Grandma has been raising her grandson for months. She feeds him, gets him to school, sits with him when he’s scared at two in the morning. Then a school secretary looks at his birth certificate, doesn’t see her name, and asks a question that stops her cold: are you his legal guardian?
In this episode of the Children First Family Law™ Podcast, Krista Nash talks with Colorado attorney Lisa Shellenberger, managing partner at Setter Roche Smith & Shellenberger, LLP, who practices at the intersection of domestic relations, juvenile law, and probate guardianship. Lisa and Krista walk through what happens when someone other than a parent needs real legal authority to care for a child, and why the wrong choice of legal path at the outset can cost a family months of unnecessary conflict.
Guardianship and Custody Solve Different Problems
Most family lawyers instinctively file in domestic court, the venue most people associate with divorce and custody. But as Lisa explains, that is not always the right tool. A custody case, formally called an allocation of parental responsibilities in Colorado, asks a court to divide parenting responsibilities between people who remain parents. A guardianship case, filed in probate court, asks the court to suspend a parent’s responsibilities entirely so someone else can step into that role. The two are not interchangeable, and picking the wrong one can put a family through litigation it never needed.
Who Has Standing to Ask a Court for Help
Custody cases are narrow about who can file. A non-parent generally needs to show they provided the child’s day to day care for more than 182 days, and that they didn’t lose that role more than a year before filing. Guardianship is far more open. Any interested person can petition, which gives a much wider circle of relatives and caregivers a path to protect a child in crisis.
Why Speed Often Favors Guardianship
Guardianship exists specifically for situations where a parent is unable or unwilling to safely care for a child, and Colorado’s probate courts are built to move fast. An emergency guardianship can hand a caregiver a clear, enforceable order in a matter of days, something schools, doctors, and insurers all recognize immediately. Custody orders, by contrast, tend to be slower to obtain and far less black and white for a school administrator to interpret.
The Constitutional Rights Every Parent Holds
None of this erases a parent’s fundamental right to raise their own child. Lisa points to Troxel, the Supreme Court case that requires courts to presume a fit parent is acting in a child’s best interest unless a non-parent can prove otherwise by clear and convincing evidence. Guardianship’s unable or unwilling standard exists in that same constitutional shadow. Wanting to give a child a more stable home is not enough. The bar is safety, not preference.
What Happens When a Parent Gets Better
A guardianship can end as suddenly as it began. When a parent shows the court they are now able and willing to safely parent, the guardian’s authority can disappear immediately, even after years of caregiving. Lisa recommends caregivers think ahead about how to protect that relationship, including filing a parallel custody case as a safety net before a termination hearing ever begins.
Choosing between guardianship and custody is rarely about which path feels more familiar. It’s about which one actually serves the child in front of you, and getting it right the first time can spare a family months of avoidable conflict.
If you want to learn more about the Children First Family Law Podcast, check out www.childrenfirstfamilylaw.com/when-youre-raising-someone-elses-child-guardianship-custody-getting-legal-authority