turns 18.
  • Guardianship of an incapacitated adult: An incapacitated person (AIP) is someone who is 18 or older than needs help caring for their personal needs or managing their property and financial affairs. In New York, this kind of guardianship is often called an Article 81 guardianship.
  • Guardianship of a developmentally disabled person: This type of guardianship is granted over an intellectually or developmentally disabled person who has difficulty making decisions for themselves.

Guardian of the property: A guardian of the property handles decisions about the ward's money, investments and savings as directed by a Judge. A guardian of the property must file an annual report about the property.

Guardian of the person and property: This kind of guardian has responsibility for both the ward's life decisions and the ward's property.

Guardian ad litem: A guardian ad litem is assigned by a Judge to act for a person during a court case when they cannot defend their rights or protect their own interests.

Guardianship Is Not the Same as Custody

Although they are similar, guardianship and child custody are not exactly the same. The difference between guardianship and custody lies in who the caretaker is, as guardians are not the child’s biological parents while custodians are the child’s biological parents. Guardians are also subject to longer-term arrangements, whether it be until the ward dies or until the ward reaches 18. Custody arrangements, on the other hand, are more flexible because they can be modified when circumstances change.

Guardianship, Child Custody & Divorce

When two parents get a divorce, they must establish a child custody agreement. In New York, custody is determined based on the child’s best interests, which means that guardians may get custody over a child rather than the biological parents. As such, a judge will evaluate several factors to determine what kind of custody arrangement is in the child’s best interests. These factors include, but are not limited to:

  • Stability in the home
  • Who the primary caretaker is
  • Childcare arrangements
  • The parents’ or guardians’ mental and physical health
  • Drug and alcohol use
  • The presence of spousal abuse
  • Abuse, neglect, abandonment, and interference with visitation rights
  • Finances of each caretaker
  • Educational opportunities for the child

A court generally will not grant custody to legal guardians if a child is already in the custody of their biological parents, as doing so would be considered against the child’s best interests. However, there may be some instances where biological parents lose custody of their children and must turn over custody to a legal guardian. For instance, if a mother has sole physical custody and becomes incapacitated, the court may appoint a legal guardian over the child rather than allow the drug-abusing father to have custody rights.

Custody arrangements may also change if two biological parents become incapacitated as a result of a car accident and thus, cannot care for their child. In that case, a judge may appoint a legal guardian over the child if circumstances call for it.

If two legal guardians get a divorce and the biological parents are deceased or have terminated their legal parental rights, then they will have either joint or full custody of the child until the child turns 18 or for the duration of the child’s life, depending on the type of guardianship arrangements already in place.

Helping Parents & Children Succeed

In our experience as Westchester County divorce lawyers, we’ve seen how difficult it can be to work out a mutually agreeable custody arrangement between divorcing spouses, whether they be biological parents or legal guardians of a child. While the child’s best interests always come first, our attorneys also focus on achieving favorable resolutions on behalf of the caretakers, too. Our goal is to protect the best interests of individuals and families alike, no matter how complex their family legal matter may be.

To discuss your situation with us and learn about your options, contact our firm online or at (845) 605-4330!

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